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Salazar v. Berryhill

United States District Court, D. New Mexico

November 22, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 16) filed December 15, 2016, in support of Plaintiff Anna Marie Salazar's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On February 7, 2017, Plaintiff filed her Motion to Remand or Reverse (“Motion”). (Doc. 21.) The Commissioner filed a Response in opposition on May 17, 2017 (Doc. 27), and Plaintiff filed a Reply on June 1, 2017. (Doc. 30.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Anna Marie Salazar (“Ms. Salazar”) alleges that she became disabled on October 1, 2009, at the age of thirty-one because of panic/anxiety attacks, post-traumatic stress disorder, major depression, cyst on left wrist, hip and back pain, insomnia, and fibromyalgia. (Tr. 242-45, 288.[3]) Ms. Salazar completed the ninth grade, and worked as a hotel night auditor, health department receptionist, retail sales representative, and waitress. (Tr. 289.)

         On March 23, 2011, Ms. Salazar protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq.[4] (Tr. 162, 242-45.) Ms. Salazar's application was initially denied on August 11, 2011. (Tr. 162, 221-24.) It was denied again at reconsideration on July 30, 2012. (Tr. 150, 212-14.) On December 20, 2012, Ms. Salazar requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 209.) The ALJ conducted a hearing on January 10, 2014. (Tr. 577-605.) Ms. Salazar appeared in person at the hearing with attorney Helen Lopez. (Id.) The ALJ took testimony from Ms. Salazar (Tr. 580-99), and an impartial vocational expert (“VE”), Judith Beard. (Tr. 599-604.) On March 14, 2014, the ALJ issued an unfavorable decision. (Tr. 136-49.)

         On March 4, 2016, the Appeals Council issued its decision denying Ms. Salazar's request for review and upholding the ALJ's final decision. (Tr. 3-6.) On April 7, 2016, Ms. Salazar timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on substantial evidence where it is supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Commissioner's decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10thCir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         In considering an application for disability insurance benefits, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the claimant successfully meets that burden, 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 RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(v), 416.920(a)(v); Grogan, 399 F.3d at 1261.

         III. Analysis

         The ALJ made his decision that Ms. Salazar was not disabled at step five of the sequential evaluation. He found that Ms. Salazar had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that

it should involve no more than incidental public contact; she can perform detailed but not complex work instructions; and she can perform no more than frequent reaching, handling, or fingering.

(Tr. 143.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Salazar was incapable of performing her past relevant work, but that there were jobs that existed in significant numbers in the national economy that the claimant could perform. (Tr. 148.)

         Ms. Salazar asserts several arguments in support of her Motion. Ms. Salazar argues that (1) the ALJ erred at step three by failing to properly consider treating psychiatrist Margaret Conolly, M.D.'s medical source statement regarding Ms. Salazar's ability to do work-related mental activities; (2) the ALJ erred at step five by failing to state the correct burden of proof; (3) the ALJ failed to determine whether the VE's testimony was consistent with the DOT; (4) the Appeals Council erred in rejecting new additional evidence; (5) the ALJ erred in rejecting treating physician opinions; (6) the ALJ's RFC and credibility assessments were contrary to the legal standards and not supported by substantial evidence; and (7) the ALJ failed to develop the record by recontacting Ms. Salazar's treating physicians, if necessary. (Doc. 23 at 10-28.) The Court finds grounds for remand as discussed below.

         A. Opinion Evidence and RFC Assessment

         Ms. Salazar argues that the ALJ erred in weighing the opinion evidence. In particular, she asserts that the ALJ improperly weighed her treating physician opinions, and improperly accorded great weight to the State Agency medical consultant opinions when their opinions were rendered well before her treating physician opinions. (Doc. 23 at 19-25.) She further asserts that the ALJ's RFC assessment is not supported by substantial evidence because it was based on the outdated State Agency opinions and ignored the contemporaneous treating physician opinions that demonstrated greater functional limitations. (Id. at 25-27.) The Court agrees.

         1. Physical Impairments

         a. Martin Trujillo, M.D.

         On August 8, 2011, Ms. Salazar presented to examining State Agency medical consultant Martin Trujillo, M.D., for a disability determination examination. (Tr. 486-88.) Ms. Salazar reported a history of significant posterior neck, shoulder, and upper back pain, along with headaches. (Tr. 486). She also reported a history of depression, anxiety, and posttraumatic stress disorder. (Id.) She told Dr. Trujillo she was diagnosed with fibromyalgia approximately five months earlier by her primary care physician, but was unaware of trigger point pain or laboratory values done to rule out rheumatological or autoimmune disorders. (Id.) Dr. Trujillo's physical exam was essentially unremarkable, and he noted there was “no tenderness to muscle palpation or specific trigger point pain.” (Tr. 487.) Dr. Trujillo's impression included, inter alia, depression/anxiety, PTSD, possible bipolar disorder, and possible fibromyalgia. (Id.) Dr. Trujillo discussed that Ms. Salazar's primary problem was her psychiatric status and its relationship with her somatic complaints. (Tr. 488.) He recommended, inter alia, a psychiatric and rheumatological evaluation.[5] (Id.)

         The ALJ determined that Dr. Trujillo's physical exam supported his RFC assessment.[6](Tr. 147.)

         b. Misba ...

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