Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

King v. Berryhill

United States District Court, D. New Mexico

February 12, 2018

JAMES MICHAEL KING, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing, with Supporting Memorandum (Doc. 21) filed on June 2, 2017. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 4, 7, 8. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is not well-taken and will be denied.

         I. Procedural History

         This is Plaintiff's second appeal. Mr. James King (Plaintiff) protectively filed applications with the Social Security Administration for Disability Insurance Benefits (DIB) under Title II of the Social Security Act on October 6, 2009, and for Supplemental Security Income (SSI) under Title XVI of the Social Security Act on October 21, 2009. Administrative Record[2] (AR) at 57, 122-26. Plaintiff alleged a disability onset date of July 15, 2009. AR at 122, 124. Because Plaintiff's earning record showed that he had “sufficient quarters of coverage to remain insured through June 30, 2011[, ]” Plaintiff was required to “establish disability on or before that date in order to be entitled to a period of disability and [DIB].” AR at 612.

         Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 57-59) and on reconsideration (AR at 70-76). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of his applications. AR at 77-79. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 29-56. ALJ Ann Farris issued an unfavorable decision on April 25, 2012. AR at 8-28. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 6-7), which the Council denied on June 6, 2013 (AR at 1-5). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         Plaintiff appealed ALJ Farris's decision to this Court. See King v. Colvin, CV 13-0730 JCH/RHS, Compl. (D.N.M. Aug. 8, 2013). The Commissioner filed an Agreed Motion to Reverse and Remand for Further Administrative Proceedings on July 21, 2014, and moved the Court to reverse and remand for the ALJ to “properly evaluate the severity of Plaintiff's alleged impairments . . . .” See King, CV 13-0730, Agreed Mtn to Reverse & Remand (D.N.M. July 21, 2014). The Honorable Judith C. Herrera reversed and remanded the case “for further administrative action pursuant to sentence four (4) of § 205(g) of the Social Security Act, 42 U.S.C. § 405(g)[, ]” on August 1, 2014. See King, CV 13-0730, Order (D.N.M. Aug. 1, 2014) (citation omitted).

         On May 5, 2016, ALJ Ann Farris held a second de novo hearing. AR at 634-90. ALJ Farris then issued a partially favorable decision on June 20, 2016, finding that Plaintiff was not disabled before April 19, 2016, but was disabled thereafter.[3] AR at 634-90. There is no evidence that Plaintiff asked the Appeals Council to review ALJ Farris's decision, so the ALJ's decision became the final decision of the Commissioner 60 days after June 20, 2016. See AR at 502. Plaintiff then filed a suit in this Court seeking remand for a rehearing. Doc. 1.

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits must establish that 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process 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 (3) his impairment(s) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), he is unable to perform his past relevant work. 20 C.F.R §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of [his] medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at Step Five to show that” the claimant retains sufficient RFC “to perform work in the national economy, given his age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         At Step One of the process, [4] ALJ Farris found that Plaintiff “has not engaged in substantial gainful activity since the alleged onset date.” AR at 615 (citing 20 C.F.R. §§ 404.1571-1576, 416.971-976). At Step Two, the ALJ concluded that “[s]ince the alleged onset date of disability, July 15, 2009, [Plaintiff] has had the following severe impairments: status post fusion L4-S1, status post knee replacement, varicose veins, dysthymia, cluster B personality traits, post-traumatic stress disorder (‘PTSD'), and schizophrenia which was severe by the established onset date.” AR at 615 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).

         At Step Three, the ALJ found that since Plaintiff's “alleged onset date of disability, July 15, 2009, [Plaintiff] has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 615 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). At Step Four, the ALJ found that while Plaintiff's “medically determinable impairments might be expected to cause some of the alleged symptoms[, ]” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms . . . [were not] fully supported . . . .” AR at 619. The ALJ considered the evidence of record, including records from Keith Harvie, D.O., Mark Erasmus, M.D., William Wagner, M.D., E.B. Hall, M.D., Pamela Black, M.D., Saverio Sava, M.D., Kurt Johnson, M.D., consultative examinations with Steven Baum, Ph.D., (one in 2010, a second in 2016), and testimony from Plaintiff and his ex-wife, Nuran King. AR at 615-20.

         ALJ Farris found that “[s]ince July 15, 2009, [Plaintiff] has been unable to perform any past relevant work.” AR at 620 (citing 20 C.F.R. §§ 404.1565, 416.965). Ultimately, the ALJ found that prior to April 19, 2016, Plaintiff

[had] the [RFC] to perform light work (lift 20 pounds occasionally, stand/walk six hours in an eight-hour workday and sit six hours in an eight-hour workday) as defined in 20 CFR 404.1567(b) and 416.967(b) except he must be able to alternate between sitting and standing hourly. [He] cannot kneel, crouch or crawl, but he can occasionally climb, balance and stoop. He must avoid extreme cold and environmental hazards and can have occasional interaction with the public.

         AR at 616. The ALJ found that beginning on April 19, 2016, Plaintiff's “age category changed, . . . [and] there are no jobs that exist in significant numbers in the national economy that [Plaintiff] could perform.” AR at 621 (citing 20 C.F.R. §§ 404.1560(c), 404.1566, 416.920(c), and 416.966).

