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Romero v. Berryhill

United States District Court, D. New Mexico

March 10, 2017

ANDREW T. ROMERO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (Doc. 19), filed September 29, 2016 (hereinafter “motion”). On January 3, 2017, Defendant filed a response (Doc. 23) to Plaintiff's motion and, on January 18, 2017, Plaintiff filed a reply (Doc. 24). In accordance with 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73(b), the parties have consented to have the undersigned United States Magistrate Judge conduct all proceedings and enter a final judgment in this case. See [Docs. 4 and 8]. The Court has considered Plaintiff's motion, Defendant's response, Plaintiff's reply, and the relevant law. Additionally, the Court has meticulously reviewed and considered the entire administrative record. [Doc. 13]. For the reasons set forth below, the Court FINDS that Plaintiff's motion should be DENIED in part and GRANTED in part and that the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) should be REMANDED for rehearing on the issue of availability of work that Plaintiff can perform.

         I. Procedural History

         On July 2, 2009, Plaintiff filed applications for Disability Insurance Benefits (hereinafter “DIB”) and Supplemental Security Income (hereinafter “SSI”), alleging disability that began on February 1, 2007 (Doc. 13-7 at 2-6).[1] Plaintiff's DIB and SSI applications were denied at the initial level on November 16, 2009 (Doc. 13-6 at 2), and at the reconsideration level on July 7, 2010 (id. at 11). Plaintiff requested a hearing to review the denial of his applications (id. at 18), and Administrative Law Judge Barry O'Melinn (hereinafter “ALJ”) conducted a hearing on November 15, 2011 (Doc. 13-4 at 2-43). Plaintiff appeared, represented by his former attorney, and testified. Id. at 7-33, 41. Vocational Expert Elizabeth Wheeler also appeared, by phone, and testified. Id. at 33-41. On March 13, 2012, the ALJ issued a decision (Doc. 13-3 at 11-20) (hereinafter “2012 Decision”) finding that Plaintiff “has not been under a disability within the meaning of the Social Security Act from February 1, 2007, through the date of this decision” (id. at 11). On May 8, 2012, Plaintiff requested that the Appeals Council review the ALJ's 2012 Decision. [Doc. 13-3 at 7]. On March 18, 2013, the Appeals Council denied Plaintiff's request for review on the ground that there was “no reason under our rules to review the [ALJ]'s decision.” Id. at 2. Shortly thereafter, on May 1, 2013, Plaintiff filed new applications for SSI and DIB benefits, alleging an onset date of March 14, 2012. [Doc. 13-17 at 4-10 and 13-14, respectively]. Plaintiff's 2013 DIB application was denied on May 6, 2013, on the ground that he did not qualify for disability benefits because he did not have enough work credits.[2] [Doc. 13-15 at 6]. Plaintiff's 2013 SSI application was denied initially on August 12, 2013 (id. at 9), and at the reconsideration level on December 30, 2013 (id. at 20). Plaintiff appealed the Appeals Council's March 18, 2013 ruling on his first claims to this Court, which subsequently issued a decision reversing and remanding that decision, on the ground that the ALJ impermissibly failed to discuss the weight he assigned to Dr. [K.] Glass's [November 2009] opinion.” Romero v. Colvin, 13-0458 SMV, Doc. 34 at 5 (D. N.M. September 8, 2014) (unpublished).

