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Fair v. Berryhill

United States District Court, D. New Mexico

April 25, 2017

BROOKE NOELLE FAIR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum (Doc. 20), filed January 13, 2017 (hereinafter “motion”). On March 16, 2017, Defendant filed a response (Doc. 22) to Plaintiff's motion and, on March 30, 2017, Plaintiff filed a reply (Doc. 23). 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 7]. 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. 15]. For the reasons set forth below, the Court FINDS that Plaintiff's motion should be GRANTED and that the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) should be REMANDED. .

         I. Procedural History

         On February 21, 2013, Plaintiff filed an application for Disability Insurance Benefits (hereinafter “DIB”), alleging disability that began on November 11, 2012 (Doc. 15-12 at 2).[1] On June 12, 2013, Plaintiff also filed an application for Supplemental Security Income (hereinafter “SSI”). Plaintiff's DIB and SSI applications were both denied at the initial level on September 6, 2013 (Doc. 15-8 at 4 and 8, respectively), and at the reconsideration level on November 1, 2013 (id. at 14). Plaintiff requested a hearing to review the denial of her applications (id. at 20), and Administrative Law Judge Ann Farris (hereinafter “ALJ”) conducted a hearing on August 6, 2015 (Doc. 15-5 at 2-43). Plaintiff appeared, represented by her former attorney, and testified. Id. at 7-36. Vocational Expert Leslie White (hereinafter “VE”)[2] also appeared and testified. Id. at 36-40. On September 22, 2015, the ALJ issued a decision (Doc. 15-4 at 5-19) finding that Plaintiff “has not been under a disability within the meaning of the Social Security Act from November 11, 2012, through the date of this decision” (id. at 5). On October 5, 2015, Plaintiff requested that the Appeals Council review the ALJ's decision. [Doc. 15-3 at 28]. On March 31, 2016, Plaintiff's counsel submitted additional evidence, consisting of treatment records from The Peak Psychiatric Hospital, for the period from February 22, 2016 to March 18, 2016, to the Appeals Council for its consideration of her claims. [Doc. 15-3 at 9-26; Doc. 15-14 at 8-10]. On June 7, 2016, 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. In its decision, the Appeals Council indicated that, since Plaintiff's additional evidence was “about a later time, ” it would “not affect the decision about whether [Plaintiff was] disabled beginning on or before September 22, 2015” (the date of the ALJ's decision). Id. at 3. This was the final decision of the Commissioner. On July 8, 2016, Plaintiff filed her 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 August 3, 1969, and was 43 years old on November 11, 2012, the alleged date of disability onset. [Doc. 15-12 at 2]. On September 22, 2016, the date of the ALJ's decision, Plaintiff was 47. Thus, Plaintiff was both a “younger person age 18-44” and a “younger person age 45-49”[3] during the time pertinent to the ALJ's decision regarding her disability claims.

         Plaintiff's medical records include: hospital in-patient treatment records from Peak Psychiatric Hospital, for the period from February 22, 2016 through March 18, 2016 (Doc. 15-3 at 9-26); office treatment records from Presbyterian Family Health Care, dated March 20, 2013 (Doc. 15-17 at 13-19); outpatient records from University of New Mexico Behavioral Health, dated August 14, 2013 to September 4, 2013 (Doc. 15-21 at 12-16; Doc. 15-22 at 21-27; Doc. 15-23 at 2-6, 22-30, 34); comprehensive assessment from Open Skies Healthcare, dated February 2, 2015 (Doc. 15-29 at 3-13); and office treatment records from First Choice Community Healthcare, dated May 12, 2014 to May 8, 2015 (Doc. 15-30 at 3-23). 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 November 11, 2012, the alleged onset date.” [Doc. 15-4 at 7]. At step two, the ALJ found that Plaintiff has the following severe impairments: “total right knee replacement; degenerative disc disease of the lumbar and cervical spines; bilateral plantar fasciitis; neuroma and hammertoes with associated bilateral foot pain; obesity; and depression.” Id. at 8. 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. In so finding, the ALJ stated that she 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. at 8-10. With respect to the paragraph B criteria for Listing 12.04, the ALJ found that Plaintiff has mild restriction of her activities of daily living, moderate difficulties with social functioning, moderate difficulties with concentration, persistence or pace, and has had no episodes of “significant decompensation, ” although she had “experienced one to two episodes of decompensation, each of extended duration.” Id. at 9-10. Therefore, the ALJ determined that Plaintiff did not satisfy the paragraph B criteria for that listing. Id. at 10. The ALJ then determined that Plaintiff also did not meet the paragraph C criteria for Listings 12.04 and 12.06. Id. Prior to step four, the ALJ determined that, from November 11, 2012, the alleged onset of her disability, Plaintiff had the RFC to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). Specifically, [Plaintiff] can lift and/or carry ten pounds occasionally and less than ten pounds frequently. [Plaintiff] can stand and/or walk intermittently for up to two hours out of an eight-hour workday with regular breaks. [Plaintiff] can sit for six hours out of an eight-hour workday with regular breaks. [Plaintiff] can push and/or pull ten pounds occasionally and less than ten pounds frequently. [Plaintiff] can occasionally climb stairs and ramps, but never climb ladders, ropes, or scaffolds. She can occasionally balance and stoop, but never kneel, crouch, or crawl. She can occasionally reach overhead. She is limited to work involving simple, routine tasks. She can have only occasional and superficial interactions with the public and co-workers.

Id. at 11. In support of this RFC assessment, the ALJ found that Plaintiff's “medically determinable impairments might be expected to cause some of the alleged symptoms; however, [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.” Id. at 12.

         At step four, the ALJ found that Plaintiff is unable to perform any of her past relevant work, consisting of stage technician (skilled, heavy exertion), contractor (skilled, medium exertion), painter (skilled, light exertion), electronics worker (unskilled, light exertion), and sound operator (skilled, light exertion) based on her current, sedentary, RFC. Id. at 16-17. At step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. Id. at 17. The ALJ relied on the VE's testimony that an individual with Plaintiff's age, education, work experience, and RFC would be able to perform the following representative jobs: document specialist (DOT[4] 249.587-018) and addresser (DOT 209.587-010). Id. at 17-18. Both representative jobs are sedentary, and have SVP ratings of 2.[5] The VE testified that there are approximately 45, 000 document preparer jobs and 800 addresser jobs in the national economy. Id. Therefore, the ALJ concluded that Plaintiff had not been under a disability as defined in the Social Security Act, from November 11, 2012 through the date of the decision. Id.

         V. Analysis

         In her motion, Plaintiff argues that: (1) in determining Plaintiff's RFC, the ALJ (a) “failed to weigh the evidence properly” and (b) used improper factors to determine that Plaintiff was not credible; (2) the ALJ relied on VE testimony regarding job numbers that was inherently unreliable; and (3) the Appeals Council improperly rejected “new, relevant, and material evidence.” [Doc. 20 at 3]. Defendant responds that: (1) the ALJ reasonably found that Plaintiff has the RFC to perform a limited range of sedentary work, based on a reasonable evaluation of the medical evidence and a reasonable evaluation of Plaintiff's credibility (Doc. 22 at 11-21); (2) Plaintiff did not challenge the VE's testimony regarding jobs numbers and, in any event, 45, 000 document preparer jobs is significant (id. at 21-23); and (3) the additional documentation submitted to the Appeals Council is evidence of events that occurred after the ALJ's decision and, “therefore, simply does not pertain to the period adjudicated by the ALJ” (id. at 23). In her reply, Plaintiff asserts that the ALJ failed to ...


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