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Gallegos v. Berryhill

United States District Court, D. New Mexico

July 21, 2017

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



         THIS MATTER is before the Court on Plaintiff's “Motion to Reverse and Remand for Rehearing, With Supporting Memorandum” (“Motion”), filed on October 14, 2016. ECF No. 20. The Commissioner responded on December 19, 2016. ECF No. 21. Plaintiff replied on January 3, 2017. ECF No. 23. Having meticulously reviewed the entire record and the parties' pleadings, the Court finds that Plaintiff's Motion should be GRANTED IN PART and DENIED IN PART. The Court further ORDERS that the instant matter be REVERSED and REMANDED for the limited reason set forth herein.

         I. BACKGROUND

         Plaintiff was born on January 7, 1972. Administrative R. (“AR”) 49. She did not graduate high school, but she did receive her general equivalency degree (“GED”). AR 38. From 1997 to 2010, Plaintiff held semi-continuous employment as a cashier at a dairy facility, change clerk at a casino, and as a home health care provider. AR 33-37. Plaintiff last worked as a home health care provider, but quit the position in 2010 because she “ha[d] a hard time concentrating.” AR 33.

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on July 27, 2012. AR 132. Plaintiff claimed disability beginning on March 1, 2012, based on diabetes, blurred vision, foot pain, high cholesterol, incontinence, high blood sugar, memory loss, and concentration loss. AR 49. The Social Security Administration (“SSA”) denied Plaintiff's application initially on January 14, 2013, and upon reconsideration on May 3, 2013. AR 60, 75. At her request, Plaintiff received a de novo hearing before ALJ Barry O'Melinn on March 25, 2014, at which Plaintiff, her attorney, and a vocational expert (“VE”) appeared. AR 28-47. On August 29, 2014, the ALJ issued his decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 11-22. Plaintiff appealed to the SSA Appeals Council, but it declined review on February 26, 2016. AR 1-3. As a consequence, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2016).

         Plaintiff timely filed her appeal with this Court on April 7, 2016. ECF No. 1.


         Plaintiff advances two grounds for relief. First, she argues that the ALJ erred by improperly evaluating her urinary frequency as non-severe at step two and by failing to account for the impairment as part of her residual functional capacity (“RFC”) determination at step four. Pl.'s Mot. 7-10, ECF No. 10. Second, she contends the ALJ should be reversed for failing to resolve a conflict between the testimony of the VE and the Dictionary of Occupational Titles at step four. Id. at 11-12.


         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[1] The Court's review of that final agency decision is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”).

         The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ's 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.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         As for the review of the ALJ's legal decisions, the Court examines “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Ultimately, if substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.

         B. Sequential Evaluation Process

         The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's RFC. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to determine if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).

         If the claimant cannot return to his past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).


         The ALJ issued his decision on August 29, 2014. AR 8. At step one, he found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of March 1, 2012. At step two, the ALJ found Plaintiff's diabetes mellitus, obesity, and depression to be severe impairments. AR 13. In contrast, the ALJ found Plaintiff's urinary frequency to be non-severe. AR 13.

         At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 14-16. The ALJ began with Plaintiff's diabetes mellitus, which the regulations directed the ALJ to assess under applicable listings for other body systems.[2] AR 14.

         Thus, the ALJ considered “evidence of diabetic ketoacidosis, chronic hyperglycemia, and hypoglycemia in determining whether [Plaintiff's] diabetes me[t] or equal[ed] a listing.” AR 14. In conclusion, he found that “the evidence does not establish that [Plaintiff's] diabetes mellitus meets or medically equals the criteria of any Listing.” AR 14.

         Following his examination of Plaintiff's physical impairments, the ALJ considered whether Plaintiff's mental impairment met the criteria of Listing 12.04 (affective disorders). AR 14. He began by evaluating paragraph B of the Listing and Plaintiff's activities of daily living (“ADLs”). AR 15. There, the ALJ found Plaintiff to have only a mild restriction. Among other things, the ALJ observed that Plaintiff “cared for herself, [her] three-year-old son, and her chickens and dog while her husband worked full time as a plumber.” AR 15. Additionally, he noted that Plaintiff “read her son stories, gave him baths, and walked him.” AR 15 (citing AR 173-74).

         Second, the ALJ found Plaintiff had only mild difficulties with social functioning. The ALJ cited approvingly to the Third Party Function Report completed by Plaintiff's husband, wherein he reported that Plaintiff “visited with her mother and sister once a week.” AR 15 (citing AR 167). The ALJ found this to accord with Plaintiff's own statement that she “shopped every day, drove, and participated in a weekly play group with her son.” AR 15 (citing AR 176-77).

         Third, the ALJ found that Plaintiff had moderate difficulties with concentration, persistence, and pace. In support, he cited to Plaintiff's testimony that “she would lose items such as her money card, her husband's money card[, ] and her to do list.” AR 15. He also mentioned Plaintiff's written statements, where she “noted she could pay attention for a few minutes, did not finish what she started, had to read written instructions over and over again, and did not follow oral instructions very well.” AR 15. Plaintiff also documented that “she did not do well under stress and did not handle changes in routine at all.” AR 15 (citing AR 178-79). These reports corresponded with the findings of the non-examining state consultants, who “opined [Plaintiff] had moderate difficulties in concentration, persistence, and pace.” AR 15 (citing AR 56, 72).

