United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
THIS
MATTER is before the Court on Plaintiff Jill
Elizabeth Call's Motion to Reverse and Remand to
Agency for Rehearing, With Supporting Memorandum (the
“Motion”), (Doc. 20), filed June 15, 2017;
Defendant Commissioner Nancy A. Berryhill's Brief in
Response to Plaintiff's Motion to Reverse and Remand the
Agency's Administrative Decision (the
“Response”), (Doc. 22), filed August 11, 2017;
and Ms. Call's Plaintiff's Reply (the
“Reply”), (Doc. 23), filed August 28, 2017.
Ms.
Call filed an application for disability insurance benefits
on December 5, 2012, alleging disability beginning January
30, 2010. (Administrative Record “AR” 12). Ms.
Call claimed she was limited in her ability to work due to:
congestive heart failure, depression, a herniated disc in her
back, arthritis in her spine, sciatica in her left leg,
thyroid disease, and anxiety. (AR 180). Ms. Call's
application was denied initially on May 3, 2013, and upon
reconsideration on November 6, 2013. (AR 12). Ms. Call
requested a hearing before an Administrative Law Judge
(“ALJ”), which was held on March 19, 2015, before
ALJ Eric Weiss, Jr. (AR 25). At the hearing, Ms. Call was
represented by attorney Feliz M. Martone, and Ms. Call and
Sandra Trost, an impartial vocational expert
(“VE”), testified. (AR 27-64).
On
April 27, 2015, ALJ Weiss issued his decision, finding Ms.
Call not disabled at any time between her alleged disability
onset date through the date of the decision. (AR 19-20). Ms.
Call requested review by the Appeals Council, (AR 6-8), which
was denied, (AR 1-5), making the ALJ's decision the
Commissioner's final decision for purposes of this
appeal.
In her
Motion, Ms. Call now argues that the ALJ erred by failing to
properly: (1) evaluate Ms. Call's impairments at step
three; (2) consider Ms. Call's non-severe impairments;
(3) consider Ms. Call's activities of daily living,
social functioning, and concentration, persistence, and pace;
(4) consider the medical opinions of State Agency
consultative examiner John Owen, Ph.D.; and (5) consider the
physical and mental demands of Ms. Call's past relevant
work. (Doc. 20 at 7-15). The Court has reviewed the Motion,
the Response, the Reply, and the relevant law. Additionally,
the Court has meticulously reviewed the administrative
record. Because the ALJ erred in his consideration of Ms.
Call's non-severe impairments and in the evaluation of
Dr. Owen's opinions, the Court finds that Plaintiff's
motion should be GRANTED IN PART.
I.
Standard of Review
The
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); Hamilton v. Sec'y of Health & Human
Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). 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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's
“failure to apply the correct legal standards, or show
. . . that she has done so, are grounds for reversal.”
Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.
1996) (citing Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for the Commissioner's.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214. A court's review is limited to the
Commissioner's final decision, 42 U.S.C. § 405(g),
which is generally the ALJ's decision, rather than the
Appeals Council's denial of review. O'Dell v.
Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
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
ALJ]'s findings from being supported by substantial
evidence.” 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)).
II.
Applicable Law and Sequential Evaluation Process
For
purposes of disability insurance benefits, a claimant
establishes a disability when 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) (2015), 42
U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §
404.1505(a) (2012). In order to determine whether a claimant
is disabled, the Commissioner follows a five-step sequential
evaluation process (“SEP”). Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520 (2012).
At the
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (2) she 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 either (3) her impairment(s) either
meet or equal one of the “Listings”[1] of presumptively
disabling impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); see Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the
claimant cannot engage in past relevant work, the ALJ will
proceed to step five of the evaluation process. At step five
the Commissioner must show 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.
Grogan, 399 F.3d at 1261.
III.
Background
Ms.
Call applied for disability insurance benefits due to:
congestive heart failure, depression, a herniated disc in her
back, arthritis in her spine, sciatica in her left leg,
thyroid disease, and anxiety. (AR 180). At step one, the ALJ
determined that Ms. Call had not engaged in substantial
gainful activity since January 30, 2010, the alleged onset
date. (AR 14).
At step
two, the ALJ concluded that Ms. Call has the following severe
impairments: nonischemic cardiomyopathy, mitral
regurgitation, coronary artery disease, fibromyalgia,
osteoarthritis of the lumbar spine and left shoulder, carpal
tunnel syndrome, Palmar flexor tenosynovitis, and obstructive
sleep apnea. (AR 14). The ALJ further found that Ms. Call has
the following non-severe impairments: subpatellar crepitance
of the knees bilaterally, hyperlipidemia, gastroesophageal
reflux disease, diabetes mellitus, hypertension, obesity,
depressive disorder, and anxiety disorder. Id. The
ALJ stated that Ms. Call's non-severe impairments
“have either improved within one year or are mild to
moderate in nature, ” and that they “are amenable
to control by adherence to recommended medical treatment and
the proper administration of prescribed medications.”
Id. Regarding obesity, the ALJ stated that, at least
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