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Orozco v. Berryhill

United States District Court, D. Oregon

November 22, 2017

LISA MARIE OROZCO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Lisa Marie Orozco (“Orozco”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.

         BACKGROUND

         Orozco was born in September 1972, making her forty years old on December 18, 2012, the amended alleged onset date. (Tr. 26, 229.) Orozco has an associate's degree, and her past relevant work includes time as an administrative assistant clerk and computer technician. (Tr. 76, PAGE 1 - OPINION AND ORDER 490.) She alleges disability due to club feet, depression, arthritis, and leg, feet, back, and hip pain. (Tr. 83, 106.)

         On April 30, 2013, images taken of Orozco's lumbar spine revealed “[n]o acute osseous or soft tissue abnormality” and a “[s]table appearance” when compared to images from 2011. (Tr. 332.)

         On May 12, 2013, Orozco visited Dr. Raymond Nolan (“Dr. Nolan”) for a consultative physical examination. Orozco reported that she was “born with club feet and underwent surgery as an infant, ” she experiences chronic pain in her feet, hips, and lower back, but her “foot pain is . . . the least of her issues, ” and she can “walk about one block” and sit and stand for thirty minutes at a time. (Tr. 347.) Based on his examination, Dr. Nolan concluded that Orozco (1) “would want to restrict bending, twisting and turning of the lumbar spine to [an] occasional basis, ” (2) can lift and carry twenty pounds occasionally and ten pounds frequently, (3) can sit for up to six hours in an eight-hour workday and stand or walk for up to two hours, (4) can occasionally go “up and down stairs and inclines, ” and (5) should “avoid walking on uneven terrain.” (Tr. 348.)

         On May 15, 2013, Orozco was referred to Dr. Rose Marie Reynolds (“Dr. Reynolds”), a psychologist, for a consultative psychological evaluation. Based on a clinical interview, mental status examination, and review of certain records, Dr. Reynolds diagnosed Orozco with dysthymia and a personality disorder not otherwise specified “with borderline, narcissistic and possible antisocial traits, ” assigned a Global Assessment of Functioning (“GAF”) score of sixty-five, [1] noted that Orozco exhibited “no obvious or significant problems with concentration or [her] ability to persist” during the clinical interview or on mental status examination, and found that Orozco is able to “understand and remember instructions, and “maintain her home, grooming, drive, prepare meals, care for her children, [and] use the internet and cell phone.” (Tr. 356-57.)

         On May 17, 2013, Dr. Irmgard Friedburg (“Dr. Friedburg”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 89.) Based on her review of the record, Dr. Friedburg concluded that the limitations imposed by Orozco's mental impairments failed to satisfy listings 12.04 (affective disorders) and 12.08 (personality disorders).

         On May 20, 2013, Dr. Mary Ann Westfall (“Dr. Westfall”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 90-91.) Based on her review of Orozco's medical records, Dr. Westfall concluded that Orozco can lift and carry twenty pounds occasionally and ten pounds frequently; stand or walk up to two hours in an eight-hour workday; sit for up to six hours in an eight-hour workday; and push or pull in accordance with her lifting and carrying restrictions. Dr. Westfall also concluded that Orozco does not suffer from any postural, manipulative, visual, communicative, or environmental limitations.

         In a medical source statement dated September 10, 2013, Orozco's treating physician, Dr.Maciey Druzdzel (“Dr. Druzdzel”), stated that Orozco has been diagnosed with “congenital club feet, ” Orozco's prognosis is “fair, ” Orozco's symptoms include pain in her feet, back, hips, and neck, fatigue, depression, and “diffuse arthritis, ” and Orozco has treated her condition with pain medication for twelve years and will continue do so “indefinitely.” (Tr. 369.) Dr. Druzdzel also opined that (1) Orozco's symptoms would interfere with her ability to maintain attention and concentration for thirty-four to sixty-six percent of an eight-hour workday, (2) Orozco can sit, stand, and walk less than two hours in an eight-hour workday, (3) Orozco needs a job that “permits shifting positions at will from sitting, standing, or walking, ” (4) Orozco would frequently need unscheduled work breaks, (5) Orozco's legs need to be elevated “above the horizontal” level for approximately fifty percent of the workday, even if she “had a sedentary job, ” (6) Orozco can rarely lift and carry less than ten pounds and never lift and carry ten pounds or more, (7) Orozco can never crouch, squat, or climb ladders or stairs, and (8) Orozco would be absent from work more than four days per month as the result of her impairments or treatment. (Tr. 369-72.) Dr. Druzdzel added that Orozco's limitations have been present since “late 2009.”[2](Tr. 372.)

         On September 17, 2013, Dr. Michael Dennis (“Dr. Dennis”), a non-examining state agency psychologist, completed a psychiatric review technique assessment, agreeing with Dr. Friedburg's finding that Orozco's mental impairments fail to satisfy listings 12.04 and 12.08. (Tr. 112-13.)

         Also on September 17, 2013, Dr. Myung Song (“Dr. Song”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 114-16.) Dr. Song agreed with Dr. Westfall's conclusion that Orozco can lift and carry twenty pounds occasionally and ten pounds frequently; sit for up to six hours in an eight-hour workday; and push or pull in accordance with her lifting and carrying restrictions. Dr. Song also agreed that Orozco does not suffer from any manipulative, visual, or communicative limitations. Unlike Dr. Westfall, however, Dr. Song concluded that Orozco can sit or walk up to six hours in an eight-hour workday; needs to be limited to no more than frequent balancing and climbing of ladders, ropes, or scaffolds (postural limitations); and needs to avoid concentrated exposure to extreme cold, vibration, and workplace hazards, such as unprotected heights and machinery (environmental limitations).

