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Smokovich v. Berryhill

United States District Court, D. New Mexico

October 22, 2018

CATHERINE SMOKOVICH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's Motion to Remand the Social Security Agency (“SSA”) decision to deny Plaintiff Disability Insurance Benefits (“DIB”). Doc. 17. For the reasons explained below, I recommend denying Plaintiff's motion and affirming the judgment of the SSA.

         I. Procedural History

         On September 12, 2012, Plaintiff filed an application for a period of disability and for DIB under Title II of the Social Security Act, alleging disability beginning April 26, 2011. Administrative Record (“AR”) at 203. Plaintiff alleged that she had a disability resulting from radiculopathy, disc protrusions, hip pain, back injuries, arthritis, bursitis, migraines, fibromyalgia, cervicalgia, insomnia and depression. Id. at 246. The claim was initially denied on February 4, 2013 and denied again upon reconsideration on July 1, 2013. Id. at 126-30, 134-37. An Administrative Law Judge (“ALJ”) held a hearing on November 29, 2016. Id. at 62-94.

         On December 23, 2016, the ALJ issued an unfavorable decision, concluding that Plaintiff was not disabled from her alleged onset date of April 26, 2011 through the date of the ALJ's decision. Id. at 51-52. Plaintiff appealed the denial of her application to the Appeals Council, which declined review on October 6, 2017, thus making the ALJ's decision the final decision of the Commissioner. Id. at 1-3. Plaintiff filed suit in this Court on December 4, 2017, seeking judicial review of the ALJ's decision. Doc. 1.

         II. Standard of Review

          Pursuant to 42 U.S.C. § 405(g), a court may review a final decision of the Commissioner only to determine whether it (1) is supported by “substantial evidence” and (2) comports with the proper legal standards. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800-01 (10th Cir. 1991). “In reviewing the ALJ's decision, we neither reweigh the evidence nor substitute our judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotations omitted).

         Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Casias, 933 F.3d at 800 (internal quotations omitted). “The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). “[I]n addition to discussing the evidence supporting his decision, the ALJ must also discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id. at 1010. “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) (internal quotations omitted).

         III. Parties' Positions

         Plaintiff asserts that (1) the ALJ erred by failing to meaningfully explain his rationale for holding that Plaintiff's musculoskeletal impairments do not satisfy the criteria of Listing 1.04, (2) the ALJ made improper credibility findings, (3) the Appeals Council erred by failing to consider new evidence, and (4) the ALJ failed to properly analyze whether Plaintiff's job as a health care educator constitutes past relevant work. See doc. 17 at 16-24. Defendant argues that there was no reversible error, because (1) the ALJ reasonably determined that the Plaintiff's impairments did not meet or equal the requirements for a per se disabling listed impairment, (2) the ALJ performed a proper credibility analysis, (3) the Appeals Council's denial of Plaintiff's request for review is not reversible error, and (4) the ALJ's past relevant work determination is supported by substantial evidence. See doc. 19 at 9-21. Ultimately, I recommend that the Court find that the ALJ did not commit reversible error, and thereby affirm the final decision of the Commissioner.

         IV. ALJ Evaluation

         A. Legal Standard

         For purposes of Social Security Disability Insurance benefits, an individual is disabled when 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. § 1382c(a)(3)(A). To determine whether a person satisfies these criteria, the SSA has developed a five-step test. See 20 C.F.R. § 404.1520. If the Commissioner finds an individual disabled at any step, the next step is not taken. Id. § 404.1520(a)(4).

         At the first four steps of the analysis, the claimant has the burden to show: (1) he is not engaged in “substantial gainful activity;” (2) he 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 that either (3) his impairments meet or equal one of the “Listings” of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” Id. § 404.1520(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

         Step four of this analysis consists of three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ determines the claimant's residual functional capacity (“RFC”) in light of “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). A claimant's RFC is “the most [he or she] can still do despite [physical and mental] limitations.” Id. § 404.1545(a)(1). Second, the ALJ determines the physical and mental demands of the claimant's past work. “To make the necessary findings, the ALJ must obtain adequate ‘factual information about those work demands which have a bearing on the medically established limitations.'” Winfrey, 92 F.3d at 1024 (quoting Social Security Ruling 82-62, 1982 WL 31386, at *3 (1982)). Third, the ALJ determines whether, in light of the RFC, the claimant is capable of meeting those demands. Id. at 1023, 1025.

         If the ALJ concludes that the claimant cannot engage in past relevant work, he or she proceeds to step five of the evaluation process. At step five, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity, age, education, and work experience. Grogan, 399 F.3d at 1257.

         B. The ALJ's Decision

         On December 23, 2016, the ALJ issued a decision denying Plaintiff's application for benefits. See AR at 35-52. In denying Plaintiff's application, the ALJ applied the five-step sequential analysis. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of April 26, 2011. Id. at 37. At step two, the ALJ determined that Plaintiff, through the date last insured, had the following medically determinable impairments: degenerative disc disease of the lumbar, osteoarthritis, diabetes, asthma, bilateral De Quervain's tenosynovitis and cubital tunnel syndrome in the right upper extremity, and obesity. Id. However, at step three, the ALJ concluded that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]” Id. at 39-40.

         At step four, the ALJ determined that Plaintiff has an RFC to perform light work, with certain limitations. AR at 40. Specifically, the ALJ determined that Plaintiff can:

lift 20 pounds occasionally and lift and carry 10 pounds frequently. The claimant can stand and walk alternatively for 4 hours each activity and sit for 6 hours out of 8 hours per day. The claimant can reach, push and pull with upper extremities up to 8 hours per 8-hour day. The claimant can use the left hand for grasping, holding and turning objects up to 8 hours per 8-hour day. The claimant can use the right hand for grasping, holding and turning objects up to 2 hours per 8-hour day. The claimant can alternatively stoop, kneel, crouch, crawl, and balance up to 6 hours per 8- hour day. The claimant cannot ascend and/or descend ropes/ladders/scaffolds. The claimant must avoid concentrated exposures to dusts, fumes, gases, odors.

Id. Also, at step four, the ALJ found that Plaintiff is capable of performing past relevant work as a teacher, vocational training teacher, caseworker, health educator and social services aide. Id. at 49. Nevertheless, the ALJ continued to step five and found that Plaintiff could additionally perform jobs that exist in significant numbers in the national economy, including (1) furniture rental clerk (DICOT 295.357-018, 1991 WL 672589), (2) conveyor line bakery worker (DICOT 524.687-022, 1991 WL 674401), and (3) parking lot attendant (DICOT 915.473-010, 1991 WL 687865). AR at 51. Consequently, the ALJ determined that Plaintiff was not disabled. Id.

         V. Analysis

         A. The ALJ's Determination that Plaintiff's Musculoskeletal Impairments Do Not Satisfy the Criteria of Listing 1.04 is Supported by Substantial Evidence.

         In her Motion, Plaintiff contends that the ALJ erred during step three of the sequential evaluation by finding that Plaintiff's musculoskeletal impairments do not satisfy the criteria of either Listing 1.04 (A) or (C) and by failing to adequately explain his reasoning behind such a finding. Doc. 17 at 16-18, doc. 20 at 1-2. For the following reasons, I recommend that the Court find that substantial evidence supports ...


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