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Gray v. Berryhill

United States District Court, D. New Mexico

April 16, 2018

DONNA C. GRAY, ex rel. her deceased son Edmund Thomas Kulesza, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS 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

         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). 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).

         “Substantial 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. 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); 20 C.F.R. § 404.1505(a).

         When 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[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); 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 Background

         The 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).

         Kulesza 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.

         Around 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.

         ALJ Ann 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 ...


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