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Perea v. Berryhill

United States District Court, D. New Mexico

August 30, 2018

CARMEN RENEE PEREA, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE.

THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 14) filed October 10, 2017, in support of Plaintiff Carmen Renee Perea's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On December 22, 2017, Plaintiff filed her Motion to Remand or Reverse (“Motion”). (Doc. 21.) The Commissioner filed a Response in opposition on February 20, 2017 (Doc. 23), and Plaintiff filed a Reply on March 6, 2018. (Doc. 24.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Carmen Renee Perea (“Ms. Perea”) alleges that she became disabled on February 18, 2013, at the age of forty-six because of bipolar disorder, post-traumatic stress disorder, migraines, left hip injury, hypothyroidism, and seasonal allergies. (Tr. 227, 231.[3]) Ms. Perea completed the twelfth grade in 1985, and worked as a courthouse clerk and public works customer service representative. (Tr. 232.)

         On May 10, 2013, Ms. Perea protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 11, 227.) Ms. Perea's application was initially denied on July 23, 2013. (Tr. 69, 70-82, 101-04.) It was denied again at reconsideration on October 17, 2013. (Tr. 83-97, 98, 106-111.) On December 5, 2013, Ms. Perea requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 112.) On June 26, 2014, Ms. Perea filed for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 199-208.) The ALJ conducted a hearing on both the Title II and Title XVI applications on November 20, 2015. (Tr. 37-68.) Ms. Perea appeared in person at the hearing with non-attorney representative John Bishop.[4] (Id.) The ALJ took testimony from Ms. Perea (Tr. 41-63), and an impartial vocational expert (“VE”), Cassandra Humphries. (Tr. 63-67.) On January 29, 2016, ALJ Eric Weiss issued an unfavorable decision. (Tr. 8-21.) On March 17, 2017, the Appeals Council issued its decision denying Ms. Perea's request for review and upholding the ALJ's final decision. (Tr. 1-7.) On May 22, 2017, Ms. Perea timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if 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. § 423(d)(1)(A) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[5] If the claimant is engaged in substantial gainful activity, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         III. Analysis

         The ALJ made his decision that Ms. Perea was not disabled at step five of the sequential evaluation. Specifically, the ALJ found that Ms. Perea met the insured status requirements through December 31, 2018, and had not engaged in substantial gainful activity since her alleged onset date of February 18, 2013. (Tr. 13.) The ALJ determined that Ms. Perea had severe impairments of post-traumatic stress disorder, major depressive disorder, bipolar disorder, osteoarthritis of the pelvis, left hip degenerative tearing of the acetabular labrum, neuropathy of the bilateral lower extremities, lumbar degenerative joint disease at ¶ 4-5, degenerative facet changes at ¶ 4-5, right arm radial neuropathy, and type II diabetes mellitus. (Id.) He also found she had non-severe impairments of gastroesophageal reflux disease, hypothyroidism, obesity, migraine headaches, and biliary dyskinesia, status-post laparoscopic cholecystectomy. (Tr. 14.) The ALJ determined that Ms. Perea did not have an impairment or combinations of impairments that met or medically equal the severity of a listing. (Tr. 14-15.) Proceeding to step four, the ALJ found that Ms. Perea had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), except that

she is able to lift and carry 10 pounds occasionally and lift and carry less than 10 pounds frequently, but no push and pull with the lower left extremity. She is able to walk and stand for 2 hours per 8-hour workday and sit for 6 hours per 8-hour workday with normal breaks. She is able to occasionally climb ramps and stairs, but never ladders, ropes and scaffolds. She is able to occasionally balance, stoop, crouch, and kneel, but never crawl. She is able to frequently reach with her right dominant upper extremity. She must avoid more than occasional exposure to unprotected heights and moving machinery. She is able to understand, remember and carry out simple instructions and make commensurate work related decisions, and adjust to routine changes in work setting. She is able to interact occasionally with supervisors, co-workers and the public. She is able to maintain concentration, persistence and pace for 2 hours at a time during the workday with normal breaks.

(Tr. 16.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Perea was incapable of performing her past relevant work, but that there were jobs that existed in significant numbers in the national economy that the claimant could perform. (Tr. 19-21.) The ALJ, therefore, determined that Ms. Perea was not disabled. (Tr. 21.)

         In her Motion, Ms. Perea argues (1) that the ALJ failed to perform the requisite analysis under Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992) to determine that jobs existed in significant numbers in the national economy that Ms. Perea could perform; and (2) that the ALJ failed to resolve a conflict between the VE testimony and the DOT regarding Ms. Perea's limitation to simple instructions and simple work-related decisions and the reasoning three level jobs the VE identified. (Doc. 21 at 14-18.) The Court finds grounds for remand as discussed below.

         A. The ALJ Failed to Meet His Burden at Step Five That Jobs Existed in Significant Numbers in the National ...


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