         On September 16, 2014, Dr. Druzdzel referred Orozco to Dr. Larry Maukonen (“Dr. Maukonen”), a neurologist, based on “pain and numbness in her upper extremities” and “questionable recurrent carpal tunnel syndrome.” (Tr. 593.) Orozco complained of pain in her elbows, forearms, neck, and shoulder, reported that she experienced numbness and tingling in her hands, and stated that she underwent bilateral carpal tunnel surgery in 2010 “with resolution of her hand symptoms that lasted until several months ago.” (Tr. 593.) Dr. Maukonen noted that he had previously diagnosed Orozco with “severe bilateral carpal tunnel syndrome, ” Orozco exhibited “5/5” strength “on individual muscle testing in the upper and lower extremities, ” nerve conduction studies “revealed bilateral carpal tunnel syndrome, ” and Orozco had “marked improvement in her nerve conduction since the study done” before undergoing bilateral carpal tunnel surgery in 2010. (Tr. 595.) Dr. Maukonen also diagnosed Orozco with bilateral tennis elbow, declined to “recommend further [carpal tunnel] surgery unless her symptoms worsen and her nerve conduction studies worsen, ” provided “stretching exercises for her upper arms, ” and suggested that Orozco “might benefit from wearing tennis elbow straps or physical therapy.” (Tr. 593-96.)

         On September 19, 2014, Dr. Druzdzel completed a second medical source statement at the request of Orozco's counsel. Dr. Druzdzel stated that he has served as Orozco's primary care physician since January 30, 2013, Orozco suffers from congenital club feet, osteoarthritis, fatigue, depression, and chronic pain in her neck, feet, and lower back, Orozco can lift and carry three pounds occasionally and one pound frequently, stand or walk for less than two hours in an eight-hour workday and sit for four hours, Orozco can never climb, balance, crouch, or crawl and occasionally stoop, kneel, reach overhead and at shoulder height, feel, and engage in fine and gross manipulation, Orozco's pain would interfere with her ability to sustain the attention and concentration needed to perform simple work tasks, fifty percent of the time Orozco could not sustain the attention and concentration necessary to perform simple work tasks, and Orozco would miss work at least twice a month even if she worked in a simple, routine, sedentary job. (Tr. 500-02.)

         On March 5, 2015, Orozco appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 48-80.) Orozco testified that she lives with her two teenage children, she underwent carpal tunnel surgery on both wrists in 2010, her surgeries “helped tremendously” and made her condition “a lot better it was, ” but her symptoms (numbness in her arms and difficulty using her “hands very long, or as far as typing goes”) returned at some point in 2014, she suffers from pain in her back, neck, feet, legs, and hips, her hip pain is “the worst, ” she cannot “move around more than [ten] minutes at a time, ” she needs to change positions “from sitting to standing to walking to going to bed” because her “legs go completely numb” if she “sit[s] too long, ” she picks her daughter up at school five days a week and occasionally drives to the store, and her children do most of the household chores, but she tries “to do as much as [she] can.” (Tr. 52-61, 66.) Orozco also testified that her typical day consists of waking up, doing laundry, and making dinner, but she can “never finish anything” because she either needs to “go lay down for a little while” or needs “to get up and walk for a little bit”; that she took “a plea bargain” on the advice of counsel in 2008, after her former employer accused her of a financial crime; that she spent roughly “six months” helping care for a sick friend post-onset date, but did not get paid for doing so; that she experienced the “first occurrence” of tennis elbow-related pain in “May of 2014”; and that she needs to lie down “every couple of hours” due to her pain. (Tr. 62-74.)

         The ALJ posed hypothetical questions to a Vocational Expert (“VE”) who testified at Orozco's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Orozco's age, education, and work experience could perform “sedentary work” that involved (1) “no more than frequent climbing and balancing, ” (2) “no more than frequent bilateral reaching, handling, grasping, fingering, and feeling, ” and (3) needing “to avoid concentrated exposure to temperature extremes and vibrations, as well as moving machinery, unprotected heights, and similar hazards.” (Tr. 77.) The VE testified that the hypothetical worker could not perform Orozco's past relevant work as an administrative assistant clerk or computer technician, but the worker could be employed as a charge account clerk, order clerk, and “call out operator.” (Tr. 77-78.)

         Responding to the ALJ's follow-up questions regarding customary tolerances in the employment setting, the VE confirmed that the hypothetical worker could not sustain gainful employment if she accumulated more than one unexcused absence per month or was off task more than five percent of the workday. (Tr. 78.) The VE added that her testimony concerning “absenteeism and being off task” was based on her thirty years of experience working as “a vocational rehabilitation counselor.” (Tr. 79.) The VE also testified that the worker described in the first hypothetical question would not be able to perform the jobs of charge account clerk, order clerk, and call out operator if she was limited to only occasional handling and fingering. (Tr. 79.)

         In a written decision issued on April 9, 2015, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 404.1520(a)(4), and determined that Orozco was not disabled. See infra. The Social Security Administration Appeals Council denied Orozco's petition for review, making the ALJ's decision ...


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