Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Flores v. Berryhill

United States District Court, D. New Mexico

June 2, 2017

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


          KIRTAN KHALSA United States Magistrate Judge.

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 14) filed September 7, 2016, in support of Plaintiff Salvador Flores's ("Plaintiff) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, ("Defendant" or "Commissioner") denying Plaintiffs claim for Title II disability insurance benefits and for Title XVI supplemental security income benefits. On December 13, 2016, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum ("Motion"). (Doc. 20.) The Commissioner filed a Response in opposition on February 13, 2017 (Doc. 22), and Plaintiff filed a Reply on February 27, 2017. (Doc. 23.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Salvador Flores (“Mr. Flores”) alleges that he became disabled on December 30, 2010, at the age of forty-six because of herniated cervical disc, right hand surgery, and eczema. (Tr. 169, 171, 214.[3]) Mr. Flores went to school in Mexico through the sixth grade (Tr. 61), and worked as a construction laborer. (248-259.)

         On January 24, 2012, Mr. Flores protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq., and concurrently filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 169-70, 171-80, 210.) Mr. Flores's applications were initially denied on July 25, 2012. (Tr. 69, 70, 71-83, 84-96, 116-19, 120-23.) They were denied again at reconsideration on June 25, 2013. (Tr. 98-113, 114, 115.) On June 25, 2013, Mr. Flores requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 135-36.) The ALJ conducted a hearing on May 29, 2014. (Tr. 40-68.) Mr. Flores appeared in person at the hearing with attorney Michael Armstrong. (Id.) The ALJ took testimony from Mr. Flores (Tr. 48-62), and an impartial vocational expert (“VE”), Sandra Trost. (Tr. 63-67.)

         On September 5, 2014, the ALJ issued an unfavorable decision. (Tr. 23-34.) In arriving at her decision, the ALJ determined that Mr. Flores met the insured status requirements of the Act through December 31, 2017, [4] and that Mr. Flores had not engaged in substantial gainful activity since his alleged disability onset date.[5] (Tr. 25-26.) The ALJ found that Mr. Flores suffered from severe impairments of status post fusion of C5 to C7 vertebrae, depression, borderline intellectual functioning, degenerative joint disease of the right elbow, and degenerative joint disease of the right knee. (Tr. 26.) However, the ALJ found that these impairments, individually or in combination, did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 26-27.)

         Because she found that Mr. Flores's impairments did not meet a Listing, the ALJ then went on to assess Mr. Flores's residual functional capacity (“RFC”). The ALJ stated that

[a]fter careful consideration of the entire record, I find that since December 30, 2010, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he can only occasionally climb, balance, and stoop; he cannot kneel, crouch, or crawl; he can frequently but not constantly handle and reach; and he can make simple work related decisions with few workplace changes.

(Tr. 27.) Based on the RFC and the testimony of the VE, the ALJ concluded that Mr. Flores was not capable of performing his past relevant work, but that considering Mr. Flores's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that he could perform, and he was therefore not disabled. (Tr. 32-34.)

         On February 10, 2016, the Appeals Council issued its decision denying Mr. Flores's request for review and upholding the ALJ's final decision. (Tr. 1-3.) On April 11, 2016, Mr. Flores timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         The Court will not disturb the Commissioner's denial of disability benefits if the final decision[6] is supported by substantial evidence and the Commissioner applied the correct legal standards to evaluate the evidence. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). In conducting its review, the Court meticulously examines 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). In other words, the Court does not reexamine the issues de novo, and the Court “may not displace the agency's choice between two fairly conflicting views, ” even if it would have “made a different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007); see also Sisco v. U.S. Dep't. of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993).

         A decision is based on substantial evidence where it is supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Substantial evidence is “more than a scintilla but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         The Commissioner's decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). The ALJ's decision should discuss the evidence supporting his decision, along with any “uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id.; Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014).

