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Hendrickson v. Berryhill

United States District Court, D. New Mexico

September 28, 2018

MARIA HENDRICKSON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.

          MEMORANDUM ORDER AND OPINION

          Laura Fashing. United States Magistrate Judge.

         THIS MATTER comes before the Court on plaintiff Maria Hendrickson's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 17), which was fully briefed on January 23, 2018. Docs. 20, 21, 22. The parties consented to my entering final judgment in this case. Docs. 6, 8, 9. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Appeals Council erroneously rejected additional evidence submitted by Ms. Hendrickson. The Court therefore GRANTS Ms. Hendrickson's motion and remands this case to the Commissioner for 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 [1] 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 [2] 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

         Ms. Hendrickson, currently age 61, dropped out of school after the tenth grade and worked as a cashier, at a call center, and as a school custodian. AR 40-42, 165, 194.[3] She filed an application for disability insurance benefits on December 2, 2013, alleging disability since August 9, 2013 due to a massive rotator cuff tear in her right shoulder, arrhythmia, and high blood pressure. AR 165, 193. The Social Security Administration (“SSA”) denied her claim initially on November 27, 2013. AR 93-98. The SSA denied her claims on reconsideration on August 28, 2014. AR 100-06. Ms. Hendrickson requested a hearing before an ALJ. AR 107- 08. On December 10, 2015, ALJ Eric Weiss held a hearing. AR 35-64. ALJ Weiss issued his unfavorable decision on January 21, 2016. AR 18-34.

         The ALJ found that Ms. Hendrickson was insured for disability benefits through December 31, 2018. AR 23. At step one, the ALJ found that Ms. Hendrickson had not engaged in substantial, gainful activity since August 9, 2013, her alleged onset date. Id. Because Ms. Hendrickson had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. Id. At step two, the ALJ found that Ms. Hendrickson had the following severe impairments: bilateral rotator cuff tears, status post-surgery; cervical degenerative change with broad-based disc bulge at ¶ 5-C6; moderate central stenosis; and right carpal tunnel syndrome. Id. The ALJ found the following impairments to be non-severe: “horizontal fracture of the humeral head; hypertension; cardiac arrhythmia; right knee osteoarthritis; sciatica; obstructive sleep apnea (OSA); diabetes mellitus; obesity; right plantar calcaneal spur.” AR 23- 24. At step three, the ALJ found that none of Ms. Hendrickson's impairments, alone or in combination, met or medically equaled a Listing. AR 24-25. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Hendrickson's RFC. AR 25-28. The ALJ found that Ms. Hendrickson had the RFC to perform light work

except the claimant is able to lift 20 pounds occasionally and lift and carry 10 pounds frequently with the left upper extremity; however, able to lift only 10 pounds occasionally and lift and carry less than 10 pounds frequently with the right upper extremity, and push and pull only 10 pounds occasionally with bilateral upper extremities. She is able to walk and stand for 6 hours per 8 hour workday and sit for 6 hour[s] per 8 hour workday with normal breaks. Never able to climb ladders, ropes and scaffolds. Able to occasionally stoop and crouch. Able to occasionally reach overhead with the non-dominant left upper extremity and never any overhead reaching with the dominant right upper extremity. Able to frequently finger with the dominant right upper extremity. Must avoid more than occasional exposure to unprotected heights and moving machinery.

         AR 25.

         At step four, the ALJ concluded that Ms. Hendrickson was able to perform her past relevant work as an order clerk, and therefore was not disabled. AR 28. The ALJ alternatively concluded that Ms. Hendrickson was not disabled at step five, concluding that she still could perform jobs that exist in significant numbers in the national economy-such as credit card clerk, receptionist, and information clerk. AR 29.

         Ms. Hendrickson requested review by the Appeals Council, and submitted additional evidence. AR 2, 5, 15-16. The Appeals Council accepted part of the additional evidence-a brief from Ms. Hendrickson's prior counsel-and made it part of the record. AR 5, 258. The Appeals Council rejected the other part of the additional evidence-a medical source statement from Dr. John Anderson-after finding that it was not chronologically pertinent. AR 2, 7-8. The Appeals Council denied Ms. Hendrickson's request for review on March 3, 2017. AR 1-6. Ms. Hendrickson timely filed her appeal to this Court on April 28, 2017. Doc. 1.

         IV. Ms. ...


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