United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for a Rehearing, With Supporting
Memorandum” (“Motion”), filed on April 10,
2017. ECF No. 16. The Commissioner responded on June 9, 2017.
ECF No. 18. Plaintiff replied on June 29, 2017. ECF No. 20.
Having meticulously reviewed the briefing and the entire
record, the Court finds 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 further reasons articulated below, the
Court will GRANT Plaintiff's Motion.
BACKGROUND AND PROCEDURAL HISTORY
was born on October 7, 1967, in California. Administrative R.
(“AR”) 307. She graduated high school and earned
an associate degree in business administration. AR 85.
Plaintiff then worked as a human resources director, and
shortly before filing for disability, also worked for a short
time as a housekeeper. AR 156.
filed applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on April 8, 2009 [AR 136, 143], alleging
disability beginning on January 15, 2009 [AR 143], due to
diabetic neuropathy. AR 155-56. The Social Security
Administration (“SSA”) denied Plaintiff's
application initially on June 15, 2009 [AR 67], and upon
reconsideration on June 15, 2010. AR 73. At her request,
Plaintiff received a de novo hearing before
Administrative Law Judge (“ALJ”) Donna Montano on
July 22, 2011, at which Plaintiff, her attorney at the time,
and vocational expert (“VE”) David Couch
appeared. AR 26-55. On January 25, 2012, the ALJ issued her
decision, finding that Plaintiff was not disabled within the
meaning of the Social Security Act (“the Act”).
AR 10-20. ALJ Montano further found that Plaintiff met the
insured status requirements of the Act only through March 31,
2011. AR 12. Plaintiff appealed to the SSA Appeals Council
(“Appeals Council”), but it declined review on
June 19, 2013. AR 1-4.
filed an appeal of ALJ Montano's decision in the U.S.
District Court on August 21, 2013. AR 543. On December 3,
2014, U.S. Magistrate Judge Stephan Vidmar reversed the
ALJ's decision, concluding that the ALJ erred by failing
to support her residual functional capacity
(“RFC”) assessment with substantial evidence. AR
549. Specifically, Judge Vidmar ordered remand of the
ALJ's decision based on her failure to incorporate
physical and mental limitations assessed by two separate
physicians. AR 549.
filed subsequent claims for DIB and SSI during the pendency
of her judicial appeal on August 19, 2013. AR 639, 645. Those
claims, like Plaintiff's previous claims, were denied
both at the initial stage and upon reconsideration. AR 574,
585. Plaintiff again sought a de novo hearing before
an ALJ on September 5, 2014. AR 578.
the successful resolution of her appeal in the U.S. District
Court and remand to the SSA, the Appeals Council consolidated
Plaintiff's subsequent claims with the earlier on
February 23, 2015. AR 553. The Appeals Council also vacated
ALJ Montano's decision and remanded Plaintiff's case
to a separate ALJ to “issue a new decision on the
consolidated claims.” AR 553.
April 5, 2016, ALJ Ann Farris held the second hearing in
Plaintiff's case, at which Plaintiff, her attorney
Michael Armstrong, and VE Karen Provine appeared. AR 443-81.
ALJ Farris issued a “partially favorable”
decision [AR 412] on May 13, 2016, finding that Plaintiff had
been disabled for purposes of the Act, but only since August
16, 2013 [AR 431], rather than January 15, 2009, as Plaintiff
alleged. AR 143, 416. To support her conclusion, ALJ Farris
conducted two parallel sequential evaluations of
Plaintiff's disability, one for the period prior to
August 16, 2013, and another for the period beginning on
August 16, 2013. AR 419-432.
the earlier period, ALJ Farris found that Plaintiff met none
of the Listings and maintained the RFC to do light work with
the following limitations:
[L]ift and/or carry 20 pounds occasionally and 10 pounds
frequently. She could stand and/or walk for six hours out of
an eight-hour workday, with normal breaks. She could sit for
six hours out of an eight-hour workday, with normal breaks.
She was unlimited with respect to pushing and/or pulling,
other than as indicated for lifting and/or carrying. She
could frequently bilaterally reach, handle and finger. She
could have no interaction with the general public.
AR 421. In contrast, ALJ Farris concluded that as of August
16, 2013, the medical evidence of record indicated that
Plaintiff's “alleged mental health impairments
worsened[, ] causing her to meet not only the requirements of
[L]isting 12.04, but the requirements of 12.06 as
well.” AR 429. ALJ Farris omitted any overt explanation
as to why she selected August 16, 2013, as the onset date of
Plaintiff's disability, but the record reflects that on
that date, one of Plaintiff's treating physicians, Dr.
Imran Raza, M.D., opined that Plaintiff suffered the
[M]arked limitations in ability to maintain attention and
concentration, to perform activities within a schedule, to
maintain regular attendance and be punctual, to maintain
physical effort for long periods without a need to decrease
activity or rest intermittently, to sustain an ordinary
routine without special supervision, to work in coordination
with others and to complete a normal workday and workweek
without interruptions from pain or fatigue.
