United States District Court, D. New Mexico
GATHAN M. EPHRIM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner for the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Gathan M.
Ephrim's Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (the “Motion”),
(Doc. 17), filed June 5, 2018; Defendant Commissioner Nancy
A. Berryhill's Brief in Response to Plaintiff's
Motion (the “Response”), (Doc. 19), filed
August 13, 2018; and Mr. Ephrim's Reply to Brief in
Response (the “Reply”), (Doc. 20), filed
August 24, 2018.
Ephrim filed an application for disability insurance benefits
and supplemental security income on November 20, 2013.
(Administrative Record “AR” 25). In both of his
applications, Mr. Ephrim alleged disability beginning October
2, 2011. (AR 199, 206). Mr. Ephrim claimed he was limited in
his ability to work due to: bipolar disorder; post-traumatic
stress disorder (“PTSD”); anxiety disorder; and
depression. (AR 228).
Ephrim's applications were denied initially on June 5,
2014 and upon reconsideration on January 2, 2015. (AR 129,
136). Mr. Ephrim requested a hearing before an Administrative
Law Judge (“ALJ”), which was held on November 10,
2016 before ALJ James Bentley. (AR 46). Mr. Ephrim and Diana
Kizer, an impartial vocational expert (“VE”),
testified at the hearing and Mr. Ephrim was represented by
attorney Michelle Baca. (AR 46-73).
December 8, 2016 the ALJ issued his decision, finding Mr.
Ephrim not disabled at any time between his initial filing
date, November 20, 2013, through the date of his decision.
(AR 40). Mr. Ephrim 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
Ephrim, who is now represented by attorney Michael Armstrong,
argues in his Motion that the ALJ: (1) failed to properly
consider all of the moderate limitations assessed in the
medical opinions of Paul Cherry, Ph.D., Charles Bridges,
Ph.D., and Hammam Yahya, M.D.; (2) did not obtain adequate
factual information about Mr. Ephrim's past relevant work
and delegated the fact-finding to the VE; and (3) did not
identify all of Mr. Ephrim's non-exertional limitations
in his hypothetical posed to the VE. (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 Dr. Cherry, Dr. Bridges, and Dr.
Yahya's medical assessments, the Court finds that Mr.
Ephrim's Motion should be GRANTED IN
PART and this case REMANDED for
Standard of Review
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.
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)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
he 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,
first four steps of the SEP, the claimant bears the burden of
showing: (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 either (3) his impairment(s) meet or
equal one of the “listings” of presumptively
disabling impairments; or (4) he is unable to perform his
“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.
Ephrim claimed he was limited in his ability to work due to:
bipolar disorder; PTSD; anxiety disorder; and depression. (AR
228). At step one, the ALJ determined that Mr. Ephrim had not
engaged in substantial gainful activity since October 2,
2011, the alleged disability onset date. (AR 27). At step
two, the ALJ found that Mr. Ephrim has the following severe
impairments: bipolar disorder type I; depressive disorder;
PTSD; anxiety disorder; borderline personality disorder;
opiate use disorder, on maintenance treatment;
methamphetamine use disorder, active; status post complex
volar hand laceration to the left hand; status post
exploration; and repair of flexor tendons and digital nerves.
three, the ALJ determined that none of Mr. Ephrim'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
29-31). At step four, the ALJ found that Mr. Ephrim has the
RFC to perform a full range of work at all exertional levels
with the following limitations: he can frequently, but not
constantly, feel, handle, and finger with the left
non-dominant hand; he is able to understand, remember, and
carry out simple tasks with routine supervision; he is able
to make simple work-related decisions; and he is limited to
only occasional contact with coworkers, supervisors, and the
general public. (AR 31).
formulating Mr. Ephrim's RFC, the ALJ stated that he
considered Mr. Ephrim'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. Id. 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
concluded that some of Mr. Ephrim's impairments could be
expected to cause his alleged symptoms, but he found that the
intensity, persistence, and limiting effects that Mr. Ephrim
described were not entirely consistent with the evidence in
the record. (AR 32).
evaluating the medical evidence in the record, the ALJ stated
that he gave significant weight to the opinions of State
Agency reviewing psychologists Dr. Cherry and Dr. Bridges.
(AR 35). The ALJ explained that the State Agency
psychologists' opinions were well supported, citing Mr.
Ephrim's past medical responses to treatment and prior
longitudinal mental status examination findings. (AR 35-36).
In addition, the ALJ gave significant weight to the opinions
of Dr. Yahya, Mr. Ephrim's treating psychiatrist. (AR
35-36). Despite the ALJ's stated concern for
inconsistencies found in Dr. Yahya's medical source
statement, he concluded that Dr. Yahya's final
determination that Mr. Ephrim suffers from only moderate
limitations was well-supported by his treatment notes. (AR
also discussed the weight he gave to the opinions of other
medical professionals who evaluated Mr. Ephrim either on a
one time or infrequent basis, such as the healthcare
providers at the University of New Mexico Health Sciences
Center. (AR 33-37). Further, the ALJ compared the different
global assessment of functioning (“GAF”) scores
assigned to Mr. Ephrim and the medical evaluations
accompanying each score. Id.
addition to examining the psychological and psychiatric
evidence, the ALJ analyzed the evidence concerning Mr.
Ephrim's physical health, principally the injury he
sustained to his left hand. (AR 37-38). The ALJ described
both Mr. Ephrim's treatment history and his testimony at
the hearing regarding the symptoms he continued to
the ALJ noted the third-party function report completed by
Mr. Ephrim's grandmother, Andrea Gallegos [illegible].
(AR 38, 248). In her report, Ms. Gallegos stated that Mr.
Ephrim always appears depressed and angry, “only leaves
his room to smoke or eat or to use [sic] restroom, ”
“rarely sleeps due to anxiety and racing thoughts,
” and “goes weeks without bathing.” (AR
248-49). The ALJ concluded that Ms. Gallegos' opinions
are entitled to diminished weight because she is not a