United States District Court, D. New Mexico
MICHAEL A. TARIN, Plaintiff,
NANCY 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 Michael A.
Tarin's Motion to Reverse and Remand for a Rehearing, or
in the Alternative, Motion for Sentence Six Remand, with
Supportive Memorandum, filed November 30, 2016, and fully
briefed on March 8, 2017. Docs. 20, 24, 25, 26. The parties
have consented to my entering a final judgment in this case.
Docs. 4, 11, 12. Having meticulously reviewed the entire
record and being fully advised in the premises, I find that
the Administrative Law Judge (“ALJ”) failed to
apply the correct legal standards when assessing Mr.
Tarin's credibility regarding his pain. Mr. Tarin asks
the Court to remand for an immediate payment of benefits, or
in the alternative, for rehearing. Doc. 20 at 26. For the
reasons stated below, I DENY the request for an immediate
payment of benefits, but I otherwise GRANT Mr. Tarin's
motion and remand this case to the Commissioner for
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 1261. 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 then 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.
Background and Procedural History
Tarin is a 46-year-old man with a tenth-grade education.
37. He is single and lives alone in Las Cruces, New Mexico.
AR 38. He has a history of working as a stocker, asphalt
laborer, construction laborer, concrete finisher, and a fence
installer. AR 40-43, 59, 309. Mr. Tarin initially applied for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) on March 3,
2010, alleging disability since January 1, 2008. AR 244-56.
He alleged he was disabled due to bipolar disorder,
depression, anxiety, and degenerative disc disease. AR 307.
Tarin's March 2010 application for benefits was denied
initially and upon reconsideration, and Mr. Tarin requested a
hearing before an ALJ. AR 83-86, 104-10, 112-16. ALJ Gerardo
Perez held a hearing on September 5, 2012. AR 71-82. At that
hearing, ALJ Perez granted Mr. Tarin a postponement because
his representative was not present. AR 73, 79. ALJ Perez
noticed a second hearing to take place on February 3, 2013.
AR 162-82. Mr. Tarin did not appear at the hearing, which
prompted ALJ Perez to dismiss his claims. AR 87-91. Mr. Tarin
requested review by the Appeals Council. AR 185-87. On
December 11, 2013, the Appeals Council reinstated Mr.
Tarin's claims and remanded his case because notice of
the February 2013 hearing was sent to the wrong address. AR
92-94. On remand, ALJ Michelle Lindsay conducted a hearing on
August 20, 2014. AR 29-68. At the hearing, the ALJ confirmed
Mr. Tarin was insured through September 30, 2015, and Mr.
Tarin amended his alleged onset date to February 1, 2013. AR
issued her unfavorable decision on November 26, 2014. AR
10-28. At step one, the ALJ found that Mr. Tarin had not
engaged in substantial gainful activity since his alleged
onset date of February 1, 2013. AR 15. Because Mr. Tarin had
not engaged in substantial gainful activity for at least 12
months, the ALJ proceeded to step two. At step two, the ALJ
found that Mr. Tarin suffered from the severe impairments of
“degenerative disc disease of the lumbar and thoracic
spine, hypertension, bipolar disorder, and drug and alcohol
abuse.” Id. At step three, the ALJ found that
none of Mr. Tarin's impairments-alone or in
combination-met or medically equaled a Listing. AR 16-17.
Because none of the impairments met a Listing, at step four,
the ALJ assessed Mr. Tarin's RFC, finding that:
[C]laimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b).
He is further limited in that he can occasionally climb
stairs and ramps, occasionally stoop, crouch, kneel or crawl,
but he must never climb ladders, ropes, or scaffolds. He is
also limited to understanding, remembering, and carrying out
only simple instructions and limited to maintaining attention
and concentration for performing only simple tasks for two
hours at a time without requiring redirection to tasks.
Additionally, he can have only occasional contact with the
general public, superficial interactions with co-workers and
supervisors, and, he requires work with no more than
occasional change in the routine work setting, thereby
limiting him [to] simple, concrete, repetitive work.
AR 17. The ALJ determined that Mr. Tarin was unable to
perform any past relevant work and, therefore, continued to
step five. AR 20. At step five, relying on the testimony of a
vocational expert, the ALJ found that there were a
significant number of jobs in the national economy that Mr.
Tarin could perform, including assembler, finish inspector,
and ironer. AR 21. Accordingly, the ALJ found that Mr. Tarin
“is capable of making a successful adjustment to other
work that exists in significant numbers in the national
economy, ” and is, therefore, not disabled. AR 21.
March 30, 2016, the Appeals Council denied Mr. Tarin's
request for review of his claim for SSI and dismissed Mr.
Tarin's request for review of his claim for DIB, making
the ALJ's decision the final decision of the Commissioner
and prompting this appeal. AR 1-7. Mr. Tarin timely filed his
appeal to this Court on May 17, 2016. Doc. 1.
Mr. Tarin's Claims
Tarin raises three main issues on appeal. First, Mr. Tarin
contends that the Commissioner denied him due process when
the ALJ changed his date last insured from September of 2015
(as stated at the hearing) to September of 2011 (as stated in
the ALJ's decision). Doc. 20 at 4, 16. As the
Commissioner acknowledges that Mr. Tarin's date last
insured for DIB was September 2015, this issue is now moot,
and the Court will not address it. Doc. 24 at 22; Doc. 25 at
1. Second, Mr. Tarin argues that the ALJ failed to properly
assess his RFC by failing to conduct a function-by-function
analysis, by failing to properly analyze all of the medical
opinions, and by failing to account for all of his
limitations. Doc. 20 at 4, 17-21. Mr. Tarin further
criticizes the ALJ's RFC finding for relying on an
improper credibility finding. Id. at 4, 23-24.
Third, Mr. Tarin contends that the ALJ's RFC errors
tainted the testimony of the VE, and that the ALJ failed to
resolve the conflict between the VE's testimony and the
Dictionary of Occupational Titles, rendering the VE's
testimony “inherently unreliable.” Id.
at 4, 24-26.
that the ALJ failed to apply the proper legal standards when
assessing Mr. Tarin's credibility regarding his level of
pain and its effects. Therefore, remand is required. I do not
address Mr. Tarin's 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).
Tarin argues that the ALJ erred in assessing his RFC largely
because the RFC did not account for the medical evidence that
supported Mr. Tarin's claims of severe pain when walking,
standing and sitting. See Doc. 20 at 17-20. He
asserts that the ALJ exacerbated this error by failing to
apply the correct legal standards in evaluating his
credibility regarding the level of pain he was experiencing
and its limiting effects. See Id. at 23. The
Commissioner responds that ALJ correctly assessed Mr.
Tarin's RFC and correctly evaluated his credibility by
considering his “non-compliance with treatment and
continued use of marijuana and alcohol.” ...