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Kuykendall v. Berryhill

United States District Court, D. New Mexico

March 22, 2018

TAMMY KUYKENDALL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion to Remand or Reverse Agency Decision, filed on June 5, 2017. ECF No. 18. Plaintiff also filed a “Brief In Support of Second Complaint Motion to Reverse or Remand” (“Motion”) on June 5, 2017.[1] ECF No. 19. The Commissioner responded on August 14, 2017. ECF No. 21. Plaintiff replied on August 28, 2017. ECF No. 23. Having meticulously reviewed the entire record and the parties' briefing, the Court finds that Plaintiff's Motion is not well taken and that the Administrative Law Judge's (“ALJ's”) ruling should be AFFIRMED. For the reasons articulated below, the Court will DENY Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff's background has been well documented through the previous Proposed Findings and Recommended Disposition (“PFRD”) issued by U.S. Magistrate Judge William P. Lynch. See PFRD, Jan. 26, 2015, at 993-1006, ECF No. 27, Civ. No. 13-877 MV/WPL.[2] In short, Plaintiff was born on September 29, 1961. Administrative R. (“AR”) 900. She earned her high school diploma and attended two years of college. AR 929, 993. Plaintiff previously worked as a school bus driver, with intermittent work for the U.S. Census Bureau as a crew leader and for H & R Block as a data entry clerk. AR 932, 993.

         Plaintiff first filed for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits on August 2, 2010. AR 19. For both applications, Plaintiff alleged onset of disability beginning May 28, 2008. AR 19. Both claims were denied initially and again upon reconsideration. AR 19. Plaintiff then requested a hearing, which was held before Administrative Law Judge (“ALJ”) Michael Harris. AR 19. Plaintiff testified and was represented by counsel. AR 19. Vocational expert (“VE”) Nicole B. King also testified. AR 19.

         On November 13, 2012, ALJ Harris issued his decision that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 27. Plaintiff then requested that the Social Security Administration's (“the SSA's”) Appeals Council (“AC”) review the ALJ's decision, which it declined to do. AR 1. Subsequently, Plaintiff sought judicial review of the decision, and Judge Lynch recommended that the case be remanded to the SSA because ALJ Harris “committed legal error in failing to consider and discuss the factors in determining the weight to assign to these three non-treating sources' opinions.” AR 1009. Judge Lynch also concluded that ALJ Harris “misstated the burden [of proof]” at step five. AR 1009. United States District Judge Martha Vazquez adopted Judge Lynch's PFRD and remanded the case to the SSA for proceedings consistent with the PFRD. AR 990. The AC then vacated ALJ Harris's decision and remanded the case “for further proceedings consistent with the order of the court.” AR 1013.

         The SSA's post-remand review was complicated somewhat because of a development that occurred while Plaintiff's original appeal was pending before Judge Vazquez: Plaintiff had filed a second application for DIB and SSI benefits on August 12, 2013. AR 1013. The second application was denied, but upon reconsideration, the SSA found that Plaintiff was disabled beginning November 14, 2012, the day after ALJ Harris's decision. AR 1013. Accordingly, in its remand instructions, the AC “neither affirm[ed] nor reopen[ed] the determinations on [Plaintiff's] subsequent applications, but instead direct[ed] the [ALJ] to evaluate [Plaintiff's] subsequent allowance pursuant to the reopening provisions set forth in 20 CFR 404.987-989, 416.1487-1489, HALLEX I-2-9-1, and HALLEX I-2-9-10.” AR 1013. The AC continued, “[i]f the Administrative Law Judge does not reopen the subsequent determinations, the favorable determinations will remain final and the issue of disability will be limited to the period prior to November 14, 2012.” AR 1013.

         Plaintiff received a new administrative hearing before ALJ B.D. Crutchfield on April 19, 2016. AR 885. Plaintiff testified and was represented by counsel, and VE Mary D. Weber also testified. AR 885. After the hearing, ALJ Crutchfield found that Plaintiff was not disabled within the meaning of the Act from May 28, 2008, through November 13, 2012. AR 901. Plaintiff then appealed the denial to this Court. ECF No. 1.[3]

         II. PLAINTIFF'S CLAIMS

         Plaintiff argues that the ALJ again misstated the burden of proof at step five. Pl.'s Mot. 16-17, ECF No. 19. She also asserts that the ALJ erred by failing to ask the VE whether her testimony was consistent with the Dictionary of Occupational Titles (“DOT”).[4] Id. at 17-19. Finally, Plaintiff contends that the ALJ erred by failing to consider evidence that arose after November 14, 2012. Id. at 21-22. Specifically, Plaintiff argues that the ALJ should have reviewed evidence from the second disability determination, since it concluded that Plaintiff was disabled beginning the day after the first ALJ's decision that Plaintiff was not disabled. Id.

         III. APPLICABLE LAW

         A. Standard of Review

         The Court's review of an ALJ's decision denying disability is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”). The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         As for review of an ALJ's legal decisions, the Court reviews “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Ultimately, if substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.

         B. Sequential Evaluation Process

         The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2016). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App'x 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's residual functional capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of her past relevant work to determine if the claimant is still capable of performing her past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).

         If the claimant cannot return to her past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).

         IV. ANALYSIS

         In this appeal, Plaintiff argues that the ALJ applied the law incorrectly. The Court is not persuaded. First, the ALJ accurately described the Commissioner's burden at step five. Second, the transcript of the administrative hearing reveals that, as the Commissioner points out, the ALJ asked the VE to advise her if her testimony conflicted with the DOT or was otherwise not addressed in the DOT. AR 940; see Def.'s Resp. 5, ECF No. 21. The ALJ therefore complied with the requirements of Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999) and the requirements of Social Security Ruling (“SSR”) ...


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