         III. Applicable Law and Sequential Evaluation Process

         A claimant is disabled under the Social Security Act if that individual has a severe medically determinable physical or mental impairment or impairments which can be expected to result in death or have lasted or can be expected to last for a continuous period of twelve months and that render the claimant unable to engage in any substantial gainful work in the national economy. 42 U.S.C. § 423(d)(1)(A) & (2)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10thCir. 1993). In considering an application for disability insurance benefits, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520 and 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears the burden of proof at the first four steps and must show that: (1) he is not engaged in “substantial gainful activity”; and (2) he 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) his impairment(s) meet or equal one of the Listings[7] of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the claimant can show that his impairment meets or equals a listed impairment at step three, the claimant is presumed disabled. However, if at step three the claimant's impairment does not meet or equal a listed impairment, before moving on to step four of the analysis, the ALJ must consider all of the relevant medical and other evidence, including all of the claimant's medically determinable impairments whether “severe” or not, and determine what is the “most [the claimant] can still do” in a work setting despite his physical and mental limitations. 20 C.F.R. §§ 404.1545(a)(1)-(3). This is the claimant's residual functional capacity (“RFC”) which the ALJ uses to determine whether the claimant can perform his past relevant work. 20 C.F.R. §§ 404.1545(a)(1) & (a)(3), 404.1520(a)(4), 404.1520(e), 416.945(a)(1) & (a)(3); 416.920(a)(4), 416.920(e). If the claimant establishes that he cannot perform his past relevant work, the burden of proof then shifts to the Commissioner at step five of the sequential evaluation process, to show that the claimant is able to perform other work in the national economy, considering his RFC, age, education, and work experience. Id.; Grogan, 399 F.3d at 1261.

         Although the claimant bears the burden of proving disability in a Social Security case, because such proceedings are nonadversarial, “[t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.” Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993); Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). “This is true despite the presence of counsel.” Henrie, 13 F.3d at 361. “The duty is one of inquiry and factual development, ” id., “to fully and fairly develop the record as to material issues.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). This may include, for example, an obligation to obtain pertinent medical records or to order a consultative examination. Madrid, 447 F.3d at 791-92. The duty is triggered by “some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation.” Hawkins, 113 F.3d at 1167.

         IV. Analysis

         Mr. Flores asserts four arguments in support of his Motion as follows: (1) the ALJ failed to give legitimate reasons for rejecting the opinion of consultative examining physician John R. Vigil, M.D.; (2) the ALJ offered no explanation for failing to include all of the nonexertional limitations assessed by State agency nonexamining consultants Scott Walker, M.D., and Ralph Robinowitz, Ph.D.; (3) the ALJ failed to include a function-by-function assessment of Mr. Flores's inability to communicate in English; and (4) the ALJ failed to resolve the conflict between the VE's testimony and the Dictionary of Occupation Titles (“DOT”) regarding Mr. Flores's limitation to simple work-related decisions and his ability to do the level two and level three reasoning jobs the VE identified. (Doc. 20 at 15-26.) The Court finds grounds for remand as discussed below.

         A. The ALJ Improperly Rejected Some But Not All of the Nonexamining State Agency Consultants' More Restrictive Section I Findings Without Explanation

         Mr. Flores argues that the ALJ erred by failing to include certain of the nonexamining State agency consultants' Section I moderate limitations, and that had she done so, she would have assessed a more restrictive mental RFC. (Doc. 20 at 18-21.) Specifically, Mr. Flores argues that the ALJ failed to incorporate moderate limitations based on his pain, borderline intellectual functioning, and limited English skills, all of which impact his ability to sustain concentration and persistence. (Id.) The Commissioner contends that the consultants' Section III narrative assessments demonstrate that they considered their Section I moderate limitation findings, and that the ALJ reasonably relied on the consultants' Section III narrative assessments in determining Mr. Flores's RFC. (Doc. 23 at 11-12.)

         On July 25, 2012, nonexamining State agency medical consultant Scott Walker, M.D., reviewed Mr. Flores's medical records and prepared a Psychiatric Review Technique[8] and a Mental Residual Functional Capacity Assessment (“MRFCA”). (Tr. 75-76, 80-81, 88-89, 93-94.) In Section I of the MRFCA, Dr. Walker found that Mr. Flores had no social interaction limitations. (Tr. 81, 94.) Dr. Walker found that Mr. Flores was not significantly limited in his ability to (1) remember locations and work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; and (4) work in coordination with or in proximity to others without being distracted by them. (Tr. 80, 93-94.) Based on Mr. Flores's pain, borderline intellectual functioning, and/or limited English skills, Dr. Walker found that Mr. Flores had moderate limitations in his ability to (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (5) sustain an ordinary routine without special supervision; (6) make simple work-related decisions; (7) complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; (8) respond appropriately to changes in the work setting; (9) be aware of normal hazards and take appropriate precautions; (10) travel in unfamiliar places or use public transportation; and (11) set realistic goals or make plans independently of others. (Tr. 80-81, 93-94.) In Section III of the MRFCA, Dr. Walker assessed that

[t]he allegations are credible. But [claimant] may have some limitations related to pain and Borderline intellectual functioning as well as limited English skills.
The claimant can understand, remember and carry out simple instructions, make simple decisions, attend and concentrate for two hours at a time, interact adequately with co-workers and supervisors, and respond ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.