United States District Court, D. New Mexico
JONATHON E. SHULTZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on plaintiff Jonathon E.
Shultz's Motion to Reverse and Remand for Rehearing with
Supporting Memorandum (Doc. 21), which was fully briefed on
January 30, 2017. See Docs. 25, 28, 29. The parties
consented to my entering final judgment in this case. Docs.
6, 8, 9. Having meticulously reviewed the entire record and
being fully advised in the premises, the Court finds that the
Administrative Law Judge (“ALJ”) failed to follow
and apply Social Security Ruling (“SSR”) 83-20 in
determining Mr. Shultz's disability onset date. The Court
therefore GRANTS Mr. Shultz's motion and remands this
case to the Commissioner for further proceedings consistent
with this opinion.
Standard of Review
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). 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).
“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 and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A 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 the Court
may not reweigh 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
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] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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. §§
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
the claimant is not engaged in “substantial gainful
activity;” (2) the claimant 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) the
impairment(s) either meet or equal one of the
Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1260-61. If the claimant cannot show that his or
her impairment meets or equals a Listing but proves that he
or she is unable to perform his or her “past relevant
work, ” the burden of proof shifts to the Commissioner,
at step five, to show that the claimant is able to perform
other work in the national economy, considering the
claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Shultz was born in 1973, completed two years of college, and
has past work experience as a data entry clerk, store clerk,
support technician at a call center, and as a network
administrator at a school. AR 28, 177, 207. Mr. Shultz filed
applications for supplemental security income
(“SSI”) and disability insurance benefits
(“DIB”) in January of 2012. AR 177- 89. He
alleged disability since May 29, 2010 due to a herniated lumbar
disc and sciatica. AR 39, 206. The Social Security
Administration (“SSA”) denied his claims
initially on May 30, 2012. AR 72-91. The SSA denied his
claims on reconsideration on June 7, 2013. AR 92-115. Mr.
Shultz requested a hearing before an ALJ. AR 136-38. On
August 5, 2014, ALJ Donna Montano held a hearing. AR 36-71.
ALJ Montano issued her unfavorable decision on September 22,
2014. AR 18-35.
found that Mr. Shultz met the insured status requirements of
the Social Security Act through December 31, 2010. AR 25. At
step one, the ALJ found that Mr. Shultz had not engaged in
substantial, gainful activity since his alleged onset date of
May 29, 2010. Id. At step two, the ALJ found that
Mr. Shultz suffered from the following severe impairments:
obesity, herniated lumbar disc, L5-S1 paracentral disc
extrusion with mass effect on left SI nerve root, and chronic
pain disorder. Id. The ALJ found that Mr. Shultz had
the additional severe impairments of severe depression and
anxiety beginning on his established onset date of January 9,
2012. Id. At step three, the ALJ found that none of
Mr. Shultz's impairments, alone or in combination, met or
medically equaled a Listing. Id. Because the ALJ
found that Mr. Shultz's impairments did not meet a
Listing, the ALJ assessed Mr. Shultz's RFC. AR 25-28. The
ALJ set two separate RFCs for Mr. Shultz: one for the period
prior to January 9, 2012, and one for the period beginning
January 9, 2012. Id. For the period prior to
January 9, 2012, the ALJ found that Mr. Shultz had the RFC to
perform a full range of sedentary work. AR 25.
“Beginning on January 9, 2012, ” the ALJ found
that Mr. Shultz had the RFC to perform less than a full range
of sedentary work, in that he
can stand and/or walk for two hours in an eight-hour workday;
sit for six hours in an eight hour workday; is limited to
occasional climbing, kneeling, crouching, stooping, crawling.
He must however, have an option to change positions from
sitting to standing at will; and would need to take two extra
breaks in addition to usual and customary breaks and lunch;
and he would be off task up to 10 percent of day due to
chronic pain or depression.
four, the ALJ concluded that Mr. Shultz was unable to perform
his past relevant work as network administrator, support
technician at a call center, data entry clerk or liquor store
clerk. AR 28. At step five, prior to January 9, 2012, and
based on an RFC for a full range of sedentary work, the ALJ
found that Mr. Shultz was not disabled under section 204.00
of the Medical-Vocational Guidelines. AR 29. At step five,
beginning on January 9, 2012, and based on an assessed RFC
with less than a full range of sedentary work, the ALJ found
that there were no jobs that exist in significant numbers in
the national economy that Mr. Shultz could perform. AR 29-30.
The ALJ therefore found him disabled at step 5 for the period
beginning on January 9, 2012. AR 30.
October 24, 2014, Mr. Shultz requested review of the
ALJ's unfavorable decision by the Appeals Council. AR 17.
Mr. Shultz submitted additional evidence to the Appeals
Council, which the Appeals Council made part of the record.
AR 6. On December 8, 2015, the Appeals Council denied the
request for review. AR 1-7. Mr. Shultz timely filed his
appeal to this Court on February 3, 2016. Doc.
Mr. Shultz's Claims
Shultz raises five arguments for reversing and remanding this
case: (1) the ALJ failed to follow and apply SSR 83-20 in
determining the onset of his disability, (2) the Appeals
Council failed to properly consider the opinion of Dr. John
Vigil, (3) the ALJ failed to perform a proper treating
physician analysis of Dr. Valerian Gieri's opinion for
the period before January 9, 2012, (4) the ALJ failed to
account for the limiting effects of his severe obesity; (5)
the ALJ failed to properly analyze his allegations of pain
and other symptoms. Doc. 21 at 2, 9-21. Because I remand
based on the ALJ's failure to follow and apply SSR 83-20,
I do not address the other alleged errors, which “may
be affected by the ALJ's treatment of this case on
remand.” Watkins v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).
Shultz argues that his back pain, depression, and anxiety are
slowly progressive impairments. Doc. 21 at 11. He further
asserts that there is “a dearth of medical information
in the record” about the progression of these
impairments between May 29, 2010 (his alleged date of onset)
and January 9, 2012 (the date the ALJ found him disabled from
these impairments). Id. at 11-12. Mr. Shultz argues
that the record about the onset of his disabilities is
ambiguous, and that the ALJ therefore erred by failing to
call on a medical advisor. Doc. 28 at 2-3. The Commissioner
responds that the record is not ambiguous, and that the ALJ
was not required to call a medical advisor. Doc. 25 at 7-8. I
agree with Mr. Shultz.
onset date of disability is the first day an individual is
disabled as defined in the Act and the regulations.”
SSR 83-20, 1983 WL 31249, at *1. The ALJ must establish an
onset date of disability, and “it is essential that the
onset date be correctly established and supported by the
evidence.” Id. To be eligible for disability
insurance benefits, a claimant must prove that he is disabled
during the period he is still insured for disability
benefits. Id. However, “the expiration of
insured status is not itself a consideration in determining
when disability first began.” Id.
determining the onset date of disabilities with nontraumatic
origins, the ALJ must consider several factors: “the
applicant's allegations, work history, if any, and the
medical and other evidence concerning impairment
severity.” Id. at *2. The ALJ should adopt the
onset date alleged by the individual if it is consistent with
the all of the available evidence. Id. at *3.
Medical evidence, however, is the most important factor in
determining the onset date, and the onset date can never be
inconsistent with the medical evidence. Id. at *2.
the medical evidence does not establish a precise onset date,
the ALJ may have to “infer the onset date from the
medical and other evidence that describe the history and
symptomatology of the disease process.” Id.;
see also Blea v. Barnhart, 466 F.3d 903, 909 (10th
Cir. 2006). “With slowly progressive impairments, it is
sometimes impossible to obtain medical ...