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Chavez v. Berryhill

United States District Court, D. New Mexico

March 8, 2018

KIMBERLY S. CHAVEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER GRANTING MOTION TO REMAND AND REMANDING MATTER TO AGENCY FOR ADDITIONAL PROCEEDINGS

          KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Kimberly Chavez seeks review of the Social Security Administration's denial of her application for disability insurance benefits.[1] See 42 U.S.C. § 423. With the consent of the parties to conduct dispositive proceedings, see 28 U.S.C. § 636(c), the Court has reviewed the administrative record and considered Chavez's motion to remand and supporting memorandum, the agency's response in opposition, and Chavez' reply. (See Docs. 25, 26, & 29). Having done so, the Court concludes that the Administrate Law Judge (“ALJ”) committed reversible error in evaluating whether Chavez's intellectual impairment meets or equals Listing 12.05C and Chavez is, as a result, per se disabled under the Social Security Act. Accordingly, the Court GRANTS Chavez's motion and REMANDS the matter for additional proceedings.

         I. BACKGROUND

         Chavez alleged disability as of August 5, 2011 at age 27 arising from her intellectual functioning and continuing until December 31, 2016, the date she last qualified for benefits. (AR 13; 15). Following a hearing, ALJ Barry O'Melinn denied Chavez's application for benefits. (AR 13-22). At step three of the five-part framework[2] used to evaluate disability, the ALJ concluded that Chavez's borderline intellectual functioning, although a severe impairment, did not meet or equal Listing 12.05C. (AR 17). A finding that this impairment satisfied Listing12.05C would have required an award of benefits for an “intellectual disorder.” (Id.); 20 C.F.R. part 404, subpt P, app. 1, § 12.05. At step four, the ALJ determined that Chavez retained the residual functional capacity (“RFC”) to perform her past work as a cook's helper. (AR 21). Since Chavez was capable of performing this job, the ALJ did not proceed to step five of the sequential process. (AR 21-22). The ALJ's adverse determination became the agency's final action when the Appeals Council denied review on November 9, 2016. (AR 1-7).

         II. STANDARD OF REVIEW

         This Court reviews the ALJ's decision to determine whether it is supported by substantial evidence and the ALJ applied the correct legal standards. See Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). If substantial evidence supports the conclusion that the plaintiff is not disabled and the ALJ followed the law, the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term “substantial evidence” means that which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 1118 (citation and internal quotation marks omitted). Even if the Court could reach the opposite conclusion, the decision must stand if the record as a whole is not “overwhelmed by other evidence” to the contrary or unless a “mere scintilla” supports it. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).

         III. ANALYSIS

         Chavez makes three arguments in support of remand: (1) the ALJ erred at step three in concluding that Chavez's intellectual functioning did not meet or equal Listing 12.05C; (2) the ALJ improperly evaluated the opinions of consulting psychologist, Mary Loescher, Ph.D., and the state agency doctors in fashioning Chavez's RFC; and (3) the ALJ's RFC errors improperly tainted the testimony of the vocational expert during the administrative hearing. Because the Court concludes that the ALJ employed the incorrect legal standard in evaluating whether Chavez satisfied Listing 12.05C and will have to reexamine Dr. Loescher's opinion on remand in connection with performing the correct analysis, the Court does not reach Chavez's other assignments of error.

         A. Step-Three Determination

         Listing 12.05C mandates a finding of disability where the plaintiff proves “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C. To qualify, Chavez must prove not only that her intellectual impairment “me[t] all of the specified medical criteria, ” but that she also displayed “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested . . . before age 22” as encompassed in Listing 12.05's so-called capsule definition. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009). “An impairment that manifests only some of [the Listing's] criteria, no matter how severely, does not qualify.” Id. In determining whether a plaintiff satisfies a Listing, the ALJ may consider only medical evidence. See 20 C.F.R. § 404.1526(b). Moreover, the ALJ must “set out specific findings and . . . reasons for accepting or rejecting evidence at step 3.” Clifton v. Charter, 79 F.3d 1007, 1009 (10th Cir. 1996). Here, the parties do not dispute that Chavez's full-scale IQ score falls within the range. Thus, the dispute focuses on whether Chavez satisfied the capsule definition and proved she suffered from a qualifying “other mental health impairment” in addition to her low quotient score.

         1. Capsule definition

         The Commissioner argues that “[s]ubstantial evidence supports a finding that [Chavez] did not have significantly subaverage general intellectual functioning with deficits in adaptive functionally initially before 22, as required by the listing.” (Doc. 26, p. 6) This contention lacks merit for a simple reason. The ALJ did not make any findings as to the capsule definition at all, which means the Court cannot undertake the substantial-evidence inquiry or otherwise analyze the issue in the first place. See Havenar v. Astrue, 438 Fed.Appx. 696, 699 (10th Cir. 2011) (explaining that the “ALJ never made any findings regarding the capsule definition, and it would be beyond the scope of appellate review to make such a finding in the first instance”) (citing Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007)). For the Court to consider the merits of the Government's argument would require the Court to create “an impermissible post-hoc justification for the ALJ's deficient explanation.” Id. Because the ALJ did not hold Chavez to the capsule definition, the Court declines to do so for the first time on appeal.

         2. Other ...


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