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Cordova v. Berryhill

United States District Court, D. New Mexico

November 9, 2017

FRANCISCO CORDOVA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's “Motion to Reverse or Remand the Administrative Decision” [ECF No. 18] and “Memorandum Brief in Support of Plaintiff's Motion to Reverse or Remand the Administrative Decision” (collectively, “Motion”), [1] filed on February 22, 2017. ECF No. 19. The Commissioner responded on April 28, 2017. ECF No. 21. Plaintiff replied on May 10, 2017. ECF No. 22. Having meticulously reviewed the briefing and the entire record, the Court finds that Plaintiff's Motion is well taken and that the Administrative Law Judge's (“ALJ's”) ruling should be REVERSED and REMANDED. Therefore, and for the further reasons articulated below, the Court will GRANT Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff was born on September 16, 1961, in Santa Fe, New Mexico. Administrative R. (“AR”) 233-34. He attended school until the tenth grade but did not receive a diploma. AR 271. Plaintiff later obtained a General Educational Development (“GED”) certificate while he was incarcerated. AR 85. Plaintiff's work history included employment as a prep cook, handyman, and auto mechanic. AR 85.

         Plaintiff filed an application for Supplemental Security Income (“SSI”) on November 27, 2012, alleging disability beginning on July 30, 2012, due to paranoid schizophrenia, bipolar disorder, anxiety disorder, and physical limitations stemming from back and right shoulder injuries. AR 238. The Social Security Administration (“SSA”) denied Plaintiff's application initially on March 19, 2013 [AR 138], and upon reconsideration on July 19, 2013. AR 153. At his request, Plaintiff received a de novo hearing before ALJ John W. Rolfe on October 2, 2014, at which Plaintiff, his attorney, and a vocational expert (“VE”) appeared. AR 81-119. On January 16, 2015, the ALJ issued his decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 60-73. Plaintiff appealed to the SSA Appeals Council (“Appeals Council”), but it declined review on June 27, 2016. AR 1-4. As a consequence, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2016).

         Plaintiff timely filed his appeal in this Court on August 12, 2016. ECF No. 1.

         II. PLAINTIFF'S CLAIMS

         Plaintiff advances five grounds for relief. First, he argues that the ALJ erroneously evaluated the medical evidence and misapplied relevant governing regulations. Pl.'s Mot. 6-9, ECF No. 19. Second, he contends the ALJ improperly assessed his limitations under the “paragraph B” criteria of the mental Listings of Impairments (“Listings”). Id. at 9-14. Third, Plaintiff alleges that the ALJ impermissibly failed to incorporate certain limitations into his residual functional capacity (“RFC”). Id. at 14-19. Fourth, Plaintiff claims that the ALJ's adverse credibility finding is fraught with legal error. Id. at 19-21. Lastly, he challenges the ALJ's step five findings. Id. at 20-24.

         III. APPLICABLE LAW

         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[2] The Court's review of that final agency decision is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”)

         The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 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). 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. Substantial evidence does not, however, require a preponderance of the evidence. See 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)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         As for the review of the ALJ's legal decisions, the Court reviews “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Ultimately, if substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.

         B. Sequential Evaluation Process

         The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2016). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App'x 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's RFC. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of her past relevant work to determine if the claimant is still capable of performing her past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).

         If the claimant cannot return to her past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).

         IV. THE ALJ'S DECISION

         The ALJ issued his decision on January 16, 2015. AR 57. At step one, he found that Plaintiff had not engaged in substantial gainful activity since the protective filing date[3] of November 27, 2012. AR 62. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: (1) obesity; (2) diabetes mellitus; (3) status post right shoulder injury; (4) schizophrenia/psychotic disorder not otherwise specified (in remission); and (5) anxiety disorder (not otherwise specified). AR 62.

         At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 63-65. The ALJ began with Plaintiff's physical impairments, and found that Plaintiff did not meet or medical equal Listing 1.02 for major dysfunction of a joint. To meet that Listing, Plaintiff would have had to establish that his back pain or shoulder pain resulted in “an inability to ambulate effectively” or the “inability to perform fine and gross movements effectively.” AR 63. The ALJ addressed Plaintiff's back pain by noting that in his “Function Report - Adult, ” Plaintiff self-reported that “he does not require assistive devices to ambulate.” AR 63 (citing AR 267). He further observed that during a consultative examination, Plaintiff “was able to get on and off the exam table without difficulty.” AR 63 (citing AR 564). As to Plaintiff's shoulder injury, the ALJ recounted that Plaintiff does not “allege that he is unable to perform fine and gross movements effectively.” AR 63. Additionally, the ALJ took account of Plaintiff's statement “that he has spent time working on cars, which requires fine and gross movement of the upper extremity.” AR 63. Thus, because Plaintiff could ambulate independently and effectively perform relevant movements with his affected upper extremity, the ALJ found he did not meet or medically equal Listing 1.02.

         Additionally, the ALJ considered Plaintiff's diabetes mellitus under Listing 9.00, which directed the ALJ to assess Plaintiff's condition under applicable listings for other body systems.[4]AR 63. The ALJ framed the discussion by stating, “[d]iabetes is not a listed impairment, however, its effects on other body systems, if sufficiently severe, may meet [L]istings for those body systems.” AR 63. Upon review, the ALJ did not find the required severity of symptoms in any of Plaintiff's other body systems, and therefore, he found that Plaintiff's diabetes mellitus did not meet or medically equal Listing 9.00. AR 63.

         The ALJ then turned to Plaintiff's obesity, which he pointed out “is not a listed impairment, ” but “may be found to equal a [L]isting, or alternatively, may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a [L]isting.” AR 63 (internal citation and quotation marks omitted). He noted that “the record does contain references to [Plaintiff's] obesity, ” but also found that the record indicated Plaintiff “has been able to exercise frequently” and engage in activities “like walking around town with his wife.” AR 63. As a consequence, the ALJ found ...


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