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Leyba v. Berryhill

United States District Court, D. New Mexico

February 1, 2018

TIMOTHY CHRIS LEYBA, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          KIRTAN KHALSA, United States Magistrate Judge.

THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 11) filed March 24, 2017, in support of Plaintiff Timothy Chris Leyba's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On June 22, 2017, Plaintiff filed his Motion to Reverse and Remand Administrative Agency Decision and Memorandum Brief in Support of Motion to Reverse and Remand (“Motion”). (Doc. 17.) The Commissioner filed a Response in opposition on August 21, 2017 (Doc. 20), and Plaintiff filed a Reply on August 30, 2017. (Doc. 22.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Timothy Chris Leyba (“Mr. Leyba”) alleges that he became disabled on December 1, 2007, at the age of thirty-seven because of right knee impairment, left shoulder [pain], and right hip [pain]. (Tr. 407, 414.[3]) Mr. Leyba completed the tenth grade in 1986, [4] and worked as a carpenter/framer, pizza maker, survey rodman, and service technician. (Tr. 225, 408, 418.) Mr. Leyba reported he stopped working on December 1, 2007, due to his medical conditions. (Tr. 407.)

         On August 23, 2010, Mr. Leyba protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 356-62, 433.) He also filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 350-55.) Mr. Leyba's applications were initially denied on January 1, 2011. (Tr. 150-51, 152, 179-83.) They were denied again at reconsideration on April 13, 2011. (Tr. 153-54, 155, 185-87, 188-91.) On June 18, 2011, Mr. Leyba requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 192.) ALJ Barbara Perkins conducted a hearing on October 18, 2012. (Tr. 113-149.) Mr. Leyba appeared in person at the hearing without representation. (Id.) When Mr. Leyba did not receive a decision from ALJ Perkins, the Administration scheduled a second hearing. (Tr. 231-39.) ALJ James Burke conducted a second hearing on August 20, 2013. (Tr. 105-12.) Mr. Leyba appeared in person without representation. (Id.) ALJ Burke encouraged Mr. Leyba to retain a lawyer and Mr. Leyba agreed to do so. (Tr. 111.) On August 28, 2013, Mr. Leyba retained Attorney Donald Vigil. (Tr. 247-48.) Pursuant to Mr. Vigil's request, the Administration scheduled a third hearing. (Tr. 255-61.) ALJ Myriam C. Rice conducted the third hearing on January 14, 2014. (Tr. 65-104.) Mr. Leyba appeared in person and was represented by Attorney Donald Vigil.[5] (Id.) The ALJ took testimony from Mr. Leyba (Tr. 64-87), and an impartial vocational expert (“VE”), Judith Beard (Tr. 87-99). On February 11, 2014, ALJ Rice issued an unfavorable decision. (Tr. 156-69.) On August 10, 2015, the Appeals Council issued an Order remanding the case to the ALJ because the jobs the ALJ identified at step five exceeded Mr. Leyba's manipulative limitations. (Tr. 176-78.) The ALJ was ordered, upon remand, to “give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations, ” and to obtain supplemental evidence from the VE to clarify the effect of the assessment limitations on the claimant's occupational base. (Id.) ALJ Rice conducted a fourth hearing on October 13, 2015. (Tr. 53-64.) Mr. Leyba failed to appear, although Attorney Vigil was present. (Id.) The ALJ took testimony from an impartial VE, Pamela Bowman. (Tr. 57-63.) The ALJ issued an Order to Show Cause for Failure to Appear and explained to Mr. Leyba that he had to demonstrate good cause if he wished to have a supplemental hearing before the ALJ. (Tr. 344-45.) On October 20, 2015, Mr. Leyba responded and explained that he was homeless and between friends' homes in Albuquerque and Colorado. (Tr. 349.) ALJ Rice did not find good cause to schedule a supplemental hearing and proceeded with her determination.[6](Tr. 36.) On January 28, 2016, ALJ Rice issued an unfavorable decision. (Tr. 33-46.) On September 6, 2016, the Appeals Council issued its decision denying Mr. Leyba's request for review and upholding the ALJ's final decision. (Tr. 1-5.) On November 8, 2016, Mr. Leyba timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if 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) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[7] If the claimant is engaged in substantial gainful activity, he is not disabled regardless of his medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, he is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform his “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [his physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ made his decision that Mr. Leyba was not disabled at step five of the sequential evaluation. (Tr. 44-45.) Specifically, the ALJ determined that Mr. Leyba met the insured status requirements of the Social Security Act through June 30, 2012, [8] and that Mr. Leyba had not engaged in substantial gainful activity since December 1, 2007. (Tr. 38.) She found that Mr. Leyba had severe impairments of chronic right knee ACL tear and chondromalacia, left clavicular fracture with malunion and left shoulder impingement. (Tr. 39.) The ALJ, however, determined that Mr. Leyba's impairments did not meet or equal in severity any of the listings described in Appendix 1 of the regulations. (Id.) As a result, the ALJ proceeded to step four and found that Mr. Leyba had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that

he is limited to never climbing ladders, ropes or scaffolds, occasional kneeling and crawling, and occasional overhead reaching with the left arm. He is further limited to jobs that can be performed while using a hand held assistive device for only uneven terrain or prolonged period of ambulation and must avoid concentrated exposure to extreme cold.

(Tr. 39-44.) The ALJ further concluded at step four that Mr. Leyba was unable to perform any past relevant work. (Tr. 44.) The ALJ determined at step five based on Mr. Leyba's age, education, work experience, RFC, and the testimony of the VE, that there were jobs existing in significant numbers in the national economy that Mr. Leyba could perform. (Tr. ...


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