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Farden v. Berryhill

United States District Court, D. New Mexico

June 27, 2017

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


          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Diane Marie Farden's Motion to Reverse or Remand Administrative Agency Decision, filed May 16, 2016, and fully briefed on August 28, 2016. Docs. 23, 26, 27. The parties have consented to my entering a final judgment in this case. Docs. 12, 29, 30. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to apply the correct legal standards when assessing Ms. Farden's credibility. I therefore GRANT Ms. Farden's motion and remand this case to the Commissioner for proceedings consistent with this opinion.

         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

         Ms. Farden was born on July 21, 1978. AR[4] 32, 223. She has a seventh grade education and a history of working as a baby sitter, adult caregiver, cashier, waitress, and as the owner of a landscape business. AR 32, 241, 261, 880, 902-03. At the time of the hearing before ALJ Hertzig (the ALJ whose decision is at issue in this case), Ms. Farden was married and living with her husband and youngest daughter in Clovis, New Mexico. AR 879-80.

         Ms. Farden initially applied for Supplemental Security Income benefits on March 17, 2008, alleging disability since March 13, 2007. AR 223-29. Ms. Farden alleged she was disabled due to arthritis in her spine, headaches, depression, insomnia, bulging discs in her back, pain in both her legs, shooting pain from the bottom of her spine to the top of her head, degenerative disc disease, and a ventral hernia. AR 240.

         At the time of her March 2008 application, Ms. Farden lived in Dallas, Texas. AR 224. While her application was pending, Ms. Farden moved to Clovis, New Mexico, and from Clovis, she moved to California. AR 77-79. In June of 2014, Ms. Farden moved back to Clovis, New Mexico. AR 1174.

         Ms. Farden's March 2008 application for benefits was denied initially and upon reconsideration, and Ms. Farden requested a hearing before an ALJ. AR 98-99, 109-11. On February 17, 2010, ALJ Lowell Fortune conducted a hearing, but because he did not have all of the relevant medical evidence, he continued the hearing. AR 53-88. ALJ Fortune held a supplemental hearing on June 4, 2010. AR 29-52. ALJ Fortune issued his unfavorable decision on July 21, 2010. AR 9-28. The Appeals Council denied Ms. Farden's request for review, and on March 29, 2012, Ms. Farden appealed the Commissioner's decision to the United States District Court for the Central District of California. AR 1007-11, 1013-15. The district court in California reversed and remanded the Commissioner's decision for further proceedings on March 25, 2013. AR 1020-43.

         While ALJ Fortune's decision was under review in California, Ms. Farden filed a second application for supplemental security income on October 7, 2011, continuing to allege disability as of March 13, 2007. AR 921. Her second application was denied initially and upon reconsideration, and ALJ Jennifer Simmons held a hearing on May 21, 2012. Id. ALJ Simmons issued an unfavorable decision on July 17, 2012. AR 918-932, 1081-92. The Appeals Council consolidated Ms. Farden's appeal of ALJ Simmons' decision with ALJ Fortune's remanded decision and issued an order remanding the consolidated case to an administrative law judge. AR 913-17, 1048-52.

         ALJ Michael Hertzig held a hearing on March 20, 2015. AR 872-912. ALJ Hertzig issued his unfavorable decision on May 15, 2015. AR 833-69. ALJ Hertzig's decision is the one at issue in this appeal. See Doc. 2. At step one, ALJ Hertzig found that Ms. Farden had not engaged in substantial, gainful activity since her alleged onset date of March 17, 2008. AR 839. Because Ms. Farden had not engaged in substantial gainful activity for at least 12 months, ALJ Hertzig proceeded to step two. At step two, ALJ Hertzig found that Ms. Farden suffered from the severe impairments of “morbid obesity, lumbar spine arthritis, and mixed connective tissue disease.”[5] Id. ALJ Hertzig found that Ms. Farden had several nonsevere impairments: knee pain, restless leg syndrome, Sjögren's syndrome, systemic lupus erythematosus, rheumatoid arthritis, chronic obstructive pulmonary disease, hiatal hernia, gastric reflux, depression, anxiety, pelvic pain, hypothyroid disease, hiatal hernia, gastroesophageal reflux disease, diverticulosis, and chronic obstructive pulmonary disease and/or asthma. AR 840-50. At step three, ALJ Hertzig found that none of Ms. Farden's impairments-alone or in combination-met or medically equaled a Listing. AR 850-52.

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

[C]laimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except can stand 30 minutes at one time, and then must alternate position in place for a few minutes; can sit 60 minutes at one time, and then can change position for a few minutes in place; never climbing ladders, ropes, or scaffolds; occasional climbing ramps and stairs; occasional balancing, stooping, kneeling, crouching, or crawling; avoid all exposure to unprotected heights; can frequently be exposed to temperature extremes; can occasionally be exposed to vibration and uneven surfaces.

AR 852. ALJ Hertzig determined that Ms. Farden was capable of performing her past relevant work as an accounts receivable/payable clerk and payroll clerk and, therefore, was not disabled. AR 861-62.[6]

         Ms. Farden requested-and the Appeals Council granted-an extension of time for filing exceptions to ALJ Hertzig's decision until August 13, 2015. AR 827-28, 832. Ms. Farden did not file exceptions, and the Appeals Council did not review the decision on its own, making ALJ Hertzig's decision the final decision of the Commissioner and prompting this ...

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