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Trevizo v. Berryhill

United States District Court, D. New Mexico

May 24, 2017

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



         THIS MATTER is before the Court on Plaintiff Mary Helen Trevizo's Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum (the “Motion”), (Doc. 22), filed January 30, 2017; Defendant Commissioner Nancy A. Berryhill's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the “Response”), (Doc. 26), filed April 14, 2017; and Plaintiff's Reply to Brief in Response to Motion to Reverse and Remand (the “Reply”), (Doc. 27), filed April 28, 2017.

         On January 14, 2013, Ms. Trevizo filed for supplemental security income, alleging hand and arm numbness, neck pain, leg problems, inability to read and write, and memory loss limited her ability to work. (Administrative Record “AR” 82). The Social Security Administration denied Ms. Trevizo's claim initially on April 15, 2013, and again upon reconsideration on September 24, 2013. (AR 10). Ms. Trevizo requested a hearing before an Administrative Law Judge (“ALJ”) on November 4, 2013. (AR 10). The hearing was held on December 19, 2014, before ALJ John Rolph. (AR 10, 26). Michelle Baca, an attorney, represented Ms. Trevizo at the hearing, and Pamela A. Bowman, an impartial vocational expert (“VE”) testified at the hearing. (AR 10).

         On March 6, 2015, ALJ Rolph issued his decision finding Ms. Trevizo not disabled as defined by the Social Security Act. (AR 26). Ms. Trevizo requested the Appeals Council review the decision on April 7, 2015, but the Appeals Council denied the request, (AR 1-6), making the ALJ's decision the Commissioner's final decision for purposes of this appeal.

         Ms. Trevizo has appealed the ALJ's decision, arguing the ALJ committed reversible error by: failing to find Ms. Trevizo met Listing 12.05(C); inadequately formulating a complete mental or physical residual functional capacity (“RFC”) or explaining his reasons for rejecting certain findings; and relying on VE testimony that was inconsistent with the Dictionary of Occupation Titles. Because the ALJ erred in his analysis of whether Ms. Trevizo met Listing 12.05(C), the Court finds that the Motion is well-taken and should be GRANTED IN PART.

         I. 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); Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). 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); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's “failure to apply the correct legal standards, or show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. 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; Hamlin, 365 F.3d at 1214. While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record 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 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)).

         II. Applicable Law and Sequential Evaluation Process

         For purposes of supplemental security income, a claimant establishes a disability when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. § 404.1505(a). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520.

         At the first four steps of the SEP, the claimant bears the burden of showing: (1) she is not engaged in “substantial gainful activity”; (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 either (3) her impairment(s) either meet or equal one of the “Listings”[1] 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); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation process. At step five the Commissioner must show the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.

         III. Background

         Ms. Trevizo applied for supplemental security income claiming hand and arm numbness, neck pain, leg problems, inability to read and write, and memory loss limited her ability to work beginning January 1, 2012. (AR 10, 82). At step one, the ALJ found Ms. Trevizo had not engaged in substantial gainful activity since her alleged onset date. (AR 12). At step two, the ALJ determined Ms. Trevizo suffered the following severe impairments: bilateral upper extremity problems, including carpal tunnel syndrome, paresthesia, numbness, radicular pain, status post bilateral carpal tunnel releases, and left trigger thumb release; obesity; degenerative disc disease; cervical spine stenosis with pain/cervicalgia; bilateral shoulder degenerative joint disease/osteoarthritis; back pain; “leg pain/problems/right knee osteoarthritis/pain;” chronic obstructive pulmonary disease; and borderline intellectual functioning (“BIF”). (AR 12). The ALJ questioned whether Ms. Trevizo's impairments affect her “more than minimally, ” but stated he gave Ms. Trevizo “the benefit of the doubt.” (AR 12-13).

         At step three, the ALJ held that Ms. Trevizo's impairments do not, either solely or in combination, meet or medically equal any Listing impairment. (AR 13). The ALJ considered several Listing impairments, including joint dysfunctions, spinal disorders, and intellectual disabilities. (AR 13-17). Significantly, the ALJ found the requirements for Listing 12.05 paragraph C were not met. (AR 17). Listing 12.05(C) requires, in part, a “valid verbal, performance, or full scale IQ of 60 through 70.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05(C) (2016).[2] Even though Ms. Trevizo was diagnosed with verbal and full scale IQ scores between 60 and 70, (AR 266), the ALJ thought the record “clearly supports a ...

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