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Kelley v. Berryhill

United States District Court, D. New Mexico

September 27, 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 a Rehearing With Supporting Memorandum” (“Motion”), filed on January 12, 2017. ECF No. 15. The Commissioner responded on April 3, 2017. ECF No. 19. Plaintiff replied on April 24, 2017. ECF No. 20. Having meticulously reviewed the briefing and the entire record, the Court finds that Plaintiff's Motion is well taken and that the Administrative Law Judge's (“ALJ's”) ruling should be REVERSED and REMANDED. Therefore, and for the further reasons articulated below, the Court will GRANT Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff was born on September 30, 1969, in San Leandro, California. Administrative R. (“AR”) 495. She received high marks in high school, but dropped out her senior year. AR 495. Plaintiff later earned her general equivalency diploma (“GED”) and went on to serve six years in the Air National Guard. AR 495. Plaintiff also accrued a significant body of past relevant work, including positions as a technical writer, editor of technical publications, systems analyst, environmental compliance manager, training specialist, and residential aide. AR 32.

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on June 26, 2014. AR 76. Plaintiff claimed disability beginning on May 6, 2013, based on bipolar disorder, major depression, severe anxiety, post-traumatic stress disorder (“PTSD”), subluxation of the neck and brain, chronic pain, insomnia, chronic fatigue, cholesterol, and allergies. AR 78, 207. Plaintiff had previously filed a DIB claim in 2013 that was denied. AR 78. The Social Security Administration (“SSA”) denied Plaintiff's 2014 application initially on January 2, 2015 [AR 95], and upon reconsideration on April 15, 2015. AR 113. At her request, Plaintiff received a de novo hearing before ALJ Lillian Richter on December 9, 2015, at which Plaintiff, her attorney, and a vocational expert (“VE”) appeared. AR 41-75. On January 13, 2016, the ALJ issued her decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 21-33. Plaintiff appealed to the SSA Appeals Council, but it declined review on April 18, 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) (2017).

         Plaintiff timely filed her appeal with this Court on June 21, 2016. ECF No. 1.


         Plaintiff advances four grounds for relief. First, she argues that the ALJ committed legal error in her analysis of the opinion of Plaintiff's treating psychologist, Dr. Louis Wynne, Ph.D. Pl.'s Mot. 13-16, ECF No. 15. Next, she contends that remand is warranted under Sentence Six of 42 U.S.C. § 405(g) (2012) for consideration of new and material evidence. Id. at 16-19. Lastly, Plaintiff's third and fourth claims allege that the ALJ failed to resolve conflicts between the Dictionary of Occupational Titles (“DOT”) and the VE's testimony regarding sit/stand options and reaching limitations. Id. at 19-24.


         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.”).

         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 residual functional capacity (“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 her past relevant work to determine if the claimant is still capable of performing her 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 her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). [Plaintiff] 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 her 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 her decision on January 13, 2016. AR 18. At step one, she found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of May 6, 2013. AR 23. At step two, the ALJ found Plaintiff to suffer from numerous severe impairments, including: (1) dysthymic disorder; (2) alcohol use disorder, in remission; (3) degenerative changes in the cervical spine; (4) bipolar disorder; (5) cervical spondylosis with disc osteophyte complexes at ¶ 5-C6 and C6-C7; (6) cervical facet syndrome; (7) enthesopathy of right hip region; (8) degenerative joint disease of the thoracic spine; (9) degenerative joint disease of the lumbar spine L4-L5 and L5-Sl; (10) osteoarthritis of the hips and sacroiliac (“SI”) joint; and (11) PTSD. AR 23.

         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 24-26. This finding included an analysis of Plaintiff's mental impairments, which the ALJ found did not meet or medically equal the criteria of Listing Sections 12.04 (affective disorders) or 12.06 (anxiety-related disorders). AR 24-26.

