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Gallegos v. Berryhill

United States District Court, D. New Mexico

December 13, 2017

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


         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 17) filed on May 29, 2017. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 6, 8, 9. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted in part.

         I. Procedural History

         This is Plaintiff's second appeal. On July 29, 2011, Mr. Steven Gallegos (Plaintiff) protectively filed applications with the Social Security Administration for a period of disability and disability insurance benefits under Title II of the Social Security Act (SSA), and for Supplemental Security Income under Title XVI of the SSA. Administrative Record[2] (AR) at 29, 94-117. Plaintiff alleged a disability onset date of March 1, 2010. AR at 94, 505. Because Plaintiff's earning record showed that he had “sufficient quarters of coverage to remain insured through September 30, 2010[, ]” Plaintiff was required to “establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits.” See AR at 29.

         Disability Determination Services (DDS) determined that Plaintiff was not disabled both initially (AR at 150-57) and on reconsideration (AR at 120-47). Plaintiff requested review, and, after holding a de novo hearing (AR at 48-93), Administrative Law Judge (ALJ) Barry O'Melinn issued an unfavorable decision on June 23, 2014 (AR at 26-47). The Appeals Council denied Plaintiff's subsequent request for review, making the ALJ's decision the final decision of the Commissioner. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         Plaintiff appealed ALJ O'Melinn's decision to this Court. See Gallegos v. Colvin, CV 15-0148 WPL, Compl. (D.N.M. Feb. 20, 2015). The Honorable William P. Lynch issued a Memorandum Opinion and Order reversing ALJ O'Melinn's decision on March 7, 2016. See id., Mem. Op. & Order (D.N.M. Mar. 7, 2016). Thereafter, the Appeals Council vacated the decision of ALJ O'Melinn and remanded the case “for further proceedings consistent with the order of the court.” AR at 630.

         On May 11, 2016, ALJ Raul C. Pardo held a second de novo hearing. AR at 531-93. ALJ Pardo then issued a partially favorable decision on June 30, 2016, finding that Plaintiff was not disabled before October 31, 2011, but was disabled thereafter. AR at 501-30. There is no evidence that Plaintiff asked the Appeals Council to review ALJ Pardo's decision, so the ALJ's decision became the final decision of the Commissioner 60 days after June 30, 2016. See AR at 502. Plaintiff then filed a suit in this Court seeking remand for a rehearing or an immediate award of benefits. Doc. 1.

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits must establish that he 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) he is not engaged in “substantial gainful activity”; (2) he 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) his impairment(s) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), he is unable to perform his past relevant work. 20 C.F.R §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of [his] medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that” Plaintiff retains sufficient RFC “to perform work in the national economy, given his age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         At Step One of the process, [3] ALJ Pardo found that Plaintiff “has not engaged in substantial gainful activity since the alleged onset date.” AR at 508 (citing 20 C.F.R. §§ 404.1571-1576, 416.971-976). At Step Two, the ALJ concluded that “[s]ince the alleged onset date of disability, March 1, 2010, Plaintiff has had the following severe impairments: Diabetes mellitus with peripheral neuropathy, anxiety, borderline intellectual functioning, and obesity . . . .” AR at 508. “Beginning on the established onset date of disability, October 31, 2011, ” the ALJ found Plaintiff had all of the above severe impairments, as well as mild depression. AR at 508 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).

         At Step Three, the ALJ found that since his “alleged onset date of disability, March 1, 2010, ” Plaintiff “has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 509 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). In making his determination, ALJ Pardo considered listings 11.14 (Peripheral Neuropathies), 12.04 (affective disorders), 12.05 (Intellectual Disability), 12.06 (anxiety related disorders), listings in 9.00 (Endocrine systems), and listings in 11.00 (Neurological System). AR at 509.

         At Step Four, the ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[, ]” the ALJ did not find Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms . . . fully supported prior to October 31, 2011 . . . .” AR at 512. The ALJ considered the evidence of record, including records from Plaintiff's primary care physician, Melanie Ukanwa, M.D., emergency room and hospital records, consultative examinations with physician Laura Hammons, M.D. (one in 2012, a second in 2013), psychologist David LaCourt, Ph.D., and psychiatrist Paul Hughson, M.D., records from vascular surgeon Steve Henao, M.D., a third-party function report from Plaintiff's wife, a third-party statement from Plaintiff's daughter, and testimony from the Plaintiff. AR at 512-21.[4]

         ALJ Pardo found that “[s]ince March 1, 2010, [Plaintiff] has been unable to perform any past relevant work.” AR at 521 (citing 20 C.F.R. §§ 404.1565, 416.965).

Ultimately, the ALJ found that prior to October 31, 2011, the date [Plaintiff] became disabled, [Plaintiff] had the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he can occasionally lift ten pounds and frequently lift less than ten pounds. He can occasionally carry ten pounds and frequently carry less than ten pounds. Sit: Six hours; Stand: Two hours; Walk: Two hours. Push/pull: As much as can lift/carry. No overhead reaching with the right upper extremity. Frequent handling with right upper extremity. No lifting with right upper extremity higher than chest level. Occasional climbing ramps and stairs. No climbing ladders, ropes, ...

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