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Maestas v. Berryhill

United States District Court, D. New Mexico

March 28, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.


          STEPHAN M. VIDMAR United States Magistrate Judge

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand [Doc. 16] (“Motion”), filed on July 25, 2016. The Commissioner responded on October 17, 2016. [Doc. 20]. Plaintiff replied on October 28, 2016. [Doc. 21]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 10]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) erred in evaluating the opinion of consultative examiner Dr. Kenney. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (sentence four).

         Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted). Courts must meticulously review the entire record but may neither reweigh the evidence nor substitute their judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. The 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.” Id. While a court may not reweigh 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 [Commissioner]'s findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004)).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant must establish that 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. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) she is not engaged in “substantial gainful activity”; and (2) she 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 (3) her impairment(s) either meet or equal one of the Listings[3]of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If she cannot show that her impairment meets or equals a Listing, but she proves that she is unable to perform her “past relevant work, ” the burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for a period of disability and disability insurance benefits on October 20, 2011. Tr. 91. She alleged a disability-onset date of October 22, 2010. Id. Her claims were denied initially and on reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ Donna Montano held a hearing by videoconference on March 5, 2014. Id. Plaintiff appeared with her former attorney. The ALJ heard testimony from Plaintiff and from an impartial vocational expert, Evelyn R. Hartman. Tr. 91, 107-144.

         The ALJ issued her unfavorable decision on August 22, 2014. Tr. 91-102. She found that Plaintiff met the insured status requirements through December 31, 2015. Tr. 93. At step one, she found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. Id. Because Plaintiff had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded to step two. Id. There, she found that Plaintiff suffered from the following severe impairments: “obesity, inflammatory arthritis rule out Rheumatoid Arthritis (RA), psoriasis, abdominal hernia, right shoulder impingement with a full range of motion[.]” Tr. 93-94. At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 94.

         Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 94-96. Initially, the ALJ found that “[Plaintiff] has the [RFC] to perform the full range of light work as defined in 20 [C.F.R. §] 404.1567(b).” Tr. 94. Confusingly, though, later in the decision, the ALJ refers three times to Plaintiff's RFC as a “reduced range of light work.” Tr. 96. At step four, the ALJ found that Plaintiff was able to perform all of her past relevant work (as an employer interviewer, retail security guard, and as a mental retardation aide). Tr. 96-97. However, as is explicitly listed in the ALJ's decision, work as a mental retardation aide is classified as requiring medium exertion. Tr. 96. Of course, as Defendant concedes, medium exertion is more than (and thus would be precluded by a restriction to) either light work or a reduced range of light work. In any event, the ALJ ultimately found that Plaintiff had not been under a disability, as defined by the Act, during the relevant time period, and she denied the claims. Id.

         After the ALJ denied the claims, Plaintiff submitted additional evidence to the Appeals Council. See Tr. 2. Some of the evidence pre-dated the ALJ's decision, and other evidence post-dated it. The Appeals Council accepted the pre-decision evidence and made it part of the record. Tr. 2, 741-61. The Appeals Council considered it but found that it “[did] not provide a basis for changing the [ALJ]'s decision.” Id. On the other hand, the evidence that post-dated the ALJ's decision was not made part of the record, and the Appeals Council did not consider it. Tr. 2, 8-68, 76-80, 83-87. The Appeals Council found that the “new information [was] about a later time[, and therefore did] not affect the [ALJ's ...

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