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Martinez v. Berryhill

United States District Court, D. New Mexico

February 27, 2018

GEORGE LEE MARTINEZ, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 16-1)[2] filed March 16, 2017, in connection with Plaintiff's Motion to Reverse and Remand for Payment of Benefits or in the Alternative, for Rehearing, With Supporting Memorandum filed June 15, 2017. (Doc. 21.) Defendant filed a Response on August 15, 2017. (Doc. 23.) And Plaintiff filed a Reply on August 29, 2017. (Doc. 24.) 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 that Plaintiff's motion is well taken and shall be GRANTED insofar as it seeks remand for rehearing.

         I. Background and Procedural Record

         Plaintiff George Lee Martinez, Jr. alleges that he became disabled on January 24, 2013, at the age of forty-three because of degenerative disc disease of the lumbar spine, seizure disorder, depression, anxiety, a cognitive disorder and post-traumatic stress disorder (PTSD). (Tr. 12, 58.) Mr. Martinez completed one year of college (Tr. 40) and worked for sixteen years, from 1993-2009, as a delivery driver for UPS. (Tr. 217.) His most recent job, as a part time delivery driver for a lumber company, ended in January or February 2013 because he had a seizure at work. (Tr. 32-33, 172.) Mr. Martinez has acquired sufficient quarters of coverage to remain insured through June 30, 2018. (Tr. 10.)

         On February 27, 2013, Mr. Martinez protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Section 401 et seq. (the Act). (Tr. 10, 138.) Mr. Martinez's application was denied at the initial level (Tr. 58-64), and at reconsideration (Tr. 66-78). Upon Plaintiff's request, Administrative Law Judge (ALJ) Barry O'Melinn held a video hearing on May 13, 2015. (Tr. 10.) Mr. Martinez appeared at the hearing with attorney representative Michelle Baca. (Tr. 10.) The ALJ took testimony from Mr. Martinez (Tr. 31-47), and from impartial vocational expert (VE), Mary Diane Weber (Tr. 47-53.) On August 18, 2015, ALJ O'Melinn issued a written decision concluding that Mr. Martinez was not “disabled” pursuant to the Act. (Tr. 20.) On October 12, 2016, the Appeals Council denied Mr. Martinez's request for review, rendering ALJ O'Mellin's August 18, 2015, decision the final decision of Defendant the Commissioner of the Social Security Administration. (Tr. 1-3.) Mr. Martinez timely filed a complaint on November 21, 2016, 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.”[3] 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). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(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); 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

         The Court reviews 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. 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). A decision is based on substantial evidence where it is supported by “relevant evidence [that] 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 if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). 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). Further, the 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). In undertaking its review, the Court may not “reweigh the evidence” or substitute its judgment for that of the agency. Langley, 373 F.3d at 1118.

         III. Analysis

         The ALJ made his decision that Mr. Martinez was not disabled at step five of the sequential evaluation. (Tr. 18-19.) The ALJ determined that Mr. Martinez met the insured status requirements of the Social Security Act through June 30, 2018 (Tr. 12), and that he had not engaged in substantial gainful activity since January 24, 2013, the alleged onset date. (Id.) He found that Mr. Martinez had severe impairments of degenerative disk disease of the lumbar spine, seizure disorder, depression, anxiety, a cognitive disorder and post-traumatic stress disorder (PTSD). (Id.) The ALJ determined, however, that Mr. Martinez's impairments did not meet or equal in severity one the listings described in the governing regulations, 20 CFR Part 404, Subpart P, Appendix 1. (Id.) Accordingly, the ALJ proceeded to step four and found that Mr. Martinez had the residual functional capacity to perform less than a full range of light work as defined in 20 C.F.R. Section 404.1567(b). The ALJ found that Mr. Martinez

can lift and carry 20 pounds occasionally, 10 pounds frequently, stand or walk for up to six hours, and sit for up to six hours of an eight-hour workday with normal breaks. He can operate hand and foot controls within a light duty capacity. He can frequently stoop and occasionally climb ramps or stairs. However, he can never climb ladders, ropes or scaffolds. He must avoid concentrated exposure to operational control of moving machinery, unprotected heights, and hazardous machinery. He can understand, carry out, and remember simple instructions and make commensurate work-related decisions, respond appropriately to supervision in work situations, deal with routine work changes in a work setting, maintain concentration, persistence, and pace for up to, and including, two hours at a time with normal breaks throughout a normal workday. Additionally, he should work primarily with things rather than people.

(Tr. 14.) The ALJ further concluded at step four that Mr. Martinez was unable to perform any past relevant work. (Tr. 18-19.) At step five, the ALJ determined based on his 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. Martinez could perform. (Tr. 18.) Based on the VE's testimony, the ALJ identified three jobs that Mr. Martinez could perform: mail clerk/sorter (DOT 209.687-026), routing clerk (DOT 222.687-022), and shipping and receiving (DOT 222.387-074). (Tr. 19.)

         In support of his Motion, Mr. Martinez argues that the ALJ's RFC determination is contrary to the substantial evidence in the record and contrary to the governing law because: (1) it did not accord with the opinions of the treating psychologist (Doc. 21 at 13-15); (2) it was premised, in part, on an inaccurate representation of a state consultative examiner who performed a neuropsychological evaluation of Mr. Martinez (Doc. 21 at 16-17); (3) as it pertained to Mr. Martinez's ability to walk, sit, and stand, it was not supported by medical evidence (Doc. 21 at 18-19); and (4) it was based on a flawed analysis of Mr. Martinez's credibility (Doc. 21 at 19-22). Additionally, Mr. Martinez argues that the ALJ erred in relying on the VE's testimony because (1) the VE's testimony was premised on the ALJ's flawed RFC determination (Doc. 21 at 22-23); and (2) the ALJ failed to resolve inconsistencies between Mr. Martinez's RFC (as determined by the ALJ) and the functioning required to perform the relevant jobs (Doc. 21 at 23-24).

         The Commissioner argues that the ALJ's RFC determination is supported by substantial evidence and that it “reasonably accounted for all of Mr. Martinez's credible limitations.” (Doc. 23 at 4.) As to the arguable conflicts between Mr. Martinez's functioning and the jobs identified by the VE, the Commissioner argues that even assuming that Mr. Martinez is incapable of performing the mail/clerk sorter job or the shipping and receiving job, because he is capable of performing the routing clerk job, the ALJ's step five conclusion is supported by substantial evidence. (Doc. 23 at 12.)

         As discussed more fully below, the Court concludes that the ALJ's evaluation of Mr. Martinez's mental RFC was premised, in part, on an inadequate legal and factual analysis of the treating psychologist's opinion. This error was not harmless, and the Court remands this matter for further proceedings. Accordingly, Mr. Martinez's additional arguments are not addressed.

         A. Relevant Psychological History From 2012 Through 2014

         The record contains documented evidence of Mr. Martinez's mental health difficulties dating back to June 29, 2012, on which date he was treated at the emergency room (ER) for the third time in a single week, for an “altered mental status.” (Tr. 281-82, 290, 320.) The ER admission notes from this visit indicate that Mr. Martinez's chief complaint was worsening confusion over the past two days and visual hallucinations. (Tr. 290.) Further, his “mental status” was in question because he believed, while he was in the ER, that he was at a golf course. (Tr. 295.) The treatment notes indicate that he was confused, hallucinating, dazed, experiencing rapid thoughts and rapid speech, insomnia, energy and ...


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