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Griego Medina v. Berryhill

United States District Court, D. New Mexico

September 18, 2018

DIANE L. GRIEGO MEDINA, 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 or Remand [Doc. 15] (“Motion”), filed on April 15, 2018. The Commissioner responded on June 19, 2018. [Doc. 22]. Plaintiff replied on August 26, 2018. [Doc. 24]. The parties have consented to my entering final judgment in this case. [Doc. 18]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Appeals Council erred in failing to consider the opinion of Mitchell Binder, M.D. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (2018) (sentence four).

         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). 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. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004)).

         “[F]ailure 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) (quoting Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984)).

         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. § 423(d)(1)(A) (2015); 20 C.F.R. § 404.1505(a) (2012).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520 (2012); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (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 (3) her impairment(s) either meet or equal one of the Listings[1] of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If she cannot show that her impairment meets or equals a Listing, but she proves that she is unable to perform her “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 her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for a period of disability and disability insurance benefits on February 28, 2014. Tr. 12. She alleged a disability-onset date of August 20, 2011. Id. Her claim was denied initially and on reconsideration. Id. ALJ James Bentley held a hearing on November 3, 2016, in McAlester, Oklahoma. Tr. 12, 36-73. Plaintiff appeared with her non-attorney representative by videoconference from Albuquerque, New Mexico. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Meslissa Brassfield. Id.

         The ALJ issued his unfavorable decision on November 30, 2016. Tr. 25. The ALJ found that Plaintiff met the insured status requirements through December 31, 2016. Tr. 14. At step one he found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Id. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: anxiety disorder not otherwise specified (“NOS”), rule out generalized anxiety, rule out panic disorder, adjustment disorder with mixed anxiety and depressed mood, obesity, lumbago, and vertigo. Id.

         At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 15-18. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 18-23. The ALJ found that Plaintiff had “the [RFC] to perform medium work as defined in 20 [C.F.R. §] 404.1567(c). She is capable of remembering, understanding, and completing simple tasks with routine supervision and would need to avoid unprotected heights and dangerous moving machinery due to occasional episodes of vertigo.” Tr. 18.

         At step four the ALJ found that Plaintiff was not able to return to her past relevant work. Tr. 23. Accordingly, the ALJ went on to consider Plaintiff's RFC, age, education, work experience, and the testimony of the VE at step five. Tr. 23-24. He found that Plaintiff could perform work that exists in significant numbers in the national economy and, therefore, was not disabled. Id. Plaintiff requested review from the Appeals Council, but that ...


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