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Patel v. Berryhill

United States District Court, D. New Mexico

September 27, 2018

BEENA G. PATEL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Beena G. Patel's Motion to Remand to Agency with Supporting Memorandum (the “Motion”), (Doc. 17), filed March 3, 2018; Defendant Commissioner Nancy A. Berryhill's Response in Opposition to Remand to Agency (the “Response”), (Doc. 19), filed May 29, 2018; and Ms. Patel's Reply to Response to Motion to Remand (the “Reply”), (Doc. 22), filed June 11, 2018.

         Ms. Patel filed an application for disability insurance benefits on November 13, 2013 and for supplemental security income on July 8, 2015. (Administrative Record “AR” 12). In both of her applications, Ms. Patel alleged disability beginning July 26, 2009. (AR 12). Upon the advice of her attorney, Ms. Patel later amended her onset of disability date to December 15, 2014. (AR 12).

         Ms. Patel claimed she was limited in her ability to work due to: post-traumatic stress disorder, panic attacks, anxiety, osteopenia, a back injury, depression, sleep apnea, lack of cartilage, and night terrors. (AR 263). Ms. Patel's applications were denied initially on May 9, 2014 and upon reconsideration on December 12, 2014. (AR 8). Ms. Patel requested a hearing before an Administrative Law Judge (“ALJ”), which was held on September 27, 2016 before ALJ Raul C. Pardo. (AR 82). Ms. Patel and Karen Provine, an impartial vocational expert (“VE”), testified at the hearing and Ms. Patel was represented by attorney Michael Armstrong. (AR 82-129).

         On November 28, 2016 the ALJ issued his decision, finding Ms. Patel not disabled at any time between her initial filing date, November 13, 2013, through the date of his decision. (AR 26). Ms. Patel requested review by the Appeals Council, (AR 1), which was denied, (AR 1-4), making the ALJ's opinion the Commissioner's final decision for purposes of this appeal.

         Ms. Patel, who continues to be represented by attorney Michael Armstrong, argues in her Motion that the ALJ: (1) failed to properly consider the opinions of Ms. Patel's treating physician, Jesse Barnes, M.D.; (2) “picked and chose” from the limitations provided by State Agency psychological consultants Suzanne Castro, Psy.D. and Carol Mohney, Ph.D.; and (3) erred in not applying the Trimiar v. Sullivan analysis under Step 5 for cases involving a borderline number of jobs. (Doc. 17 at 2). 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 ALJ erred in his consideration of Ms. Patel's treating physician's opinions and his consideration of the State Agency psychological consultants' opinions, the Court finds that Ms. Patel's Motion 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) (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). The Commissioner's “failure to apply the correct legal standards, or to 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); see also 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 bears the burden of showing 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. Grogan, 399 F.3d at 1261.

         III. Background

         Ms. Patel claimed she was limited in her ability to work due to: post-traumatic stress disorder, panic attacks, anxiety, osteopenia, a back injury, depression, sleep apnea, lack of cartilage, and night terrors. (AR 263). At step one, the ALJ determined that Ms. Patel had not engaged in substantial gainful activity since December 15, 2014, the amended alleged disability onset date. (AR 14). At step two, the ALJ found that Ms. Patel has the following severe impairments: depression, post-traumatic stress disorder, anxiety, status post right hemi-colectomy with ileostomy and subsequent ileostomy takedown, fibromyalgia, and seizure disorder. (AR 14-15). At step three, the ALJ determined that none of Ms. Patel's impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 15-17).

         At step four, the ALJ found that Ms. Patel has the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the following limitations: she can lift and/or carry up to 10 pounds occasionally and less than 10 pounds frequently; she can push and/or pull as much as she can lift and carry; she can stand and/or walk for two hours in an eight-hour workday; she can sit for six hours in an eight-hour workday; she can occasionally climb ramps and stairs, and stoop; she can frequently reach overhead; she retains the ability to understand, remember, and carry out simple, routine tasks, and occasionally respond appropriately to the public; her time off task can be accommodated by normal breaks; she must avoid hazards such as unprotected heights and moving mechanical parts; and she can never climb ladders, ropes, or scaffolds. (AR 17-18).

         In formulating Ms. Patel's RFC, the ALJ stated that he considered Ms. Patel's symptoms and the extent to which those symptoms can reasonably be accepted as consistent with objective medical and other evidence, as required by 20 C.F.R. §§ 404.1529, 416.929 and Social Security Ruling (“SSR”) 96-4p. (AR 18). The ALJ also stated that he considered opinion evidence consistent with the requirements of 20 C.F.R. §§ 404.1527, 416.927 and SSRs 96-2p, 96-5p, 96-6p, 06-3p. Id. The ALJ found that Ms. Patel's impairments could be expected to cause her alleged symptoms. Id. However, the ALJ noted that her statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the evidence in the record. Id.

         Turning to the medical evidence in the record, the ALJ gave great weight to the opinions of State Agency psychological consultants Dr. Castro and Dr. Mohney. (AR 22). The ALJ explained that the State Agency psychological consultants' opinions are consistent with the medical evidence as a whole, and specifically with the findings of David LaCourt, Ph.D., a State Agency psychological consultative physician who examined Ms. Patel. Id. The ALJ, however, afforded lesser weight to the State Agency psychological consultants' determination that Ms. Patel had no severe medical impairments. Id.

         The ALJ also gave great weight to the opinions of consultative examiner Gregory E. McCarthy, M.D., who opined that Ms. Patel was “capable of sitting, standing, and walking given adequate breaks in an eight-hour day, and lifting and/or carrying ten to twenty pounds on an occasional basis.” (AR 22). However, the ALJ concluded that Ms. Patel's physical limitations were more severe than those assessed by Dr. McCarthy. Id. Next, the ALJ gave great weight to the opinion of Dr. LaCourt. (AR 23). The ALJ stated that Dr. LaCourt found ...


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