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Tarin v. Berryhill

United States District Court, D. New Mexico

September 29, 2017

MICHAEL A. TARIN, Plaintiff,
v.
NANCY 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 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.

         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 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.

         III. Background and Procedural History

         Mr. Tarin is a 46-year-old man with a tenth-grade education. AR[4] 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.

         Mr. 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 34-35.

         The ALJ 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.

         On 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.

         IV. Mr. Tarin's Claims

         Mr. 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.

         I find 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).

         V. Discussion

         Mr. 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.” ...


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