AR 428 (citing AR 1319). Ultimately, based on Dr. Raza's
assessment and subsequent medical records, ALJ Farris reached
the following conclusions:
(1) Based on the application for a period of disability and
disability insurance benefits protectively filed on March 18,
2009, [Plaintiff] has been disabled under sections 216(i) and
223(d) of the Social Security Act beginning on August 16,
(2) Based on the application for supplemental security income
protectively filed on March 18, 2009, [Plaintiff] has been
disabled under section 1614(a)(3)(A) of the Social Security
Act beginning on August 16, 2013.
AR 432. Notably, ALJ Farris declared Plaintiff disabled for
purposes of DIB as of August 16, 2013, while having found -
as did ALJ Montano - that Plaintiff's last date of
insured status was March 31, 2011. AR 418.
gulf between these dates forms the core of the current
controversy. The SSA has directed that “[DIB] benefits
may be paid for as many as 12 months before the month an
application is filed, ” but they cannot be
paid unless the onset of disability occurs while the
claimant is still covered by DIB insurance. Social Security
Ruling (“SSR”) 83-20, 1983 WL 31249, at *1 (Aug.
20, 1980) (emphasis added). Thus, by declaring Plaintiff
disabled in 2013, but only insured through 2011, ALJ
Farris's opinion appeared to have precluded payment of
disagreed. For reasons never briefed by the parties, on July
25, 2016, an official within the SSA Office of Disability
Operations concluded that there was an error in ALJ
Farris's opinion and “return[ed] the
decision” to the Appeals Council for “any
action” it deemed necessary. AR 391. That same official
explained that “[o]n May 13, 2016, Administrative Law
Judge[ ] Ann Farris established a period of disability for
[Plaintiff] with an onset date of August 16, 2013; however,
[Plaintiff] does not meet insured status after March 31,
2011.” AR 391.
October 4, 2016, the Appeals Council notified Plaintiff it
had reopened ALJ Farris's decision for the purpose of
determining whether Plaintiff was “insured for cash
benefits as of August 16, 2013, the established date of onset
found by the [ALJ].” AR 384. In the same “Notice
of Appeals Council Action, ” the Appeals Council
directed Plaintiff to section 423 of the Act, which provides
in relevant part that an individual may be eligible for DIB
who: “(A) is insured for disability insurance benefits
(as determined under subsection (c)(1) of this section), (B)
has not attained retirement age . . ., (D) has filed
application for disability insurance benefits, and (E) is
under a disability (as defined in subsection (d) of this
section).” AR 635 (citing 42 U.S.C §
423(a)(1)(A)-(E) (2015)). The Appeals Council emphasized that
sections 423(a)(1)(A) through (D) “state[ ] that these
are conjunctive conditions that must be satisfied
simultaneously for the period of disability currently
claimed.” AR 635 (emphasis added). Or, stated plainly,
there can be no “period of disability” for DIB
purposes unless all statutory criteria are met, including
possession of DIB insurance. See SSR 83-20, 1983 WL
31249, at *1 (directing that a DIB worker “cannot be
found disabled under the Act unless insured status is also
met at a time when the evidence establishes the presence of a
disabling condition(s)”). Therefore, the Appeals
Council reasoned that Plaintiff was not disabled for DIB
purposes in August 2013 because she was not then insured by
DIB. Accordingly, the Appeals Council notified Plaintiff,
“we plan to make a decision finding that you are not
entitled to a period of disability or disability insurance
benefits because you are not insured for case benefits as of
August 16, 2013, the established date of onset found by the
[ALJ].” AR 635. On December 9, 2016, the Appeals
Council reversed ALJ Farris and found that “based on
the application protectively filed on March 18, 2009[, ]
[Plaintiff] is not entitled to a period of disability or
disability insurance benefits as defined under sections
216(i) and 223(d) of the Social Security Act.” AR 387.
This decision represented the final decision of the
Commissioner. 20 C.F.R. § 422.210(a) (2017).
filed an appeal with this Court on September 9, 2016, prior
to the Appeals Council assuming jurisdiction of the case on
remand. ECF No. 1.
advances two grounds for relief. First, she argues that ALJ
Farris failed to follow and apply SSR 83-20, which she
asserts required ALJ Farris “to determine whether
[Plaintiff's] mental impairments were already at a
disabling level of severity before August 2013.”
Pl.'s Mot. 16, ECF No. 16. Additionally, she contends
that ALJ Farris improperly failed to consider three separate
medical opinions as part of the RFC she devised for Plaintiff
from January 15, 2009, through August 15, 2013. Id.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. 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
the review of the ALJ's legal decisions, the Court
reviews “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).
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
Sequential Evaluation Process
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) (2016). 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'x 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 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 ...