United States District Court, D. New Mexico
DONNA C. GRAY, ex rel. her deceased son Edmund Thomas Kulesza, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR United States Magistrate Judge.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing or for Immediate Payment
of Benefits, with Supporting Memorandum [Doc. 17]
(“Motion”), filed on October 11, 2017. The
Commissioner responded on December 11, 2017. [Doc. 19].
Plaintiff replied on January 8, 2018. [Doc. 22]. 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 evidence of Mr. Kulesza's onset
date is ambiguous and, thus, remand is required to obtain the
testimony of a medical advisor to assist in inferring the
onset date. 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 in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008). 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). Courts
must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. 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.” Id. While a court
may not reweigh 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) (quoting
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
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
Law and Sequential Evaluation Process
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); 20 C.F.R.
considering a disability application, the Commissioner is
required to use a five step sequential evaluation process
(“SEP”). 20 C.F.R. § 404.1520; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (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 (3) his
impairment(s) either meet or equal one of the
Listings 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);
Grogan, 399 F.3d at 1261. If he cannot show that his
impairment meets or equals a Listing, but he proves that he
is unable to perform his “past relevant work, ”
the burden of proof then shifts to the Commissioner, at step
five, to show that the claimant is able to perform other work
in the national economy, considering his residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
procedural history of this case is complicated by the fact
that Mr. Kulesza filed more than one application for
disability benefits and by the fact that he has passed away.
Ultimately, the issue relevant to the appeal pending before
the Court is whether Mr. Kulesza was disabled between the
onset date alleged in his first application (April 22, 2009)
and his date last insured (December 31, 2010).
filed his first application for benefits (for a period of
disability, disability insurance benefits
(“DIB”), and supplemental security income
(“SSI”)) on August 12 and/or 17, 2009. Tr.
152-58. He alleged a disability-onset date of April 22, 2009.
Tr. 152, 156. His claims were denied initially, on
reconsideration, and by an administrative law judge
(“ALJ”). Tr. 76, 83, 20-28. The Appeals Council
denied review on May 31, 2013. Tr. 1-6. Shortly after the
Appeals Council denied review, on June 12, 2013, Kulesza
filed a second application for benefits (for SSI only).
See Tr. 379. That application was approved on August
2, 2013. See Tr. 307, 379. Kulesza was found
disabled as of June 1, 2013, and he began receiving SSI
benefits. See Tr. 379.
the same time as the filing of the second application, on
August 1, 2013, Kulesza filed his first civil action in this
Court, challenging the Commissioner's denial of the first
application. This Court reversed the denial of the first
application and remanded the case on February 25, 2015. Tr.
367-76; case number 13-cv-0710 SMV (D.N.M.). The Appeals
Council, on April 28, 2015, remanded the case to an ALJ for
further proceedings. Tr. 379-80. In its remand order, the
Appeals Council recognized the second application (for SSI
only), on which Kulesza had been found disabled as of June 1,
2013. Tr. 379. The Appeals Council, however, indicated that
the “period prior to June 1, 2013[, ] requires further
administrative proceedings.” Id.
Farris held the second hearing on May 10, 2016, in
Albuquerque, New Mexico. Tr. 307, 330-49. Kulesza
appeared in person with his attorney. Id. The ALJ
heard testimony from Kulesza ...