Pedroza v. Berryhill

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum [Doc. 23] (“Motion”), filed on February 6, 2017. The Commissioner responded on April 21, 2017. [Doc. 27]. Plaintiff replied on May 19, 2017. [Doc. 28]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 7]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) failed to provide an adequate reason for rejecting the opinion of the consultative examiner in favor of the opinions of the non-examiners. 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^[2] 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). Courts must meticulously review the entire record, but may neither reweigh the evidence nor substitute their judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. 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.” Id. 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

         To qualify for disabled widow's benefits under Title II of the Social Security Act, a claimant must be a widow of a deceased wage earner, have attained the age of 50, be unmarried (or meet one of the exceptions at 20 C.F.R. § 404.335(c)(3)), and be under a “disability” as defined by the Act no later than seven years after the wage earner's death or seven years after she was last entitled to Survivor's Benefits. See 20 C.F.R. § 404.335.

         To show “disability” under the Act, a claimant 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. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) she is not engaged in “substantial gainful activity”; and (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 (3) her impairment(s) either meet or equal one of the “Listings”^[3] 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); Grogan, 399 F.3d at 1261. If she cannot show that her impairment meets or equals a Listing, but she proves that she is unable to perform her “past relevant work, ” the burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for disabled widow's benefits on November 27, 2012. Tr. 26. She alleged a disability-onset date of December 23, 2011. Id. Her claim was denied initially and on reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ Ann Farris held a hearing on September 4, 2014, in Albuquerque, New Mexico. Id., Tr. 41-70. Plaintiff appeared in person and was represented by an attorney. Tr. 26, 41-70. The ALJ heard testimony from Plaintiff, through a Spanish language interpreter, and an impartial vocational expert, Nicole B. King. Tr. 26, 41-70.

         The ALJ issued her unfavorable decision on January 20, 2015. Tr. 35. She found that Plaintiff met the non-disability requirements for disabled widow's benefits and that her prescribed period ended on June 30, 2015. Tr. 28. At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since the onset date of her alleged disability. Id. 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 one severe impairment: fibromyalgia. Id. Further she found that: “[Plaintiff]'s medically determinable mental impairments of depression, conversion disorder; histrionic and narcissistic traits, considered singly and in combination, do not cause more than minimal limitation in [Plaintiff]'s ability to perform basic mental work activities and are therefore non-severe.” Tr. 29 .

         At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 30. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 30-34. The ALJ found that:

[Plaintiff] has the [RFC] to perform light work as defined in 20 [C.F.R. §] 404.1567(b) the claimant can lift up to 20 pounds occasionally; lift or carry up to 10 pounds frequently in light work as defined by the regulations; she can stand or walk for approximately 6 hours per 8 hour workday and sit for approximately 2 hours per 8 hour work day, with normal breaks except she is limited to occasional stooping, kneeling and crouching. She is able to frequently reach, handle (use of the whole hand to seize, hold, grasp, and turn) and finger (use of the fingers to pick, pinch, etc.).

Tr. 30. At step four the ALJ found that Plaintiff was able to return to her past relevant work as a waitress. Tr. 34. Therefore, the ALJ did not proceed to step five. 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. 34-35. Plaintiff submitted new evidence to the Appeals Council and requested review by the Appeals Council. The Appeals Council made the new evidence part of the record but determined that it did “not provide a basis for changing the [ALJ]'s decision.” Tr. 2. The ...