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Ellis v. Berryhill

United States District Court, D. New Mexico

July 19, 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 Jerold Thomas Ellis's Motion to Reverse and Remand (Doc. 22), which was fully briefed on October 2, 2016. Docs. 25, 26, 27. The parties consented to my entering final judgment in this case. Doc. 12. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) failed to apply the correct legal standards in weighing the opinions of Diane Fligstein, Ph.D. and Cassandra Clark, Ph.D. The Court therefore GRANTS Mr. Ellis's motion and remands this case to the Commissioner for further 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), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; 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), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. 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 of proof 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

         Mr. Ellis, 52, left school after the eleventh grade to join the United States Marine Corps, but was discharged after 2.5 years for behavioral problems. AR 233, 316. He earned his GED in 1983. AR 47, 262. He worked for many years installing heating and air conditioning units. AR 45, 302, 316. Mr. Ellis filed applications for disability insurance benefits and supplemental security income on March 13, 2012-alleging disability since March 28, 2007 due to major depressive disorder, anxiety disorder, and panic disorder with agoraphobia. AR 233-40, 261. The Social Security Administration (“SSA”) denied his claims initially on April 30, 2012. AR 132-55. The SSA denied his claims on reconsideration on July 24, 2012. AR 191-96. Mr. Ellis requested a hearing before an ALJ. AR 199-200. On July 17, 2013, ALJ Barry O'Melinn held a hearing. AR 38-75. ALJ O'Melinn issued his unfavorable decision on February 14, 2014. AR18-37.

         At step one, the ALJ found that Mr. Ellis had not engaged in substantial, gainful activity since March 28, 2007. AR 23.[4] Because Mr. Ellis had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. AR 23-24. At step two, the ALJ found that Mr. Ellis suffered from the following severe impairments: major depressive disorder, anxiety disorder, panic disorder with agoraphobia, and left shoulder disorder. Id. At step three, the ALJ found that none of Mr. Ellis's impairments, alone or in combination, met or medically equaled a Listing. AR 24-26. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Ellis's RFC. AR 26-30. The ALJ found that:

[C]laimant has the residual functional capacity to perform a wide range of unskilled light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift and/or carry up to 20 pounds on an occasional basis and 10 pounds on a frequent basis; can sit, stand and/or walk for up to six hours in an eight-hour workday, with normal breaks. He can occasionally climb ramps or stairs; but can never climb ladders, ropes, or scaffolds; and can reach, including overhead on an occasional basis. The claimant can understand, remember, and carryout [sic] simple instructions and make commensurate work related decisions; respond appropriately to supervision, coworkers, and work situations; deal with routine changes in a work setting; maintain concentration persistence and pace for up to and including two hours at a time, with normal breaks throughout the workday. He is limited to work that involves working primarily with things and not people.

AR 26.

         At step four, the ALJ concluded that Mr. Ellis was unable to perform any of his past relevant work as a heating, ventilation, and air conditioning installer. AR 30. The ALJ found that Mr. Ellis was not disabled at step five, concluding that he still could perform jobs that exist in significant numbers in the national economy-including an assembler, box labeler, and electronic assembler. AR 31-32.

         Mr. Ellis requested review by the Appeals Council, which, on August 11, 2015, denied the request. AR 1-5. Mr. Ellis timely filed his appeal to this Court on October 13, 2015. Doc. 1.

         IV. Mr. Ellis's Claims

         Mr. Ellis raises two arguments for reversing and remanding this case: (1) the ALJ failed to adequately discuss the findings of non-examining state agency psychological consultant Dr. Diane Fligstein, and failed to adopt or reject several moderate mental limitations noted in her opinion; and (2) the ALJ improperly picked and chose from the mental limitations found by the examining psychological evaluator Dr. Cassandra Clark. For the ...

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