         In order to determine Plaintiff's ability to perform work prior to April 19, 2016, ALJ Farris “asked the vocational expert whether jobs exist in the national economy for an individual with [Plaintiff's] age, education, work experience, and” RFC. AR at 621. The VE testified that an individual with Plaintiff's RFC would be able to perform occupations such as mail clerk and document preparer. AR at 621. ALJ Farris noted that the VE's “testimony is inconsistent with the information contained in the Dictionary of Occupational Titles, ” (DOT) but “there is a reasonable explanation for the discrepancy. The [DOT] does not address sit/stand options, in which case we have relied upon the [VE's] personal observations and expertise.” AR at 621. The ALJ found that prior to April 19, 2016, Plaintiff “was capable of making a successful adjustment to other work that existed in significant numbers in the national economy[, ]” and “a finding of ‘not disabled'” was appropriate. AR at 621. Beginning on April 19, 2016, “there are no jobs that exist in significant numbers in the national economy that [Plaintiff] could perform[, ]” and he was disabled as of that date.[5] AR at 621.

         III. Legal Standard

         The Court must “review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. Discussion

         A. The ALJ adequately explained the standing/walking limitation in Plaintiff's RFC.

         Plaintiff asserts that the ALJ's decision is deficient because it does not include a function-by-function analysis of Plaintiff's abilities in the areas of standing and walking. Doc. 21 at 17. Plaintiff contends that the ALJ's restrictions on Plaintiff's ability to stand/walk “is more in line with the performance of sedentary work, which requires only an ability to stand/walk for ‘2 hours during an 8-hour workday.'” Id. (quoting SSR 96-9p, 1996 WL 374185, at *6 (July 2, 1996)). Essentially, Plaintiff believes that ALJ Farris's RFC assessment is internally inconsistent. The Court disagrees.

         ALJ Farris found that prior to April 19, 2016, Plaintiff could perform a range of light work, which would require him to “lift 20 pounds occasionally, stand/walk six hours in an eight-hour workday and sit six hours in an eight-hour workday . . . except he must be able to alternate between sitting and standing hourly.” AR at 616. Plaintiff argues that “[i]n practical terms ALJ Farris's physical RFC limits [Plaintiff] to standing/walking for 4 hours and sitting for 4 hours in an 8-hour workday. However, the definition of light work requires that a claimant be able to stand or walk ‘off and on, for a total of approximately 6 hours of an 8-hour workday.'” Doc. 21 at 17 (quoting SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983)). The plaintiff in Reed v. Astrue, Civ. No. 09-1395-JWL, 2011 WL 578740 (D. Kan. Feb. 9, 2011), made a similar argument to no avail. 2011 WL 578740, at *3-*4. There, the ALJ noted that the plaintiff “would need to alternate sitting and standing every 30 minutes.” Id. at *3 (emphasis and quotations omitted). The plaintiff argued, “[s]imple arithmetic shows that plaintiff, with the ‘need to alternate sitting and standing every 30 minutes, ' . . . would only be on his feet half of any 8-hour workday. This alternation puts plaintiff in sedentary [work], and not light [work], under the regulations.” Id. (quotation omitted).

         The Reed court found that the “[p]laintiff's argument misunderstands the requirements of light work.” Id. “Work is classified by physical exertion requirements: sedentary, light, medium, heavy, or very heavy; and the category is determined based upon the amount of physical exertion required in lifting, carrying, pushing, or pulling.” Id. (citing 20 C.F.R. §§ 404.1567, 416.967).

The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing - the primary difference between sedentary and most light jobs. A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work.

Id. at 4 (quoting SSR 83-10, 1983 WL 31251, at *5; citing 20 C.F.R. §§ 404.1567(b), 416.967(b) (defining “light work”)). “Although light work usually involves frequent standing and walking, it may involve sitting most of the time as described in the underlined portion of the quotation from SSR 83-10 above.” Id. (citing SSR 83-10, 1983 WL 31251, at *5). “To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” Id. (quoting 20 C.F.R. §§ 404.1567(b), 416.967(b)). “Therefore, the full range of light work is usually described as work requiring the ability to sit, and stand and/or walk about six hours each in an eight-hour workday.” Id. (citing 20 C.F.R. §§ 404.1567, 416.967; SSR 83-10, 1983 WL 31251, at *5-*6).

Applying these regulations, when a job requires up to twenty pounds of exertion occasionally, and up to ten pounds of exertion frequently, it will be classified as “light work” even if it does not require standing and/or walking as much as six hours in a workday, or even if it requires sitting more than two hours up to about six hours in a workday. As Plaintiff argues, simple arithmetic shows that because Plaintiff must alternate sitting and standing every thirty minutes, he must work at a job that requires or allows sitting and standing at thirty minute intervals, each for half of an eight-hour workday. This fact does not transform the job from “light work” to “sedentary work” - the physical exertion requirements determine the classification of the work.

Id.

         It is only the full range of light work that requires standing or walking for approximately 6 hours in an 8-hour workday. The ALJ did not find Plaintiff capable of a full range of light work - Plaintiff has certain restrictions, and thus may only perform a narrower range of light work. See Id. “The ALJ's statement defines the limits of ‘light work' in general, and the requirement to alternate sitting and standing every [hour] sets the parameters for specific work of which Plaintiff is capable.” Id.

         Importantly, ALJ Farris included these precise limitations in her hypothetical to the VE: “So then assuming a person of the same age, education, and work history as the claimant. Is limited to light work. But must be able to alternate between sitting and standing approximately hourly.” AR at 686. The VE replied that Plaintiff could perform the positions of mail clerk and document preparer. AR at 687. “Therefore, both the regulations and the vocational expert testimony support the ALJ's finding that Plaintiff has the RFC for a range of light work.” See Reed, 2011 WL 578740, at *5.

         “The court finds no internal inconsistency in the RFC assessed, and therefore, no error in the ALJ's classification of an RFC for a range of light work.” See Id. For this reason, Plaintiff's further argument, that because he was “an individual ‘closely approaching advanced age' for the purposes the Administration's Medical-Vocational Guidelines[, ]” a limitation to sedentary work “would dictate a finding of ‘disabled[, ]'” is unavailing. See Reed, 2011 WL 578740, at *5; se ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.