         The ALJ concluded his paragraph B discussion by finding that Plaintiff “has experienced no episodes of decompensation, which have been of extended duration.” AR 15.

         Alongside his paragraph B findings, the ALJ also considered whether Plaintiff qualified under the paragraph C criteria. The ALJ answered this inquiry in the negative, finding that “the evidence fails to establish the presence of the ‘paragraph C' criteria.” AR 15. Specifically, he recalled that Plaintiff “lived with her husband and young son, cared for her chickens and dog, and her husband worked full time.” AR 15. “Further, ” he remarked, “the medical evidence showed minimal evidence of mental health treatment.” AR 15.

         Because none of Plaintiff's impairments satisfied an applicable Listing, the ALJ moved on to step four and assessed Plaintiff's RFC. AR 16-21. After “careful consideration of the entire record, ” the ALJ determined that Plaintiff has the residual functional capacity to:

perform light work as defined in 20 [C.F.R. §] 404.1567(b) except [she] can occasionally climb ramps or stairs, can never climb ladders, ropes or scaffolds, can occasionally balance, stoop, kneel, crouch and crawl, and must avoid concentrated exposure to operational control of moving machinery and heights. Further, [Plaintiff] can understand, remember and carry out simple instructions and make commensurate work-related decisions. Finally, [Plaintiff] can respond appropriately to supervision, co-workers, and work situations, deal with changes in work settings, and maintain concentration, persistence or pace for up to and including two hours at a time throughout a workday with normal breaks.

AR 16.

         To develop Plaintiff's RFC, the ALJ relied on four separate grounds. First, the ALJ rendered an adverse credibility finding against Plaintiff, opining that Plaintiff's “statements concerning the intensity, persistence[, ] and limiting effects of these symptoms are not entirely credible.” AR 21. To support his finding, the ALJ contrasted Plaintiff's contention “that she is disabled because of her memory problems” with medical reports showing Plaintiff had “forgot[ten] to take her medicine, ” and generally, was in poor compliance with her medicine regimen. AR 21. The ALJ found it “significant” that Plaintiff “explained she was ‘too busy' to take her medicine[ ].” AR 21 (citing AR 341). The ALJ similarly highlighted the contradiction between Plaintiff's report of “significant memory problems” and her self-reported ability “to care for her young son and her animals[, ] which included ‘a few' chickens and a dog.” AR 21. Moving to Plaintiff's physical impairments, the ALJ found “no objective evidence” of Plaintiff's “increased urinary frequency.” AR 21. “While she did report this problem, ” the ALJ observed that “there was no medical reason or cause for the increased urinary frequency.” AR 21. He concluded that if Plaintiff's “conditions were as limiting as she claimed, she would have had more consistent medical treatment that would have objectively supported the alleged [limitation].” AR 21.

         The ALJ derived additional support from his consideration of the Third Party Function report completed by Plaintiff's husband, Daniel V. Gallegos. AR 20-21 (citing AR 162-70). Mr. Gallegos asserted that Plaintiff could not focus on certain tasks and that her mind was in different places. AR 20. The ALJ discounted this opinion, observing inter alia that Mr. Gallegos “works full time and thus is unable to observe [Plaintiff] when he works, ” and that his report is “inconsistent with the objective evidence of record.” AR 20-21. As a consequence, the ALJ accorded “little weight to the opinion of Mr. Gallegos, ” finding that his “report is unpersuasive and does not credibly support that [Plaintiff] is disabled.” AR 20-21.

         Third, the ALJ relied on the medical evidence of record. To begin, the ALJ accorded “little weight” to the opinions of the non-examining agency consultants who assessed Plaintiff's physical impairments. AR 18-19. These two doctors - Dr. Ronald Crow, D.O. and Dr. Stephen A. Whaley - both opined that Plaintiff's diabetes was a non-severe impairment. AR 18 (citing AR 54-55, 68). The ALJ took exception with these opinions, finding instead that the “hearing level evidence” supports the fact that Plaintiff's diabetes “is a severe impairment as opposed to a non-severe impairment.” AR 19.

         The ALJ also assigned little weight to the opinion of Dr. Raul Young-Rodriguez, M.D., the consultative examiner who assessed Plaintiff's physical limitations in December 2012. AR 19. Following his examination of Plaintiff, Dr. Young-Rodriguez concluded that “there was no clinical evidence to support a limitation of [Plaintiff's] activity.” AR 19. The ALJ discounted this opinion, finding that “Dr. Young-Rodriguez'[s] opinion that there was no evidence to support a limitation of activity is inconsistent with the objective findings.” AR 19. As an example, the ALJ highlighted Dr. Young-Rodriguez's observation that Plaintiff “could stand at one time for 20 minutes and stand for two hours out of an eight-hour period.” AR 19. In the ALJ's opinion, that restriction “by itself supports physical ...

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