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Shultz v. Berryhill

United States District Court, D. New Mexico

September 28, 2017

JONATHON E. SHULTZ, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING, UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         I. 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). “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. 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. 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)).

         II. Applicable Law and Sequential Evaluation Process

         To 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. §§ 404.1505(a), 416.905(a).

         When 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[3] 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. Id.

         III. Procedural History

         Mr. 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.[4] 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[5] 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.

         The ALJ 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.[6] 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.

AR 27.

         At step 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.

         On 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. 1.[7]

         IV. Mr. Shultz's Claims

         Mr. 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).

         VI. Analysis

         Mr. 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.

         A. Relevant Law

         “The 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.

         In 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.

         When 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 ...


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