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Benson v. Berryhill

United States District Court, D. New Mexico

January 18, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS 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.


         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Upon 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.

         On 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.

         As to 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 following limitations:

[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, 2013; and
(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.

         The 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).[1] Thus, by declaring Plaintiff disabled in 2013, but only insured through 2011, ALJ Farris's opinion appeared to have precluded payment of DIB benefits.

         The SSA 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.

         On 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).

         Plaintiff 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.[2]


         Plaintiff 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. at 21-23.


         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[3] 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.”)

         The 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 at 1214.

         As for 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).

         Ultimately, 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 at 760.

         B. Sequential Evaluation Process

         The SSA 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. ยงยง 404.1520(f), 416.920(f). If a claimant is not prevented from performing her past work, then she is not disabled. 20 ...

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