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Gonzales v. Berryhill

United States District Court, D. New Mexico

August 18, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 20] (“Motion”), filed on September 9, 2016. The Commissioner responded on December 2, 2016. [Doc. 24]. Plaintiff replied on January 16, 2017. [Doc. 28]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 9]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that there is not substantial evidence to support the administrative law judge's (“ALJ”) findings at step five. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (sentence four).

         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) (citing 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). 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.

         “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. The 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 a court may not re-weigh 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 [Commissioner]'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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (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 omitted).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant 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. § 416.905(a).

         In light of this definition for disability, a five-step sequential evaluation process has been established for evaluating a disability claim. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant has the burden to show that: (1) he is not engaged in “substantial gainful activity”; and (2) he 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) his impairment(s) either meet or equal one of the “Listings”[2] of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for supplemental security income on June 14, 2010. Tr. 101. He alleged a disability-onset date of September 27, 2009. Id. His claims were denied initially, on reconsideration, and by an ALJ. Id.; Tr. 107. Plaintiff requested review by the Appeals Council. Tr. 113-15. On July 25, 2013, the Appeals Council remanded his case to the ALJ for further proceedings. Id. ALJ Ann Farris held a second hearing on February 19, 2014, in Albuquerque, New Mexico. Tr. 35, 52-77. Plaintiff appeared in person with his attorney. Tr. 52. The ALJ heard testimony from Plaintiff and from an impartial vocational expert (“VE”), Thomas A. Grenier. Tr. 35, 55-94.

         The ALJ issued her unfavorable decision on May 29, 2014. Tr. 45. At step one, she found that Plaintiff had not engaged in substantial gainful activity since the date of application. Tr. 38. Because Plaintiff had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded to step two. Id. There, she found that Plaintiff suffered from the following severe impairments: “degenerative disc disease of the lumbar spine, type II diabetes mellitus, status post open reduction and internal fixation of his right wrist, obesity, and mild hearing loss in his left ear[.]” Id. She further found that Plaintiff had no medically determinable mental impairment. Id. At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 38-39.

         Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 39-44. The ALJ found that:

[Plaintiff] has the [RFC] to perform light work as defined in 20 [C.F.R. §] 416.967(b) except that he can perform no more than occasional handling with his right (dominant) hand; lift no more than 15 pounds; never kneel, couch, or crawl; should avoid exposure to more than moderate noise levels; and should avoid exposure to uneven terrain.

Tr. 39.

         At step four, the ALJ found that Plaintiff was unable to return to his past relevant work. Tr. 44. At step five, the ALJ found that, based on Plaintiff's RFC, age, education, and work experience and the testimony of the VE, Plaintiff could perform work that exists in significant numbers in the national economy. Tr. 44-45. Ultimately, the ALJ found that Plaintiff had not been under a disability, as defined by the Act, during the relevant time period, and she denied the claim. Tr. 45.

         After the ALJ denied the claim, Plaintiff requested review by the Appeals Council again. See Tr. 1-4. He submitted additional evidence to the Appeals Council that had not been before the ALJ. Tr. 2. All of that evidence post-dated the ALJ's decision. See Id. The Appeals Council found that the “new information [was] about a later time[, and therefore did] not affect the [ALJ's decision].” Tr. 2. Remaining unpersuaded, the Appeals Council denied Plaintiff's request for review on November 19, 2015. Tr. 1-4. Plaintiff timely filed the instant action on January 21, 2016. [Doc. 1].


         Plaintiff fails to show that the Appeals Council erred in declining to consider the reports of Dr. Williams and Ms. Grana. However, on review of the ALJ's decision based on the evidence that was before her, the Court finds that substantial evidence does not support her findings at step five. Therefore, remand is warranted. The Court declines to address the other errors alleged by Plaintiff at this time.

         I. Plaintiff fails to meet his burden to show that the records at issue are chronologically pertinent and material.

         Plaintiff submitted evidence to the Appeals Council that post-dated the ALJ's May 29, 2014 decision. Tr. 2, 7-26. The evidence comprised: (1) a neurobehavioral evaluation by Betty L. Williams, Ph.D., dated July 27, 2015, (2) a Medical Assessment of Ability to do Work-Related Activities (Mental) by Patricia Grana, LSW, dated February 26, 2015, (3) an MRI dated August 25, 2014, and (4) a psychological assessment from Rio Grande Counseling and Guidance dated August 12, 2014. Tr. 7-26. The Appeals Council declined to consider the new evidence. Tr. 2 (“This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before May 29, 2014.”). Plaintiff argues that Dr. Williams' and Ms. Grana's reports should have been considered and included in the record by the Appeals Council. [Doc. 20] at 12-17. He makes no argument about the other evidence. See Id. Because Plaintiff does not allege any error regarding the psychological assessment or the MRI, the Court need not address them further.

         Whether evidence qualifies for consideration by the Appeals Council is a question of law subject to de novo review. Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). Additional evidence should be considered only if it is new, material, and chronologically pertinent. 20 C.F.R. § 416.1470(b). Evidence is new “if it is not duplicative or cumulative, ” and material “if there is a reasonable possibility that it would have changed the outcome.” Threet, 353 F.3d at 1191 (alterations and internal quotation marks omitted). Evidence is chronologically ...

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