         Following remand, the Appeals Council issued an October 23, 2014 order that: (1) vacated the ALJ's 2012 decision; (2) remanded the case back to the ALJ; and (3) directed the ALJ to combine Plaintiff's two pending claim files, create a single electronic record, and issue a new decision on the consolidated cases.[3] [Doc. 13-14 at 44-45]. Pursuant to that order, the ALJ held a new hearing on August 26, 2015 (hereinafter “2015 Hearing”), at which Plaintiff appeared, represented by his current attorney, and testified. [Doc. 13-13 at 3, 9-27]. Vocational Expert Sandra M. Trost also appeared and testified. Id. at 27-30. At the 2015 Hearing, Plaintiff's counsel requested to amend the alleged onset date of Plaintiff's disability to September 8, 2008. Id. at 6-7. That request was granted by the ALJ. Id. On October 19, 2015, the ALJ issued a new decision (hereinafter the “2015 Decision”), finding that Plaintiff “has not been under a disability . . . from September 1, 2008 through the date of this decision.” [Doc. 13-12 at 6]. Plaintiff did not file exceptions to the ALJ's 2015 decision, and the Appeals Council did not assume jurisdiction within sixty days. Therefore, pursuant to 20 C.F.R. § 404.984(d), the ALJ's decision became the final decision of the Commissioner. On February 19, 2016, Plaintiff filed his complaint in this case. [Doc. 1].

         II. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d at 760 (citation and quotation marks omitted). An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted). While a court may not re-weigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citations omitted). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         III. Applicable Law and Sequential Evaluation Process

         For purposes of social security disability claims, a person establishes a disability when he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). In light of this definition for disability, a five-step sequential evaluation process (hereinafter “SEP”) has been established for evaluating a disability claim. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in “substantial gainful activity;” and (2) the claimant has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and either (3) the claimant's impairment(s) meet(s) or equal(s) one of the “Listings” of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his or her residual functional capacity (hereinafter “RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         IV. Plaintiff's Age, Education, Work Experience, and Medical History; and the ALJ's Decision

         Plaintiff was born on October 1, 1966, and was 41 years old on September 1, 2008, the alleged date of disability onset. [Doc. 13-12 at 5 and 20]. On October 22, 2015, the date of the ALJ's 2015 Decision, Plaintiff was age 49. Thus, Plaintiff was both a “younger person age 18-44” and a “younger person age 45-49”[4] at all times pertinent to the ALJ's 2015 Decision regarding his disability claims. Although Plaintiff suffers from several severe joint impairments, he has not challenged the ALJ's ruling on the basis of those impairments. Instead, Plaintiff asserts that the ALJ erred in his determination of the limitations imposed by his mental impairments, as well as that VE Trost provided unreliable information at step five of the SEP. Therefore, the Court will not discuss Plaintiff's physical or exertional limitations in any detail. It is sufficient to note that those physical impairments led the ALJ to find that Plaintiff now has the RFC only to perform “sedentary” work.

         Plaintiff's medical records include: progress notes dated March 8, 2012 from Valencia Counseling Services, Inc. (Doc. 13-20 at 2-6); psychiatric evaluation dated June 26, 2013 by Carol Lynn Hunter, CNS (Doc. 13-25 at 37-41); Mental RFC dated July 28, 2015 by Paul Weeks, LPCC (Doc. 13-28 at 19-22); treatment records for the period from October 4, 2013 to July 31, 2014 (Doc. 13-27 at 15-51), and the period from August 22, 2014 to July 7, 2015 (Doc. 13-28 at 24-48), from Valle del Sol; and treatment records from University of New Mexico Health Sciences Center for the period from October 22, 2013 to August 5, 2015 (Doc. 13-29 at 3-40). Where relevant, Plaintiff's medical records are discussed in more detail below.

         At step one of the five-step evaluation process, the ALJ found that, Plaintiff “has not engaged in substantial gainful activity since September 1, 2008, the alleged onset date.” [Doc. 13-12 at 8]. At step two, the ALJ found that Plaintiff has the following severe impairments: “degenerative disc disease of the lumbar spine, degenerative joint disease of the right hip, degenerative joint disease of the shoulders, osteoarthritis of the left metatarsal phalangeal joint status post[-]surgical fusion, an affective disorder, and an anxiety related disorder.” Id. At the third step, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).” Id. at 10. In so finding, the ALJ considered Listings 1.02 (major dysfunction of a joint, 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety related disorders). Id. With respect to the paragraph B criteria for these Listings, the ALJ found that Plaintiff has mild restriction of his activities of daily living, mild difficulties with social functioning, moderate difficulties with concentration, persistence or pace, has had ...

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