United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
Fashing United States Magistrate Judge
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
Standard of Review
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). 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.
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)).
Applicable Law and Sequential Evaluation Process
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. §§
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 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.
Background and Procedural History
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.
one, the ALJ found that Mr. Ellis had not engaged in
substantial, gainful activity since March 28, 2007. AR
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.
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.
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.
Mr. Ellis's Claims
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 ...