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Mark v. Berryhill

United States District Court, D. New Mexico

June 30, 2017

CHESTER MARK, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff's Motion to Reverse and Remand (Doc. 16), filed November 28, 2016. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc. 19. Having reviewed the parties' submissions, the applicable law, and the relevant portions of the Administrative Record, the Court will grant the Motion.

         I. Procedural History

         In March 2013, Plaintiff protectively filed applications with the Social Security Administration for disability insurance benefits (DIB) and supplemental security income (SSI). AR at 171-86.[2] At the time of his applications, Plaintiff alleged a disability onset date of January 31, 2010, due to “lower back injury, diabetes, nerve damage, HBP.” AR at 214.

         The agency denied Plaintiff's claims initially and upon reconsideration. AR at 113, 119. Plaintiff requested review and, after holding a de novo hearing, Administrative Law Judge Michael S. Hertzig (“the ALJ”) issued a partially favorable decision, finding that Plaintiff did not meet the statutory requirements for disability prior to August 1, 2013, but that he became disabled on that date and continued to be disabled through the date of his decision. AR at 9-23. The Appeals Council denied Plaintiff's request for review of the ALJ's decision on February 24, 2016. AR at 1. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         A claimant seeking disability benefits must establish that he 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. § 404.1505(a). The Commissioner must use a sequential five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).[3]

         Here, the ALJ found at Step One of the process that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. AR at 15. At Step Two, he determined that Plaintiff suffered from the severe impairments of “diabetes mellitus, disorders of the back and diabetic neuropathy, ” AR at 15, and at Step Three, he concluded that these impairments, individually and in combination, did not meet or medically equal the regulatory “listings.” AR at 16.

         When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a multidimensional description of the work-related abilities a plaintiff retains in spite of his medical impairments. 20 C.F.R. § 404.1545(a)(1). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8P, 1996 WL 374184, at *1 (emphasis in original).

         In his first RFC determination, the ALJ found that prior to August 1, 2013, Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) with the following restrictions:

The claimant could only occasionally climb ramps, stairs and never climb ropes, ladders or scaffolds. He could frequently stoop, crouch and crawl and unlimitedly balance and kneel. He had to avoid concentrated exposure to extremes of cold, wetness, vibrations and hazards such as machinery, heights, etc.

AR at 16. The ALJ also made a second RFC determination - that beginning on August 1, 2013, Plaintiff had the RFC to perform sedentary work with the same restrictions enumerated in the first RFC but with the additional restriction that he could “only stand and walk for less than two hours out of eight.” AR at 19. In other words, on August 1, 2013, Plaintiff's RFC, as determined by the ALJ, shifted from light work to sedentary work with a new two-hour standing/walking restriction.

         Employing his first RFC, which accounted for Plaintiff's limitations prior to August I, 2013, the ALJ determined at Step Four that Plaintiff was able to perform his past relevant work as a cashier, cook, and assistant manager, and, accordingly, that he was not disabled. AR at 21. In contrast, when employing his second RFC, which accounted for Plaintiff's additional limitations beginning on August 1, 2013, the ALJ concluded that Plaintiff was unable to perform his past relevant work. AR at 21. Moving on to Step Five, the ALJ determined that there were no jobs existing in significant numbers in the national economy that Plaintiff could perform based on the second RFC. AR at 22. As such, the ALJ determined that Plaintiff was disabled as of August 1, 2013. AR at 22.

         II. Legal Standard

         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). However, in making this determination, this Court “cannot reweigh the evidence or substitute [its] judgment for the administrative law judge's.” Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016) (citation omitted).

         III. ...


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