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Ephrim v. Berryhill

United States District Court, D. New Mexico

October 29, 2018

GATHAN M. EPHRIM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner for the Social Security Administration, Defendant.



         THIS 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.

         Mr. 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).

         Mr. 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).

         On 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 this appeal.

         Mr. 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 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 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, 416.920 (2012).

         At the 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”[1] 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.

         III. Background

         Mr. 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. Id.

         At step 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).

         In 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).

         In 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 36).

         The ALJ 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.

         In 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 experience. Id.

         Next, 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 medical ...

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