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Scrivner v. Berryhill

United States District Court, D. New Mexico

January 11, 2018

CAROL ANN SCRIVNER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Carol Ann Scrivner's Motion to Reverse and Remand for Rehearing, With Supporting Memorandum (the “Motion”), (Doc. 23), filed September 30, 2017; Defendant Commissioner Nancy A. Berryhill's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the “Response”), (Doc. 25), filed November 29, 2017; and Ms. Scrivner's Reply to Brief in Response to Plaintiff's Motion to Reverse and Remand (the “Reply”), (Doc. 28), filed December 18, 2017.

         Ms. Scrivner filed applications for supplemental security income and disability insurance benefits on November 27, 2012, alleging disability beginning September 5, 2012. (Administrative Record “AR” 8). Ms. Scrivner claimed she was limited in her ability to work due to: stress, anxiety, depression, chronic pain, a heel spur, plantar fasciitis, and asthma. (AR 171). Ms. Scrivner later amended her alleged onset date to January 2013. (AR 235). Ms. Scrivner's applications were denied initially on March 7, 2013, and upon reconsideration on October 11, 2013. (AR 8). Ms. Scrivner requested a hearing before an Administrative Law Judge (“ALJ”), which was held on February 25, 2015, before ALJ James A. Burke. (AR 34). Ms. Scrivner testified at the hearing, and was represented by attorney Ione Gutierrez. (AR 36-43).

         On August 26, 2015, the ALJ issued his decision, finding Ms. Scrivner not disabled at any time between her alleged disability onset date through the date of the decision. (AR 18-19). Ms. Scrivner requested review by the Appeals Council, (AR 32), which was denied, (AR 1-3), making the ALJ's decision the Commissioner's final decision for purposes of this appeal.

         Ms. Scrivner, who is now represented by attorney Francesca MacDowell, argues in her Motion that the ALJ: (1) failed to properly weigh the medical opinions of Rosalie Davis, Ph.D., Kevin M. Henry, M.D., and Michael F. Gzaskow, M.D.; (2) erred in considering Mr. Scrivner's credibility; and (3) improperly applied the Medical Vocational Guidelines at step five. (Doc. 23 at 6-24). The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because the ALJ erred in his consideration of the opinions of Dr. Davis and Dr. Henry, the Court finds that Ms. Scrivner's Motion should be GRANTED.

         I. Standard of Review

         The 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) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). 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); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's “failure to apply the correct legal standards, or show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record 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). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” 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)).

         II. Applicable Law and Sequential Evaluation Process

         For purposes of supplemental security income and disability insurance benefits, a claimant establishes a disability when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920 (2012).

         At the first four steps of the SEP, the claimant bears the burden of showing: (1) she is not engaged in “substantial gainful activity”; (2) she 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 either (3) her impairment(s) either meet or equal one of the “Listings”[1] of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i- iv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation process. At step five the Commissioner must show 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. Grogan, 399 F.3d at 1261.

         III. Background

         Ms. Scrivner claimed she was limited in her ability to work due to: stress, anxiety, depression, chronic pain, a heel spur, plantar fasciitis, and asthma. (AR 171). At step one, the ALJ determined Ms. Scrivner had not engaged in substantial gainful activity since January 1, 2013, the alleged onset date. (AR 10). At step two, the ALJ found that Ms. Scrivner has the following severe impairments: fibromyalgia, osteoarthrosis/plantar fasciitis, and degenerative disc disease. (AR 11). At step three, the ALJ determined that none of Ms. Scrivner's impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 12-13).

         At step four, the ALJ found that Ms. Scrivner has the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), with the following limitations: she can lift and carry up to 20 pounds occasionally and 10 pounds frequently; she can sit for six hours in an eight-hour workday; she can stand and/or walk for two hours in an eight-hour workday; she can occasionally climb ramps, stairs, ladders, or scaffolds; and she can occasionally balance, stoop, kneel, crouch, and crawl. (AR 13).

         In formulating Ms. Scrivner's RFC, the ALJ stated that he considered Ms. Scrivner's symptoms and the extent to which those symptoms can reasonably be accepted as consistent with objective medical and other evidence, as required by 20 C.F.R. §§ 404.1529 and 416.929, and Social Security Rulings (“SSR”) 96-4p and 96-7p. Id. The ALJ also stated that he considered opinion evidence in accordance with the requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Id. The ALJ found that Ms. Scrivner's statements concerning the intensity, persistence and limiting effects of her symptoms are not entirely consistent with the evidence in the record. (AR 14).

         Turning to the medical evidence in the record, the ALJ gave great weight to the State Agency psychological consultants' opinions that Ms. Scrivner's mental impairments are non-severe. Id. The ALJ reasoned that their opinions are consistent with the medical evidence as a whole, and specifically with the findings of Dr. Gzaskow, and evidence that Ms. Scrivner's mental impairments are stable with medication. (AR 14-15). The ALJ also gave great weight to the State Agency medical ...


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