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Gabaldon v. Berryhill

United States District Court, D. New Mexico

April 6, 2018

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



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum [Doc. 22] (“Motion”), filed on October 16, 2017. The Commissioner responded on November 30, 2017. [Doc. 24]. Plaintiff replied on December 19, 2017. [Doc. 25]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 8]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) failed to provide an adequate reason for rejecting the opinion of the consultative examiner in favor of the opinions of the non-examiners. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (sentence four).

         Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] is supported by substantial evidence and whether the correct legal standards were applied. 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)). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. 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). 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.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. The 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. While a court may not re-weigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the [Commissioner]'s findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.” 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)).

         “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         In light of this definition for disability, a five-step sequential evaluation process has been established for evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) he is not engaged in “substantial gainful activity”; and (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 either (3) his impairment(s) either meet or equal one of the “Listings”[2] of presumptively disabling impairments; or (4) 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); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for supplemental security income and a period of disability and disability insurance benefits on September 15, 2010. Tr. 18. He alleged a disability-onset date of October 15, 2009. Id. His claim was denied initially and on reconsideration. Id. ALJ Peter M. Keltch held the first of two hearings on May 15, 2012, in Oklahoma City, Oklahoma. Tr. 36-80. Plaintiff appeared by video conference with his attorney. Id. (At the hearing, through his attorney, Plaintiff withdrew his request for a hearing on the denial of his SSI claim. In other words, he abandoned his SSI claim. Tr. 41.) Although ALJ Keltch held the hearing, ALJ Trace Baldwin entered the decision on March 7, 2013. Tr. 114-25. ALJ Baldwin reiterated that Plaintiff had withdrawn his request for a hearing on the denial of his SSI claim. Tr. 114, 120. ALJ Baldwin also denied the disability claim on the merits. Tr. 114-120. Plaintiff requested review of ALJ Baldwin's decision. As to the denial of disability benefits, the Appeals Council granted review, reversed ALJ Baldwin's decision, and remanded the disability claim for a new hearing, with certain specific instructions. Tr. 127-29. However, as to the SSI claim, the Appeals Council denied review. Tr. 130-31.

         ALJ Barry O'Melinn held the second hearing on September 14, 2015, in Albuquerque, New Mexico. Tr. 19, 81-102. Plaintiff and his attorney appeared by video conference from Santa Fe, New Mexico. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Sandra Trost. Id.

         ALJ O'Melinn issued his unfavorable decision on December 8, 2015. Tr. 28. He found that Plaintiff met the insured status requirements through June 30, 2013. Tr. 21. At step one he found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date, October 15, 2009. Id. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: diabetes mellitus, obesity, degenerative disc disease, and a disorder of his bilateral feet. Id. The ALJ found that Plaintiff's blurred vision was not a medically determinable impairment. Tr. 22. However, he found Plaintiff's anxiety, post-traumatic stress disorder, substance abuse, and alcohol abuse were medically determinable impairments but, considered singly and in combination, were not severe. Id. In making his findings regarding Plaintiff's mental impairments, the ALJ discussed the opinions of Dr. Steinman, Dr. Morse, and Dr. VanHoose. Id.

         Warren M. Steinman, Ph.D., performed the consultative psychological examination on January 19, 2011. Tr. 467. He diagnosed adjustment disorder with anxiety; rule out posttraumatic stress disorder (“PTSD”), chronic; and rule out cannabis dependence. Tr. 469. Dr. Steinman found Plaintiff to be “nervous and anxious.” Id. Dr. Steinman opined that Plaintiff “may be moderately limited in working with others. He is likely . . . markedly limited in his ability to take supervision. He is likely to have difficulty carrying out the tasks expected of him. He does not seem readily adaptable to change.” Id.

         Em Ward, M.D., Ph.D., performed the consultative physical examination on January 21, 2011. Tr. 461-64. She noted Plaintiff's complaints of paranoia and getting nervous around other, especially crowds. Tr. 461. He became “a little agitated or irritated during the history taking” and required redirection. Tr. 463. Dr. Ward also noted “a lack of attention initially, ” which resolved over the examination. Id. Finally, Dr. Ward's impressions included “multiple psychiatric diagnoses, ” which she “defer[red] to the mental health assessment regarding ability to function in a work environment.” Tr. 464.

         On January 31, 2011, Tracey Morse, Ph.D., reviewed the record, including Dr. Steinman's and Dr. Ward's reports. Tr. 488-500. Dr. Morse opined:

[Plaintiff] report[s] he is ind[ependent] with self-care, prep[aration of] meals, . . . use[s] public transport, shop[s], manage[s] funds, has some trouble getting along with others.
Claim of anxiety is credible per [medical evidence of record]. [Dr. Steinman] and [Dr. Ward] report anxious mood and some intermittent diff[iculties] with concentration. Both report irritability. However, at [Dr. Ward's examination, Plaintiff] was able to focus and improve his interpersonal skills with minor redirection. [Plaintiff] reports some inability to get along with others and diff[iculties] with concentration. [Plaintiff] reports otherwise adequate functioning. Mild impairments in social ...

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