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Brawley v. Berryhill

United States District Court, D. New Mexico

March 2, 2018

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


          KIRTAN KHALSA United States Magistrate Judge

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 13-1)[2] filed February 1, 2017, in connection with the Motion to Reverse and Remand for a Rehearing with Supporting Memorandum filed May 15, 2017, by Plaintiff Starla Kay Brawley (Doc. 20.) In her Motion, Ms. Brawley seeks an order reversing the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (the SSA), to deny Ms. Brawley's claim for Title II disability and disability insurance benefits and her Title XVI application for supplemental security income. (Tr. 1, 13; Doc. 20 at 3.) The Commissioner filed a Response in opposition on July 14, 2017. (Doc. 22.) Ms. Brawley filed a Reply on July 17, 2017. (Doc. 23.) 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 shall be GRANTED.

         I. Background and Procedural Record

         Ms. Brawley filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income in March of 2013. (Tr. 213.) In that application, Ms. Brawley claimed that she became disabled in October 2007, at age 49, due to post-traumatic stress disorder (PTSD), anxiety, high blood pressure, insomnia, and thyroid problems, which conditions limited her ability to work. (Tr. 25, 247, 251.) Ms. Brawley met the insured status requirements of the SSA through March 31, 2011, and she has not engaged in substantial gainful activity since October 1, 2007. (Tr. 15.) In May of 2013, the SSA denied Ms. Brawley's claim for benefits on the ground that she was not disabled. (Tr. 142.) Upon Ms. Brawley's request for a review, the May 2013 decision was upheld. (Tr. 151.) Disagreeing with SSA's determination, Ms. Brawley requested a hearing before an Administrative Law Judge (ALJ). (Tr. 158-59.) On December 19, 2014, ALJ Eric Weiss held a hearing at which Ms. Brawley was represented by her counsel, Michael Armstrong. (Tr. 34.) Ms. Brawley and Mary Diane Weber, an impartial vocational expert, testified at the hearing. (Doc. 20 at 3; Tr. 36, 64.)

         In regard to her employment history, Ms. Brawley testified that in 2001 she was terminated from her job as a deli associate at Walmart. (Tr. 41-45.) Beginning in 2006 she worked for two companies-one as an electronic technician on an assembly line (a job that she quit upon losing her temper), and another at which she began as a solar technician before being promoted to quality control (a job from which she was fired after she “got into it” with her foreman). (Tr. 53-57.) Ms. Brawley testified, further, that in 2008 she worked, through a temp agency, as a housekeeper for approximately one week-a job for which she was not called back. (Tr. 41-42.)

         As to each of the foregoing jobs, ALJ Weiss queried Ms. Weber whether they could be performed by a

hypothetical individual who is able to perform the full range of exertional work as defined by the regulations, [but who] may never climb ropes or scaffolds, and . . . must avoid more than occasional exposure to workplace hazards, such as moving machinery and unprotected heights[;who] is limited to simple routine and repetitive tasks and to simple work-related decisions[; and who]. . . may have only occasional interaction with the public, coworkers and supervisors.

Tr. 69.) Ms. Weber testified that they could not. (Id.) However, in response to ALJ Weiss's further query, Ms. Weber testified that the so-described “hypothetical individual” should be able to work as a hand packager inspector, as a housekeeper in a motel or hotel, or as a dishwasher/kitchen helper. (Tr. 70.) Were this hypothetical person to be further limited to no contact with the public, such person could, in Ms. Weber's estimation, work as a hand packager inspector or a dishwasher. (Tr. 71-72.)

         Thereafter, ALJ Weiss issued a notice of decision that was “unfavorable” to Ms. Brawley's application for benefits. (Tr. 10, 15.) The Appeals Council denied Ms. Brawley's request for review of that decision. (Tr. 1.)

         Ms. Brawley claims that ALJ Weiss committed reversible error by: (1) improperly rejecting the medical opinion of her treating psychiatrist; (2) improperly rejecting findings of two state agency psychiatric consultants; and (3) failing to include a function-by-function assessment of her work-related mental abilities in his analysis of her residual functional capacity. (Doc. 20 at 2.) With regard to Ms. Brawley's first argument, the Court concludes that the ALJ erred in his evaluation of the treating physician opinions and that this error was not harmless. Because remand is necessary, the Court will not issue a decision with respect to Ms. Brawley's remaining arguments.

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if she 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, she is not disabled regardless of her 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, she 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 her “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 [her 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 her 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 ...

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