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Anaya v. Berryhill

United States District Court, D. New Mexico

September 11, 2018

LUCIANO ALEXANDER ANAYA, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Luciano Alexander Anaya's Motion to Reverse and Remand to Agency for Rehearing, with Supporting Memorandum (Doc. 22), which was fully briefed on January 15, 2018. See Docs. 24, 25, 26. The parties consented to my entering final judgment in this case. Docs. 3, 7, 8. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to properly weigh the opinion of consultative psychological examiner Dr. Mark Simpson. I therefore GRANT Mr. Anaya's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

         The 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). “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 and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its 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. A 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 the 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 ALJ'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)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 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) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the Listings[1] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Mr. Anaya was born in 1995. AR 156.[2] Mr. Anaya filed an application for child's benefits on January 7, 2008, alleging disability beginning on September 29, 2000 due to autism, attention deficit hyperactivity disorder, speech delay, language delay, hypertension, diabetes, depression, anxiety, and chronic pain. AR 67. The Social Security Administration (“SSA”) awarded Mr. Anaya child's benefits as a dependent of his deceased father. AR 39, 67.[3] Entitlement to child's benefits ends the month before the month in which the claimant turns 18, unless the claimant is disabled or a full-time student. 20 C.F.R. § 404.352(b)(1). A claimant who is over the age of 18 who has a disability that began before the claimant became 22 is entitled to continue receiving child disability benefits. 20 C.F.R. § 404.350(a)(5). On July 15, 2013, SSA denied Mr. Anaya Childhood Disability Benefits for the period after he turned 18. AR 99-101. The SSA denied his claims on reconsideration on December 12, 2013. AR 106-08; Doc. 15-1 at 2 (table of contents, showing date of denial). Mr. Anaya requested a hearing before an ALJ. AR 109. On June 5, 2015, ALJ Barry O'Melinn held a hearing. AR 35-65.[4] ALJ O'Melinn issued his unfavorable decision on July 22, 2015. AR 12-34.

         The ALJ found that Mr. Anaya had not reached the age of 22 by September 9, 2000, the alleged onset date. AR 17. At step one, the ALJ found that Mr. Anaya had not engaged in substantial, gainful activity since his alleged onset date. Id. At step two, the ALJ found that Mr. Anaya suffered from the following severe impairments: obesity, obstructive sleep apnea, disorder of the muscle/ligament/fascia, attention deficit disorder (“ADD”), attention deficit hyperactivity disorder (“ADHD”), and affective disorder. Id. At step three, the ALJ found that none of Mr. Anaya's impairments, alone or in combination, met or medically equaled a Listing. AR 18-20. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Anaya's RFC. AR 20-27. The ALJ found Mr. Anaya had the RFC to

perform a range of light work as defined in 20 CFR 404.1567(b). However, he can never climb ladders, ropes, or scaffolds and must avoid concentrated exposure to extreme heat and cold. He can understand, remember, and carry out simple instructions and make commensurate work-related decisions, respond appropriately to supervision, coworkers, and work situations, 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 a normal workday.

AR 20.

         At step four, the ALJ concluded that Mr. Anaya did not have any past relevant work. AR 28. The ALJ found Mr. Anaya not disabled at step five because there are jobs that exist in the significant numbers in the national economy that he can perform, such as a cleaner and polisher of metal parts; a cleaner of hotels, motels, or casinos; and a bakery worker. AR 28-29. On September 22, 2015, Mr. Anaya requested review of the ALJ's unfavorable decision by the Appeals Council. AR 10-11. On March 28, 2017, the Appeals Council denied the request for review. AR 3-9. Mr. Anaya timely filed his appeal to this Court on May 17, 2017. Doc. 1.[5]

         IV. Mr. Anaya's Claims

         Mr. Anaya raises five arguments for reversing and remanding this case: (1) the ALJ failed to properly evaluate the opinion of consultative psychological examiner Dr. Mark Simpson; (2) the ALJ failed to properly evaluate the opinion of neuropsychological evaluator Dina Hill, Ph.D.; (3) the ALJ failed to properly evaluate the opinion of Ms. Sandra Cleveland, his high school special education math teacher; (4) the ALJ failed to properly evaluate his obesity; and (5) the ALJ failed to conduct a proper credibility analysis. Doc. 22 at 4-20.

         Because I remand based on the ALJ's failure to properly evaluate the opinion of consultative psychological examiner Dr. Mark Simpson, I do not address the other alleged errors, which “may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         V. Analysis

         Mr. Anaya argues that the ALJ erred by failing to state what weight he gave the opinion of consultative psychological examiner Dr. Mark Simpson. Doc. 22 at 6. He argues that this failure was harmful because Dr. Simpson's opinion was more restrictive than the RFC adopted by the ALJ. Id. The Commissioner argues that “to the extent that the ALJ did not explicitly state the weight he gave to Dr. Simpson's opinion, any oversight on the ALJ's part was harmless.” Doc. 24 at 12. For the reasons discussed below, I agree with Mr. Anaya.

         An ALJ “must explain in the decision the weight given to the opinions of a State agency . . . psychological consultant.” 20 C.F.R. § 404.1527(e)(2)(ii) (effective Aug. 24, 2012 through March 26, 2017); see also Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (internal citation omitted) (“It is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions.”). “A medical source's statement about what an individual can still do is medical opinion evidence that an adjudicator must consider . . . when assessing an individual's RFC.” SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996).[6] An ALJ must consider the following factors in deciding what weight to give a medical opinion:

1. Examining relationship: more weight is given to the opinion of a source who has examined the claimant than to one who has not;
2. Treatment relationship: more weight is given to the opinion of a source who has treated the claimant than to one who has not; more weight is given to the opinion of a source who has treated the claimant for a long time over several visits and who has ...

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