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Apachito v. Berryhill

United States District Court, D. New Mexico

July 30, 2018

CORNITA M. APACHITO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before me on Plaintiff's Motion to Reverse or Remand Administrative Agency Decision [Doc. 33] and Memorandum Brief in Support [Doc. 34] (“Motion”), filed on April 23, 2018. The Commissioner responded on June 7, 2018. [Doc. 36]. Plaintiff replied on July 17, 2018. [Doc. 37]. The Honorable Judith C. Herrera, United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 19]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that, considering the entire administrative record, the Administrative Law Judge's (“ALJ”) findings at step three are not supported by substantial evidence. Accordingly, I recommend that the Motion be granted and that the case 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 she 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. § 1382c(a)(3)(A); 20 C.F.R. § 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. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant has the burden to show that: (1) she is not engaged in “substantial gainful activity”; and (2) she 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) her impairment(s) either meet or equal one of the “Listings”[2] of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. § 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 her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for supplemental security income on November 8, 2012. Tr. 15. She alleged a disability-onset date of July 28, 2011. Id. Her claim was denied initially and on reconsideration. Id. ALJ Frederick Upshall, Jr., held the first of three hearings in Albuquerque, New Mexico, on June 25, 2014. Tr. 15, 35-46. Plaintiff appeared in person and pro se. Id. The hearing was continued to allow for the submission of missing medical records and to allow Plaintiff to find representation. Id. ALJ Upshall held the second hearing in Albuquerque on December 9, 2014. Tr. 15, 47-59. Plaintiff appeared in person with Ione Gutierrez, an attorney. Tr. 47. The second hearing, however, was also postponed to allow for the submission of missing medical records. Tr. 58-59. ALJ Upshall held the third and final hearing in Albuquerque on June 2, 2015. Tr. 15, 60-83. Plaintiff appeared in person with Zachary Green, an attorney. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”) Patricia McLaughlin. Id.

         The ALJ issued an unfavorable decision on September 15, 2015. Tr. 27. At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 2, 2012. Tr. 17. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: rheumatoid arthritis, diabetes mellitus, morbid obesity, osteoarthritis, degenerative joint disease, depression, and borderline intellectual functioning. Id.

         At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 17-21. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 21-25. The ALJ found that Plaintiff had

the [RFC] to perform light work as defined in 20 [C.F.R. ยง] 416.967(b) with the ability to lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand and/or walk for six hours out of an eight-hour workday with normal breaks; and sit for six hours out of an eight-hour workday with normal breaks. Pushing and pulling is limited by these exertional limitations. [Plaintiff] can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, stoop, crouch, kneel, and crawl. [Plaintiff] can frequently reach in all directions, including overhead, with the bilateral upper extremities. [Plaintiff] can perform frequent handling and fingering with the bilateral upper extremities. [Plaintiff] is limited to one- or two-step tasks in an environment free of fast-past [sic] production requirements involving only simple, work-related decisions ...

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