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Abreu v. Berryhill

United States District Court, D. New Mexico

August 3, 2017

TIMOTHY B. ABREU, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          CARMEN E. GARZA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Timothy B. Abreu's Plaintiff's Brief in Support of Motion to Remand and Reverse (the “Motion”), (Doc. 13), filed April 13, 2017; Defendant Commissioner Nancy A. Berryhill's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the “Response”), (Doc. 18), filed May 30, 2017; and Mr. Abreu's Reply to Defendant's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the “Reply”), (Doc. 20), filed July 1, 2017. United States District Judge Judith C. Herrera referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 19).

         Mr. Abreu filed applications for disability insurance benefits and supplemental security income on August 31, 2012, alleging disability beginning August 27, 2011. (Administrative Record “AR” 11). Mr. Abreu claimed he was limited in his ability to work due to cervical pain and constant neck pain with reduced range of motion. (AR 176). Mr. Abreu's applications were denied initially on November 28, 2012, and upon reconsideration on April 18, 2013. (AR 11). Mr. Abreu requested a hearing before an Administrative Law Judge (“ALJ”), which was held on July 18, 2014, before ALJ John R. Morris. (AR 23). Mr. Abreu and Cornelius J. Ford, an impartial vocational expert (“VE”), testified at the hearing, and Aida M. Adams, an attorney, represented Mr. Abreu at the hearing. (AR 23-45).

         On September 16, 2014, ALJ Morris issued his decision, finding Mr. Abreu not disabled at any time between his alleged disability onset date through the date of the decision. (AR 18). Mr. Abreu requested review by the Appeals Council, (AR 7), which was denied, (AR 1-3), making the ALJ's decision the Commissioner's final decision for purposes of this appeal.

         Mr. Abreu now argues that the ALJ erred by: (1) failing to properly follow Social Security Rulings (“SSR”) 96-8p and 96-7p in determining Mr. Abreu's residual functional capacity (“RFC”); and (2) failing to properly assess Mr. Abreu's credibility under SSR 96-7p. (Doc. 13 at 2-8). The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because the Court finds that the ALJ failed to address Mr. Abreu's limitations in his range of motion and ability to reach, and failed to properly weigh the medical opinions of Dr. Crawford, Dr. Whaley, and Dr. Davis, the Court recommends that Mr. Abreu's motion should be GRANTED.

         I. Standard of Review

         The 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); Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). 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); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's “failure to apply the correct legal standards, or show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record 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 ALJ]'s findings from being supported by substantial evidence.” 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)).

         II. Applicable Law and Sequential Evaluation Process

         For purposes of disability insurance benefits and supplemental security income, a claimant establishes a disability when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920 (2012).

         At the first four steps of the SEP, the claimant bears the burden of showing: (1) she is not engaged in “substantial gainful activity”; (2) she 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 either (3) her impairment(s) either meet or equal one of the “Listings”[1] of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation process. At step five the Commissioner must show the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.

         III. Background

         Mr. Abreu applied for disability insurance benefits and supplemental security income due to cervical pain and constant neck pain with reduced range of motion. (AR 176). At step one, the ALJ determined that Mr. Abreu had not engaged in substantial gainful activity since August 27, 2011, the alleged onset date. (AR 13). At step two, the ALJ concluded that Mr. Abreu has the following severe impairments: cervical spondylosis and cervical post-laminectomy syndrome. (AR 13). At step three, the ALJ determined that none of Mr. Abreu's impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 14).

         At step four, the ALJ found that Mr. Abreu has the RFC to perform a full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). (AR 14). In formulating Mr. Abreu's RFC, the ALJ stated that he considered Mr. Abreu's symptoms and the extent to which these symptoms can reasonably be accepted as consistent with objective medical and other evidence, as required by 20 C.F.R. §§ 404.1529 and 416.929, and SSRs 96-4p and 96-7p. (AR 14). The ALJ stated that he also ...


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