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Alderete v. Berryhill

United States District Court, D. New Mexico

September 27, 2018

YOLANDA ALDERETE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Yolanda Alderete's Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (the “Motion”), (Doc. 18), filed May 14, 2018; Defendant Commissioner Nancy A. Berryhill's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the “Response”), (Doc. 21), filed July 13, 2018; and Ms. Alderete's Reply in Support of Plaintiff's Motion to Reverse and Remand for a Rehearing (the “Reply”), (Doc. 22), filed July 27, 2018.

         Ms. Alderete filed an application for disability insurance benefits on September 17, 2013, alleging disability beginning September 10, 2010. (Administrative Record “AR” 51). Ms. Alderete claimed she was limited in her ability to work due to diabetes type 2, neuropathy in her feet, vision issues, a broken collarbone, arthritis in her shoulder, and issues with her range of motion. (AR 188). Ms. Alderete's application was denied initially on September 19, 2014, and upon reconsideration on December 18, 2014. (AR 51). A request for a hearing was filed, and a hearing was held on September 1, 2016, before Administrative Law Judge (“ALJ”) James Bentley. (AR 69). Ms. Alderete and Bonnie Ward, an impartial vocational expert (“VE”), testified at the hearing, and David R. Mika, an attorney, represented Ms. Alderete at the hearing. (AR 69-90).

         On November 2, 2016, the ALJ issued his decision, finding Ms. Alderete not disabled at any time between her alleged disability onset date through December 31, 2015, which is the date she was last insured. (AR 36). On December 16, 2016, Ms. Alderete requested review by the Appeals Council, (AR 171), and, on April 26, 2017 and May 1, 2017, Ms. Alderete submitted additional medical evidence to the Appeals Council, (AR 13-29). On September 25, 2017, the Appeals Council denied Ms. Alderete's request for review, making the ALJ's decision the Commissioner's final decision for purposes of this appeal. (AR 1-6).

         Ms. Alderete, who is now represented by Michael Armstrong, raises the following arguments on appeal of the Commissioner's decision: (1) the Appeals Council failed to properly consider the medical evidence submitted after the hearing before the ALJ; (2) the ALJ failed to develop the record regarding Ms. Alderete's physical impairments due to fibromyalgia, and her mental impairments due to depression and anxiety; and (3) the ALJ failed to account for Ms. Alderete's subjective allegations of pain and other symptoms. (Doc. 18 at 12-26). The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because the Appeals Council erred in failing to consider the additional evidence Ms. Alderete submitted, the Court finds that Ms. Alderete's Motion is well-taken and should be GRANTED and this case REMANDED for further proceedings.

         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); 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). The Commissioner's “failure to apply the correct legal standards, or show . . . that she has done so, are also grounds for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “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. An ALJ's 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 the Court may not re-weigh the evidence or try the issues de novo, its examination of the record 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 ALJ]'s 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)).

         II. Applicable Law and Sequential Evaluation Process

         For purposes of supplemental security income and disability insurance benefits, a claimant establishes a disability when 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), 42 U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920 (2012).

         At the first four steps of the SEP, the claimant bears the burden of showing: (1) she is not engaged in “substantial gainful activity”; (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) 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), 416.920(a)(4)(i-iv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation process. At step five the Commissioner must show 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. Grogan, 399 F.3d at 1261.

         III. Background

         Ms. Alderete applied for disability insurance benefits due to diabetes type 2, neuropathy in her feet, vision issues, a broken collarbone, arthritis in her shoulder, and issues with her range of motion. (AR 188). At step one, the ALJ determined that Ms. Alderete met the insured status requirements through December 31, 2015, and found that she had not engaged in substantial gainful activity from September 10, 2010, the alleged onset date, through the date she was last insured. (AR 53). At step two, the ALJ concluded that Ms. Alderete was severely impaired by: insulin-dependent type II diabetes mellitus, polyneuropathy, minor degenerative changes of the lumbar spine, plantar fascial fibromatosis, pre-ulcerative calluses, and obesity. (AR 53-55). At step three, the ALJ determined that none of Ms. Alderete's impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. (AR 55-56).

         At step four, the ALJ found that, through the date she was last insured, Ms. Alderete had the RFC to perform less than the full range of sedentary work as defined in 20 C.F.R. § 404.1567(b). (AR 57). The ALJ additionally found that Ms. Alderete can: lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; stand and/or walk for about two hours of an eight-hour workday; sit for about six hours of an eight-hour workday; occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; and occasionally kneel, crouch, and crawl. Id. The ALJ further limited Ms. Alderete to work where she is “able to avoid ordinary workplace ...


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