United States District Court, D. New Mexico
RONALD J. DALTON, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Ronald J.
Dalton's Motion to Remand or Reverse and Brief in Support
of Motion to Remand, filed January 1, 2017, and fully briefed
on May 4, 2017. Docs. 20, 21, 25, 28. The parties have
consented to my entering a final judgment in this case. Docs.
6, 9, 10. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) failed to apply
the correct legal standards in weighing the opinions of two
examining medical sources. I therefore GRANT Mr. Dalton's
motion and remand this case to the Commissioner for
proceedings consistent with this opinion.
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision 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.
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). However,
“‘[t]he 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)).
Applicable Law and Sequential Evaluation Process
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), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505(a), 416.905(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 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 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); 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.
Background and Procedural History
Dalton was born on April 23, 1971. AR 26, 107. His mother
committed suicide when he was nine. AR 1385. By the ninth
grade, Mr. Dalton got in trouble because he was doing a lot
of drugs and was “locked up in a mental ward, ”
remaining in the state's custody until he turned
eighteen. AR 1385-86. Mr. Dalton was never able to obtain his
GED, and has worked different jobs as a way of educating
himself. AR 1380, 1386. His past relevant work includes
working as a cook's helper, a dishwasher, in construction
and labor, and as a cashier at a convenience store. AR
1391-92. At the time of the hearing, Mr. Dalton was married
and living with his wife in an RV in Moriarty, New Mexico. AR
Dalton worked until March 1, 2013, when he was struck by an
automobile while he was walking or riding his bike through an
intersection, which ultimately resulted in a total right knee
replacement. AR 303, 1375-76. He currently makes money by
panhandling and occasionally chopping weeds. AR 1383-84. Mr.
Dalton testified that he is unable to work because he is too
honest during interviews, and explains to potential employers
that he does not “want to be pushed to work too
hard” and reinjure his knee. AR 1379. When asked why he
could not do work if he were permitted to sit all day, Mr.
Dalton responded that such jobs are not available in
Moriarty, where he is currently living, but that he
“would have no problem trying to learn that kind of
stuff.” AR 1379. Mr. Dalton testified that he wanted to
go to school to get his diploma “in something, ”
although he didn't know what. Id.
Dalton filed a Title II application for disability insurance
benefits and a Title XVI application for supplemental income
benefits on April 5, 2013, alleging disability since March 1,
2013, due to “leg injury resulting from being struck by
car on bicycle, hip problems, [and] back problems.” AR
26, 107, 110, 119, 1360-65. Mr. Dalton's application for
benefits was denied initially and upon reconsideration, and
he requested a hearing before an ALJ. AR 26-51, 54-64, 73. On
August 4, 2015, ALJ Deborah Rose conducted a hearing, at
which Mr. Dalton and Mary Diane Weber, a vocational expert,
testified. AR 1366-97. The ALJ issued her unfavorable
decision on December 7, 2015. AR 13-23.
one, the ALJ found that Mr. Dalton had not engaged in
substantial gainful activity since his alleged onset date of
March 1, 2013. AR 15. Because Mr. Dalton had not engaged in
substantial gainful activity for at least 12 months, the ALJ
proceeded to step two. At step two, the ALJ found that Mr.
Dalton suffered from the severe impairments of
“degenerative joint disease, medial meniscus
derangement, and torn ACL of right knee, now status post,
total knee replacement (TKR), depression disorder, learning
disability, attention deficit/hyperactivity disorder (ADHD),
post-traumatic stress disorder (PTSD), history of
poly-substance dependence, reportedly in remission.”
Id. The ALJ found that Mr. Dalton had two nonsevere
impairments: hypertension and a MRSA infection. AR 15-16. At step
three, the ALJ found that none of Mr. Dalton's
impairments-alone or in combination-met or medically equaled
a Listing. AR 16- 17.
none of the impairments met a Listing, the ALJ moved on to
step four. At step four, the ALJ found that:
[C]laimant has the residual functional capacity to perform
less than a full range of medium work as defined in 20 CFR
404.1567(c) and 416.967(c)[.] He has the ability to
lift/carry, push/pull 25-pounds frequently, 50-pounds
occasionally, stand/walk six to 8 hours in an 8-hour day, and
sit six to 8 hours per day. He can occasionally climb, kneel,
crouch, and crawl, and only occasionally operate foot
controls with the right lower extremity. He can understand
and carry out simple instructions, can have superficial and
incidental work-related interaction with coworkers and
supervisors, but no public interaction required to complete
AR 17. Applying this RFC, the ALJ determined that Mr. Dalton
is capable of performing his past relevant work as a
cook's helper. AR 21. The ALJ alternatively found at step
five that “[Mr. Dalton] is capable of making a
successful adjustment to other work that exists in
significant numbers in the national economy[, ]” such
as cleaner II or laundry laborer. AR 22-23.
the ALJ determined that Mr. Dalton was not disabled. AR 23.
The Appeals Council denied Mr. Dalton's request for
review on February 25, 2016. AR 5-7. On April 8, 2016, Mr.
Dalton timely appealed the Commissioner's decision to
this Court. Doc. 1.
Mr. Dalton's Claims
Dalton raises eleven arguments on appeal. He contends the ALJ
erred by: (1) improperly assessing the burden of proof at
step five; (2) making an improper mental medical assessment
and RFC; (3) failing to apply the standards of 20 C.F.R.
§ 1527; (4) rejecting the opinions of Dr. Rajesh and his
staff; (5) criticizing the use of GAF scores by various
practitioners; (6) rejecting Dr. Krueger's assessment;
(7) failing to conduct a drug abuse and alcohol analysis as
required by SSR 13-2; (8) improperly assessing Mr.
Dalton's credibility; (9) improperly finding a
“history of polysubstance abuse” to be a severe
impairment at step two; (10) improperly finding that Mr.
Dalton is only mildly restricted in his social functioning
because he can panhandle; and (11) that the ALJ's
“Physical RFC on knee with no post[-]surgery opinion is
insubstantial evidence.” Doc. 20 at 1-2.
I remand based on the ALJ's failure to appropriately
weigh the conclusions of Drs. Rajesh and Krueger, I do not
address the other alleged errors, 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).