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Chee v. Berryhill

United States District Court, D. New Mexico

October 31, 2017

WILSON CHEE, 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 Wilson Chee's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum, filed November 18, 2016, and fully briefed on March 6, 2017. Docs. 18, 22, 23, 26. The parties have consented to my entering a final judgment in this case. Doc. 33. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the administrative law judge's (“ALJ”) decision is supported by substantial evidence, and that she applied the correct legal standards. I therefore DENY Mr. Chee's motion and dismiss this case.

         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. Chee is a 34-year-old man who attended school through the 11th grade and later obtained his GED. AR[4] 110, 144, 411, 423. Mr. Chee suffered a traumatic head injury as a child. AR 283, 306, 332, 659, 663, 695, 698. He testified that he is unable to live alone, and during the pendency of this case he has resided with two different girlfriends and his sister. AR 36, 110, 415, 420, 424. Mr. Chee previously has worked at various jobs for short periods of time, including work as an account member at a casino, a cashier, a roustabout, a stocker, a janitor, and a utility clerk. AR 32-34, 145, 150, 413, 432.

         On February 12, 2010, Mr. Chee applied for Supplemental Security Income (SSI) and for Disability Insurance Benefits (DIB), alleging disability since February 9, 2010. AR 110-16. Mr. Chee alleged he was disabled due to a head injury, “left side problems, ” depression, problems with memory, and anger issues. AR 143. Mr. Chee's application was denied initially and upon reconsideration, and Mr. Chee requested a hearing before an ALJ. AR 48-53, 54-63, 65-73, 76-77. ALJ Myriam Fernandez Rice held a hearing on March 13, 2012. AR 26-47. The ALJ issued her unfavorable decision a month later. AR 9-25. The Appeals Council denied Mr. Chee's request for review on July 26, 2013, and Mr. Chee appealed the ALJ's decision to the United States District Court for the District of New Mexico. AR 1-6, 439-42. Upon the agreement of the parties, the District Court remanded the case to the Commissioner for further proceedings. AR 443-44. The Appeals Council remanded the case to the ALJ. AR 445-49.

         On November 12, 2015, ALJ Fernandez Rice conducted a second hearing. AR 408-38. The ALJ issued her second unfavorable decision on January 5, 2016. AR 386-407. At step one, the ALJ found that Mr. Chee had “not engaged in substantial gainful activity since February 9, 2010, the alleged onset date.” AR 392. At step two, the ALJ found that Mr. Chee had the severe impairments of depression, personality disorder secondary to traumatic brain injury, seizures, obesity, and a traumatic brain injury in 1996. Id. The ALJ also found that that Mr. Chee had nonsevere impairments, including left leg weakness and diabetes mellitus. Id. At step three, the ALJ found that none of Mr. Chee's impairments-alone or in combination-met or medically equaled a Listing. AR 393. Because none of the impairments met a Listing, the ALJ moved to step four.

[C]laimaint has the residual functional capacity to perform work at all exertional levels except he cannot climb ladders, ropes or scaffolds. The claimant must also avoid even moderate use of moving machinery, and exposure to unprotected heights. He can maintain, understand, and remember simple work instructions with only occasional changes in work setting. He should have only occasional contact with the public and co-workers.

AR 394-95. The ALJ noted that Mr. Chee had no past relevant work[5] and, therefore, proceeded to step five. AR 399. Based on the testimony of a vocational expert, at step five the ALJ determined that there were jobs that exist in significant numbers in the national economy that Mr. Chee could perform, including hand packager, hand polisher, and hand cleaner/polisher. AR 399-400. Accordingly, the ALJ found that Mr. Chee is not disabled. AR 400.

         Mr. Chee did not file exceptions to the ALJ's decision, and the Appeals Council did not assume jurisdiction, making the ALJ's decision the final decision of the Commissioner. Doc. 18 at 4; Doc. 22 at 2; see also 20 C.F.R. §§ 404.984(a), 416.1484(a) (“when a case is remanded by a Federal court for further consideration, the decision of the administrative law judge will become the final decision of the Commissioner after remand on your case unless the Appeals Council assumes jurisdiction of the case”). Mr. Chee timely filed his appeal to this Court on April 29, 2016. Doc. 1; see also 20 C.F.R. §§ 404.984(c), (d), 416.1484(c), (d) (ALJ's decision becomes final if Appeals Council does not assume jurisdiction within 60 days); 42 U.S.C. § 405(g) (claimant may obtain judicial review of any final decision of the Commissioner by commencing civil action within 60 days after the mailing of notice of the final decision).

         IV. Mr. Chee's Claims

         Mr. Chee raises three arguments on appeal. He contends that the ALJ erred by: 1) improperly rejecting the medical opinion of his treating physician, David Schultz, M.D.; 2) improperly rejecting the findings of examining psychologist John Koewler, Ph.D.; and 3) failing to incorporate portions of the medical opinion of State agency consultant Ralph Robinowitz, Ph.D., into Mr. Chee's RFC without explanation, contrary to Social Security Rulings (“SSR”) 96-6p and 96-8p. I find that the ALJ properly weighed each opinion, and that her explanations were supported by substantial evidence.

         V. ...


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