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Therrell v. Berryhill

United States District Court, D. New Mexico

April 21, 2017

KENNETH GERALD THERRELL, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing United States Magistrate Judge.

         THIS MATTER comes before the Court on plaintiff Kenneth Gerald Therrell's Motion to Reverse and Remand Administrative Agency Decision, filed February 18, 2016, and fully briefed on June 28, 2016. Docs. 18, 24, 25. The parties have consented to my entering a final judgment in this case. Doc. 12. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) applied the correct legal standards when formulating Mr. Therrell's residual functional capacity and presented a proper hypothetical to the vocational expert (“VE”). I further find that the ALJ properly relied on the VE's testimony in determining that there were a significant number of jobs available in the national economy that Mr. Therrell could perform. I therefore DENY Mr. Therrell's motion and AFFIRM the decision of the Commissioner.

         I. 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 and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its 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. A 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 the 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 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). “‘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. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that 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. § 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) the claimant is not engaged in “substantial gainful activity;” (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 (3) the impairment(s) either meet or equal one of the Listings[3] 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. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Mr. Therrell lives with his wife, [4] has a ninth-grade education, and has a history of working as a service technician for heating and cooling systems and in the construction trades. AR[5] 41, 42-46, 67, 171-73. Mr. Therrell was 55 years old when he applied for disability insurance benefits in July of 2012. AR 142. He originally alleged disability as of February 1, 2008, due to a heart condition. AR 13, 68, 142. The Commissioner denied his claim initially and upon reconsideration. AR 85-88, 91-96. Mr. Therrell requested a hearing before an ALJ, and ALJ John W. Rolph held a hearing on June 5, 2014. AR 29-66, 97-98. At the hearing, Mr. Therrell amended his alleged onset date to January 1, 2011. AR 35, 45.

         The ALJ issued his unfavorable decision on September 8, 2014. AR 10-28. The ALJ found that Mr. Therrell met the insured status requirement of the Social Security Act through March 31, 2012. AR 15. At step one, the ALJ found that Mr. Therrell had not engaged in substantial, gainful activity between his alleged onset date of January 1, 2011 and his date last insured. Id. Because Mr. Therrell had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded to step two. At step two, the ALJ found that Mr. Therrell suffered from the severe impairments of “minimal coronary artery disease with noncardiac chest pain; syncopal episodes; and degenerative disc disease of the cervical spine with disc protrusion of the C5-C6 vertebrae . . . .” Id. The ALJ found that Mr. Therrell had several nonsevere impairments: a gunshot wound to his left arm, injuries sustained by falling due to syncope, a cyst in his sinus, hypertension, hypokalemia, hypercholesterolemia, lung hypoinflation with bibasilar atelectasis, right-sided weakness in his arm and leg, anxiety with panic attacks, alcohol abuse, tobacco abuse, and post-traumatic stress disorder. AR 16-17. At step three, the ALJ found that none of Mr. Therrell's impairments, alone or in combination, met or medically equaled a Listing. AR 18.

         Because none of the impairments met a Listing, the ALJ moved to step four. At step four, the ALJ found that:

. . . the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except that he may never climb ladders, ropes, and scaffolds, and he must avoid all exposure to hazards such as dangerous machinery and unsecured heights. He is able to perform work tasks that do not involve operation of a motor vehicle.

Id. The ALJ found that Mr. Therrell was unable to perform any of his past relevant work as a service technician in heating and cooling, a tank inspector, a construction worker, or a maintenance worker. AR 22.

         At step five, relying on the testimony of the VE, the ALJ concluded that, through the date he was last insured, “there were jobs that existed in significant numbers in the national economy that the claimant could have performed, ” id., and that Mr. Therrell was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” AR 24. Accordingly, the ALJ found that Mr. Therrell was not disabled. Id.

         On July 24, 2015, the Appeals Council denied Mr. Therrell's request for review, making the ALJ's decision the final decision of the Commissioner and prompting this appeal. AR 1-4. Mr. Therrell ...


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