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Serna v. Berryhill

United States District Court, D. New Mexico

November 29, 2017

LORYNN D. SERNA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's “Motion to Remand and Supporting Brief” (“Motion”) filed on March 13, 2017. ECF No. 20. The Commissioner responded on May 12, 2017. ECF No. 22. Plaintiff replied on May 26, 2017. ECF No. 23. Having meticulously reviewed the briefing and the entire record, the Court concludes 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 reasons articulated below, the Court will GRANT Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff was born in New Mexico on October 18, 1968. Administrative R. (“AR”) 51, 444. Plaintiff joined the U.S. Army in 1988, where she served for four years as a mechanic and deployed overseas during Operation Desert Storm. AR 54. Following her honorable discharge in 1992, she received an associate degree from Northern New Mexico Community College and worked from 1994 to her alleged onset date as an x-ray technologist. AR 51-52.

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on March 1, 2012. AR 186-93. Plaintiff claimed disability beginning on January 31, 2012, based on fibromyalgia, degenerative disc disease, post-traumatic stress disorder (“PTSD”), Crohn's disease, migraines, gynecological problems, multiple sclerosis, dyshidrotic eczema from Gulf War syndrome, fingernails falling off from Gulf War syndrome, and irritable bowel syndrome.[1] AR 87-88.

         The Social Security Administration (“SSA”) denied Plaintiff's application initially on September 10, 2012 [AR 100], and upon reconsideration on May 20, 2013. AR 112. At her request, Plaintiff received a de novo hearing before ALJ Michelle Lindsay on January 12, 2015, at which Plaintiff, her attorney, and vocational expert (“VE”) Thomas Greiner appeared. AR 46-86. On May 7, 2015, the ALJ issued her decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 40. Plaintiff appealed to the SSA Appeals Council, but it declined review on September 17, 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) (2017).

         Plaintiff timely filed her appeal with this Court on October 26, 2016. ECF No. 1.


         Plaintiff advances numerous grounds for relief. First, she argues that the ALJ's step three analysis is both fraught with legal error and bereft of evidentiary support. Pl.'s Mot. 5-9, ECF No. 20. Second, Plaintiff contends the ALJ committed legal error by misstating the burden of proof at step five. Id. at 9-10. Third, she claims the ALJ failed to follow Social Security Ruling (“SSR”) 00-4p and relevant case law by neglecting to ask the VE whether his testimony was consistent with the Dictionary of Occupational Titles (“DOT”).[2] Id. at 10-11. Fourth, Plaintiff alleges multiple deficiencies in the ALJ's calculation of Plaintiff's residual functional capacity. Id. at 11-14. Fifth, Plaintiff argues that the ALJ erroneously evaluated medical evidence from: (1) the U.S. Department of Veterans Affairs (“VA”) generally; (2) VA clinical psychologist Maureen M. McAndrews, Ph.D; and (3) consultative psychologist Robert Krueger, Ph.D. Id. at 14-19. Sixth, Plaintiff challenges the ALJ's criticism of her VA disability rating. Id. at 19-21. Seventh, she contends that the ALJ's adverse credibility finding is without evidentiary basis. Id. at 21-24. Lastly, she argues that the ALJ incorrectly applied governing standards in evaluating the statements of Plaintiff's husband and daughter.


         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.[3] 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.”).

         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 examines “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) (2017). 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. 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 residual functional capacity (“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). [Plaintiff] bears the burden of proof on the question of disability for the first four steps. 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, the burden shifts to the Commissioner at the fifth step to show 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).


         The ALJ issued her decision on May 7, 2015. AR 40. At step one, she found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of January 31, 2012. AR 32. At step two, the ALJ found Plaintiff to suffer from numerous severe impairments, including: (1) fibromyalgia; (2) mild degenerative disc disease of the lumbar spine; (3) Crohn's disease; (4) migraines; (5) depressive disorder; and (6) PTSD. AR 32. The ALJ declined, however, to find that Plaintiff suffered from multiple sclerosis (“MS”). Rather, she opined that “there is no evidence of [Plaintiff] ever having a diagnosis of MS, ” and therefore “a lack of objective evidence to substantiate the existence of a medically determinable impairment of multiple sclerosis.” AR 32-33.

         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 33-34. This finding included an analysis of Plaintiff's mental impairments, which the ALJ found did not meet or medically equal the criteria of Listing Sections 12.04 (affective disorders), 12.06 (anxiety-related disorders), or 12.09 (substance addiction disorders).[4] AR 24-26.

         The ALJ found that the paragraph B criteria of Listings 12.04 and 12.06 were not met “[b]ecause the claimant's mental impairments do not cause at least two ‘marked' limitations or one ‘marked' limitation and ‘repeated' episodes of decompensation, each of extended duration.” AR 34. She then explained her reasoning regarding paragraph B's four subparts, beginning with activities of daily living. There, the ALJ found Plaintiff to have only a mild restriction. The ALJ observed that Plaintiff was able to do laundry, wash dishes, engage in personal care, make simple meals, and read. AR 33. She also noted that Plaintiff could lift ten pounds, sit for one half hour, stand for twenty minutes, and walk for ten. AR 33. Additionally, the ALJ looked to Plaintiff's VA records, which indicated Plaintiff “was able to perform routine activities of daily living.” AR 33 (citing AR 821).

         As to social functioning, the ALJ found Plaintiff to suffer moderate difficulties. The ALJ supported her finding by citing to Plaintiff's self-reported “Function Report - Adult.” AR 33; see AR 247-54. Therein, Plaintiff reported that she occasionally shopped with her husband[5] and socialized with family members on the phone. AR 33.

         The ALJ also found Plaintiff to suffer moderate difficulties with concentration, persistence, and pace. She relied again on Plaintiff's self-reporting to observe that Plaintiff could handle her financial affairs and watch television all day, but that she required reminders to attend doctor appointments, and that she followed spoken instructions better than written instructions. AR 34.

         The ALJ concluded her paragraph B discussion by finding that Plaintiff “has experienced no episodes of decompensation, which have been of extended duration.” AR 34. This same finding also supported the ALJ's conclusion that Plaintiff had failed to establish the ‘paragraph C' criteria.”[6] AR 34. The ALJ explained that there was “no evidence” of a “residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in environment would be predicted to cause [Plaintiff] to decompensate” or one or more years of a history of an “inability to function outside a highly supportive living arrangement.” AR 34. Furthermore, she reasoned that Plaintiff failed to establish a “complete inability to function independently outside the area of [her] home, ” and as a consequence, she concluded that Plaintiff had failed to qualify under the paragraph C criteria of either Listing 12.04 or 12.06. AR 34.

         Because none of Plaintiff's impairments satisfied an applicable Listing, the ALJ moved on to step four and assessed Plaintiff's RFC. AR 34-39. “After careful consideration of the entire record, ” the ALJ determined that Plaintiff had the residual functional capacity to perform a range of light work, as defined in 20 C.F.R. § 404.1567(b), with the following limitations:

the ability to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for six hours out of an eight-hour workday with regular breaks; sit for six hours out of an eight-hour workday with regular breaks; and push and pull 20 pounds occasionally and 10 pounds frequently. She is further limited in that she can only occasionally climb stairs and ramps, balance, stoop, crouch, kneel, and crawl; can never climb ladders, ropes[, ] or scaffolds; and must avoid more than occasional exposure to extreme heat or cold. She is also limited to understanding, remembering, and carrying out simple instructions; is able to maintain attention and concentration to perform only simple tasks for two hours at a time without requiring redirection to task; can have only occasional contact with the general public; can have only superficial ...

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