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Bernal v. Berryhill

United States District Court, D. New Mexico

January 9, 2018

FRANK ANTHONY BERNAL, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's Motion to Remand the Social Security Agency (“SSA”) decision to deny Plaintiff Supplemental Security Income (“SSI”). Doc. 25. For the reasons explained below, I recommend denying Plaintiff's motion and affirming the judgment of the SSA.

         I. Procedural History

         On February 6, 2013, Plaintiff filed applications for SSI and Social Security Disability Insurance Benefits (“SSDI”), alleging a disability onset date of June 1, 1998. Administrative Record (“AR”) at 74, 80, 204. Plaintiff alleged that he had a disability resulting from testicular cancer and head injury. AR at 82, 105. The claims were initially denied on December 18, 2013, and upon reconsideration on April 11, 2014. AR at 73-113. Thereafter, Plaintiff filed a written request for a hearing on June 3, 2014. AR at 134-35. An Administrative Law Judge (“ALJ”) held a hearing on October 19, 2015. AR at 34-70. During the hearing on his SSI and SSDI applications, Plaintiff amended his disability onset date to February 6, 2013, which post-dates his date last insured in 2001. AR at 35-36. Accordingly, Plaintiff voluntarily withdrew his request for a hearing on his SSDI application, resulting in the dismissal of that application. AR at 36, 13. Therefore, this appeal concerns Plaintiff's SSI application only.

         On December 1, 2015, the ALJ issued an unfavorable decision on Plaintiff's SSI application, concluding that Plaintiff was not disabled. AR at 13-27. Plaintiff appealed the denial of his application to the Appeals Council, which declined review on November 7, 2016. AR at 1-7. Plaintiff filed suit in this Court on December 15, 2016, seeking review of the ALJ's decision. Doc. 1.

         II. Standard of Review

         Pursuant to 42 U.S.C. § 405(g), a court may review a final decision of the Commissioner only to determine whether it (1) is supported by “substantial evidence” and (2) comports with the proper legal standards. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir. 1991). “In reviewing the ALJ's decision, we neither reweigh the evidence nor substitute our judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotations omitted).

         Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Casias, 933 F.3d at 800. “The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). “[I]n addition to discussing the evidence supporting his decision, the ALJ must also discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id. at 1010. “The 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).

         III. Parties' Positions

         Plaintiff asserts that the ALJ committed reversible error on the grounds that the ALJ (1) improperly determined that Plaintiff's borderline intellectual impairment does not meet or medically equal Listing 12.05C, for intellectual disability; (2) failed to analyze whether Plaintiff's borderline intellectual impairment met Listing 12.02, for neurocognitive disorders; (3) improperly afforded only some weight to the medical opinion of consultative psychological examiner Michael Emery, Ph.D.; and (4) did not comport with proper legal standards in step five of the sequential disability analysis by failing to resolve inconsistencies in the testimony of the vocational expert (“VE”). See doc. 25 at 5-17; doc. 28.

         Defendant argues that there was no reversible error, because (1) substantial evidence supported the ALJ's finding that Plaintiff did not have a disabling listing-level mental impairment, (2) the ALJ provided proper reasons for discounting Dr. Emery's opinion, and (3) the ALJ comported with the applicable legal standards when performing step five of her disability analysis, because the VE's testimony contained no inconsistencies. See doc. 27 at 5-13. Ultimately, I recommend finding that the ALJ did not commit reversible error, and that the opinion should be affirmed.

         IV. ALJ Evaluation

         A. Legal Standard

         For purposes of SSI benefits, an individual is disabled when 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. § 1382c(a)(3)(A). To determine whether a person satisfies these criteria, the SSA has developed a five-step test. See 20 C.F.R. § 416.920. If the Commissioner finds an individual disabled at any step, the next step is not taken. Id. § 416.920(a)(4).

         At the first four steps of the analysis, the claimant has the burden 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 that either (3) his impairments meet or equal one of the “Listings” of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” Id. § 416.920(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

         Step four of this analysis consists of three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ determines the claimant's residual functional capacity (“RFC”) in light of “all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3). A Plaintiff's RFC is “the most [he] can still do despite [physical and mental] limitations.” Id. § 416.945(a)(1). Second, the ALJ determines the physical and mental demands of the claimant's past work. “To make the necessary findings, the ALJ must obtain adequate ‘factual information about those work demands which have a bearing on the medically established limitations.'” ...


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