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Call v. Berryhill

United States District Court, D. New Mexico

October 13, 2017

JILL ELIZABETH CALL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          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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