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Silva v. Berryhill

United States District Court, D. New Mexico

September 9, 2017

PRECIOUS SILVA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 19), filed April 5, 2017. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc. 8. Having reviewed the parties' submissions, the relevant law, and the relevant portions of the Administrative Record, the Court will grant the Motion.

         I. Introduction

         Plaintiff asserts that she became disabled and unable to sustain any substantial gainful activity at the age of 26 due to various impairments. The Administrative Law Judge (“ALJ”) assigned to review her case reached the opposite conclusion. Plaintiff now appeals to this Court, asserting that the ALJ improperly discounted the opinion of her treating nurse practitioner and relied on unsound information provided by the vocational expert (“VE”), who testified that Plaintiff can still work. The Court agrees that the ALJ's reasons for discounting the opinions of Plaintiff's treating nurse practitioner do not withstand scrutiny, and therefore will remand on this basis.

         II. Procedural History

         On September 24, 2012, Plaintiff protectively filed applications with the Social Security Administration for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. AR at 79-80, 187-88.[1] Plaintiff alleged a disability onset date of May 12, 2012, the day she stopped working, due to diabetes, migraines, Cushing's syndrome, degenerative disk disease, polycystic ovary syndrome (“PCOS”) and recurring abscesses. AR at 208, 219. Plaintiff had most recently worked as a caregiver for the disabled. AR at 55. She testified that she can no longer do this kind of work because it was too hard on her back, she “was calling in constantly due to the pain” and because she was “getting a lot of abscesses that [she] had to get removed surgically.” AR at 56. Plaintiff has neither looked for work nor engaged the services of the state Division of Vocational Rehabilitation since she stopped working in this capacity. AR at 56.

         The agency denied Plaintiff's claims initially and upon reconsideration, and she requested a de novo hearing before an administrative law judge. AR at 79-124, 140. ALJ Barry O'Melinn held an evidentiary hearing on August 6, 2014, at which Plaintiff and Vocational Expert (“VE”) Diane Weber testified. AR at 50-78. Plaintiff was represented by Ruth Cohen, of the office of Bill Gordon & Associates, at the hearing. AR at 51. Ms. Cohen stipulated to Ms. Weber's credentials. AR at 72.

         The ALJ issued an unfavorable decision on February 2, 2015. AR at 30-43. Ms. Cohen subsequently withdrew from Plaintiff's case, AR at 29, and Plaintiff's current counsel, Michael Armstrong, entered his appearance on March 9, 2015. AR at 26-28.

         Plaintiff submitted a Request for Review of the ALJ's Decision to the Appeals Council, which the Council denied on June 24, 2016. AR at 28, 1-4. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         A claimant seeking disability benefits must establish that 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. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).[2]

         At Step One of the sequential evaluation process, ALJ O'Melinn found that Plaintiff has not engaged in substantial gainful activity since her alleged onset date. AR at 35. At Step Two, he determined that Plaintiff has the severe impairments of “diabetes mellitus; hypertension; obesity; back disorder; hypothyroid; headaches; polyarthralgias; depression; and fibromyalgia.” AR at 35. At Step Three, the ALJ concluded that Plaintiff's impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 36-37.

         When a claimant does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC “is the most you can still do despite your limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined that Plaintiff retains the RFC to

perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) and SSR 83-10 specifically as follows: the claimant can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; she can stand and/or walk for six hours out of an eight-hour workday with regular breaks; she can sit for six hours out of an eight-hour workday with regular breaks and she is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying. Claimant must never climb ladders, ropes or scaffolds. She is limited to occasional climbing of ramps, stairs, balancing, stooping, kneeling, crouching and crawling. She must avoid concentrated exposure to extreme cold, heat, exposure to operation control of moving machinery, unprotected heights and hazardous machinery. The claimant can understand, carry out, and remember simple instructions and make commensurate work related decisions, respond appropriately to supervision, coworkers and works situations, deal with routine changes in work setting, maintain concentration persistence and pace of up to and including 2 hours at a time with normal breaks throughout the workday.

AR at 37-38.

         Employing this RFC at Steps Four and Five, and relying on the unchallenged testimony of the VE, the ALJ determined that Plaintiff is unable to perform her past relevant work as a home attendant, cashier, or salesperson. AR at 41. However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform despite her limitations. AR at 41-42. Specifically, the ALJ determined that Plaintiff retains the residual functional capacity to work as an addresser, final ...


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