United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Laura
Fashing, United States Magistrate Judge
THIS
MATTER comes before the Court on plaintiff Nichole
McGuire's Motion to Reverse and Remand for Rehearing with
Supporting Memorandum (Doc. 21), which was fully briefed
March 24, 2017. See Docs. 26, 27, 28. The parties
consented to my entering final judgment in this case. Docs.
4, 8, 9. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) erred in finding
Ms. McGuire's impairments not severe at step two. I
therefore GRANT Ms. McGuire's motion and remand this case
to the Commissioner for further 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 1260-61. 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 of proof 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.
Procedural History
Ms.
McGuire was born in 1982, has a bachelor's degree, and
has past work experience as a restaurant assistant manager,
call center employee, retail salesperson, and most recently
as a substitute teacher. AR 207, 282, 387.[4] Ms. McGuire filed
applications for supplemental security income and disability
insurance benefits on March 25, 2014, alleging disability
since March 1, 2013 due to anxiety, depression, and a
“bad back.” AR 200-12, 281. The Social Security
Administration (“SSA”) denied her claims
initially on October 15, 2014. AR 139-43. The SSA denied her
claims on reconsideration on February 18, 2015. AR 145-48.
Ms. McGuire requested a hearing before an ALJ. AR 149. On
February 10, 2016, ALJ Barry O'Melinn held a hearing. AR
38-68. The ALJ issued his unfavorable decision on March 4,
2016. AR 20-37.
The ALJ
found that Ms. McGuire met the insured status requirements of
the Social Security Act through September 30, 2015. AR 25. At
step one, the ALJ found that Ms. McGuire had not engaged in
substantial, gainful activity since March 1, 2013.
Id. At step two, the ALJ found that Ms. McGuire had
the following medically determinable impairments:
“obesity, degenerative disc disease, and mental
impairments variously diagnosed to include depression,
anxiety, and bipolar disorder.” Id. The ALJ
found, however, that Ms. McGuire did not have a severe
impairment or combination of impairments, and therefore was
not disabled. AR 26-32. The ALJ did not complete any of the
other steps in the sequential evaluation process beyond step
two.
On
April 25, 2016, Ms. McGuire requested that the Appeals
Council review the ALJ's unfavorable decision. AR 14-16.
On June 14, 2016, the Appeals Council denied the request for
review. AR 1-6. Ms. McGuire timely filed her appeal to this
Court on July 15, 2016. Doc. 1.[5]
IV.
Ms. McGuire's Claims
Ms.
McGuire raises two arguments for reversing and remanding this
case: (1) the ALJ erred in finding her impairments not
severe; 2) the ALJ's credibility finding is contrary to
the evidence and the law. Doc. 21 at 3, 14. In response to
Ms. McGuire's first claim of error, the Commissioner
argues that Ms. McGuire “had the burden of establishing
that her mental impairments were severe, and did not meet
that burden.” Doc. 26 at 11. The Commissioner asserts
that “[t]he ALJ's conclusion that [Ms. McGuire] did
not have a severe impairment was supported by substantial
evidence and free from harmful legal error.”
Id. at 16-17. Because I agree that the ALJ erred in
finding Ms. McGuire's impairments not severe at step two,
I grant her motion to remand to give the ALJ an opportunity
to remedy his error. I do not reach Ms. McGuire's other
alleged error, 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.
Analysis
At step
two, the agency determines whether the claimant's alleged
impairment or combination of impairments is
“severe.” 20 C.F.R. §§
404.1520(a)(4)(ii), (c); 416.920(a)(4)(ii), (c). A
claimant's impairment or combination of impairments is
severe if it “significantly limits her ability to do
basic work activities.” Fleetwood v. Barnhart,
211 F. App'x 736, 739 (10th Cir. 2007) (internal
citations omitted).
The SSA
regulation that governs the determination of severity at step
two is designed to screen out only those claimants with
“impairments of a minimal nature which could never
prevent a person from working.” SSR 85-28[6] (S.S.A. 1985),
1985 WL 56856, at *2 (internal citation and quotation
omitted). Step two is designed “to weed out at an early
stage of the administrative process those individuals who
cannot possibly meet the statutory definition of
disability.” Bowen v. Yuckert, 482 U.S. 137,
156 (1987) (O'Connor, J., concurring). The inquiry at
step two is a “de minimis screening device to dispose
of groundless claims.” Smolen v. Chater, 80
F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482
U.S. at 153-54). Given the purpose behind step two,
“case law prescribes a very limited role for step two
analysis.” Lee v. Barnhart, 117 F. App'x
674, 676-77 (10th Cir. 2004) (unpublished).
The
claimant has the burden of proof at step two to show that he
or she has an impairment severe enough to interfere with the
ability to work. Bowen, 482 U.S. at 146-54. Although
the claimant “must show more than the mere presence of
a condition or ailment[, ]” Hinkle v. Apfel,
132 F.3d 1349, 1352 (10th Cir. 1997), the burden at step two
is a de minimis showing of impairment, Hawkins v.
Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (internal
citation omitted); see also Lee, 117 F. App'x at
677 (“a claimant need only make a ‘de
minimus' showing of impairment to move on to further
steps in the analysis.”).
The
determination of whether an impairment is severe at step two
“is based on medical factors alone, and does not
include consideration of such vocational factors as age,
education, and work experience.” Langley v.
Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (internal
citation and quotation omitted). At step two, “medical
evidence alone is evaluated in order to assess the effects of
the impairment(s) on ability to do basic work
activities.” SSR 85-28, 1985 WL 56856, at *4. Basic
work activities are “abilities and aptitudes necessary
to do most jobs.” 20 C.F.R. §§ 404.1521(b),
416.921(b) (both effective March 5, 1985 through March 26,
2017). These “abilities and aptitudes” include
“walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple
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