         The ALJ found that the paragraph B criteria of Listings 12.04 and 12.06[2] were not met “[b]ecause the claimant's mental impairments do not cause at least two ‘marked' limitations or one ‘marked' limitation and ‘repeated' episodes of decompensation, each of extended duration.” AR 25. She then explained her reasoning regarding paragraph B's four subparts, beginning with activities of daily living. There, the ALJ found Plaintiff to have a moderate restriction. The ALJ first looked to Plaintiff's own function statement, noting that despite her mental impairments, “she lives alone and is able to maintain her own household” and that “she has two small dogs she cares for; she watches television; she can prepare a simple meal; she can go to the gym; she is very organized and likes to have things in order; she does her laundry; and performs all her own household chores.” AR 24. In addition, the ALJ cited Plaintiff's testimony that she “goes to the gym five times a week and works out about an hour each time.” AR 34. Taken together, Plaintiff's reports led the ALJ to opine that Plaintiff “[c]learly” has “no more than a moderate degree of limitation on her activities of daily living.” AR 24.

         As to social functioning, the ALJ found Plaintiff to suffer moderate difficulties. The ALJ noted that the evidence showed Plaintiff could “interact appropriately and effectively with other individuals on a sustained basis, ” but that Plaintiff was nonetheless “a recovering alcoholic.” AR 25. Similarly, the ALJ detailed the various methods by which Plaintiff assists others through Alcoholics Anonymous, but also considered Plaintiff's continuing difficulty with securing employment and with venturing out in public, even when she had traveled to another state to visit a friend. AR 25.

         Next, the ALJ turned to Plaintiff's ability to maintain concentration, persistence, and pace, and again found Plaintiff to have moderate difficulties. The ALJ observed that “[t]he evidence shows [Plaintiff] has some problems with detailed or complex tasks, ” but nonetheless “is able to sustain concentration and attention long enough to perform simple, routine tasks in a timely and efficient manner.” AR 25. She likewise recounted that while Plaintiff “reportedly has problems with her memory, ” she is still “able to manage her appointments, medications, and other social events without any help.” AR 25.

         The ALJ concluded her paragraph B discussion by finding that Plaintiff “has experienced no episodes of decompensation, which have been of extended duration.” AR 18. This same finding also supported the ALJ's conclusion that Plaintiff had failed to establish the ‘paragraph C' criteria.”[3] AR 26. To that point, the ALJ further explained that Plaintiff “does not have a residual disease process with very marginal adjustment and she is able to function outside a highly supportive living arrangement.” AR 26.

         Because none of Plaintiff's impairments satisfied an applicable Listing, the ALJ moved on to step four and assessed Plaintiff's RFC. AR 26-32. “After careful consideration of the entire record, ” the ALJ determined that Plaintiff has the residual functional capacity to perform a range of light work, as defined in 20 C.F.R. § 404.1567(b), with the following limitations:

Plaintiff can lift and/or carry twenty pounds occasionally and ten pounds frequently. [Plaintiff] can stand and/or walk for six hours out of an eight-hour workday with normal breaks. [Plaintiff] can sit for six hours out of an eight-hour workday with normal breaks. [Plaintiff] can push and/or pull twenty pounds occasionally and ten pounds frequently. [Plaintiff] should alternate between sitting and standing once every hour for ten minutes. [Plaintiff] can occasionally reach overhead. [Plaintiff] can frequently climb ramps and stairs, but never climb ladders, ropes, or scaffolds. [Plaintiff] can frequently balance. She can occasionally stoop, kneel, crouch, and crawl. She is limited to hearing and understanding simple oral instructions. She is limited to simple routine tasks. She could not perform at an assembly-line production pace but could meet end of day goals. [Plaintiff] can have occasional contact with supervisors and co-workers. She can have incidental contact with the public. She is limited to making simple work related decisions in a workplace with few changes in the routine work setting. [Plaintiff] should not be exposed to unprotected heights, moving mechanical parts, or vibration, and should not operate a motor vehicle.

AR 26.

         A. Adverse ...

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