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Johnson v. Berryhill

United States District Court, D. New Mexico

June 5, 2018

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


         THIS MATTER is before the Court on Plaintiff's Motion to Reverse or Remand Administrative Agecny [sic] Decision (Doc. 22) filed on October 30, 2017. Having considered the record, submissions of counsel, and relevant law, the Court recommends that Plaintiff's motion be DENIED.[1]

I. Procedural History

         On September 12, 2013, Mr. Scott Johnson (Plaintiff) protectively filed an application with the Social Security Administration for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. See Administrative Record[2] (AR) at 13, 57. Plaintiff alleged a disability onset date of January 1, 2008, but later amended his alleged onset date to September 12, 2013. See AR at 135, 145. Disability Determination Services (DDS) determined that Plaintiff was not disabled both initially (AR at 57-66) and on reconsideration (AR at 67-76). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of his SSI application. AR at 90.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 29-56. ALJ Barry O'Melinn issued an unfavorable decision on March 8, 2016. AR at 10-28. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 9), which the council denied on March 7, 2017 (AR at 1-5). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits 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); see also 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) he is not engaged in “substantial gainful activity”; (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) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), he is unable to perform his past relevant work. 20 C.F.R § 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of [his] medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20 C.F.R. § 416.945(a)(1). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient . . . RFC to perform work in the national economy, given his age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. § 416.920(a)(4)(v).

         At Step One of the process, ALJ O'Melinn found that Plaintiff “has not engaged in substantial gainful activity since September 12, 2013, the application date.” AR at 15 (citing 20 C.F.R. §§ 416.971-.976). At Step Two, the ALJ concluded that Plaintiff “has the following severe impairments: scoliosis of the spine and history of Wilms' tumor.” AR at 15 (citing 20 C.F.R. § 416.920(c)). The ALJ found the following impairments are non-severe: hypertension, fatigue, depression, and anxiety. AR at 15-18.

         At Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 . . . .” AR at 18 (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926). At Step Four, the ALJ thoroughly considered the evidence of record and found that Plaintiff

has the residual functional capacity to perform medium work as defined in 20 [C.F.R. §] 416.967(c)[, ] except [he] can understand, carry out, and remember simple instructions and make commensurate work related decisions, and respond appropriately to supervision, coworkers and work situations. [Plaintiff] can deal with routine changes in work setting, maintain concentration[, ] persistence and pace for up to and including two hours at a time with normal breaks throughout the workday and is suitable for jobs involving work primarily with things and not people.

AR at 18-19.

         ALJ O'Melinn concluded that Plaintiff has no past relevant work (AR at 21 (citing 20 C.F.R. § 416.965)), but he is able to perform work as a Cleaner (Hospital Setting), Dining Room Attendant/Busser, and Hand Packager. AR at 22. The ALJ ultimately determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, since September 12, 2013 . . . .” AR at 23 (citing 20 C.F.R. § 416.920(g)).

         III. Legal Standard

         The Court must “review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. ...

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