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Fowler v. Berryhill

United States District Court, D. New Mexico

November 13, 2018

CECIL J. FOWLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff seeks review of the Commissioner's determination that he is not entitled to disability insurance benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. On August 24, 2017, in accordance with 28 U.S.C. § 636(b)(1)(B), (b)(3), this case was referred to United States Magistrate Judge Kevin R. Sweazea to conduct any necessary hearings and to recommend an ultimate disposition. See Order of Reference, Doc. 7. Having considered Plaintiff's Motion to Reverse and Remand for a Rehearing (Doc. 22), filed March 1, 2018, the Commissioner's response in opposition (Doc. 24), filed March 29, 2018, and Plaintiff's reply (Doc 25), filed April 19, 2018, the undersigned RECOMMENDS that the Court DENY Plaintiff's motion for the reasons set forth below.


         On July 20, 2010, Plaintiff filed an application for supplemental security income benefits, alleging that he had been disabled since May 1, 2010, due to failed back surgery; PTSD; Hepatitis C; manic depression; panic attacks; rheumatoid arthritis; and degenerative disc disease. (AR 161, 196). On January 18, 2011, it was determined that Plaintiff was not disabled and his claim was denied. (AR 68). This determination was affirmed on May 31, 2011 (AR 70), and a subsequent hearing before administrative law judge (“ALJ”) Ann Farris, held on September 27, 2013, again ended in a denial. (AR 11-26). The ALJ's decision became final when, on February 25, 2015, the Appeals Council denied Plaintiff's request for review. (AR 1-5). See Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (explaining that if the Council denies a request for a review, the ALJ's opinion becomes the final decision). See also 20 C.F.R. § 416.1400(a)(1)-(5).

         Plaintiff challenged the ALJ's decision in the United States District Court for the District of New Mexico and, on September 9, 2017, Judge Khalsa remanded the matter for further proceedings. (AR 1018-36). Per the Court's order, Plaintiff was granted a second hearing. (AR 962-992). In the decision that followed, ALJ Farris determined that Plaintiff was not under a disability until April 1, 2015. (AR 949).

         In making this determination, ALJ Farris employed the required five-step disability analysis, [1] first finding that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of May 1, 2010. (AR 936). At step two, the ALJ determined that Plaintiff has the severe impairments of degenerative disc disease; chronic low back pain/lumbago; a left knee medical meniscus tear; and a mood disorder. (AR 937). At step three, the ALJ determined that none of Plaintiff's impairments, whether alone or in combination, met or medically equaled the severity of a listed impairment. (AR 938).

         ALJ Farris next determined that Plaintiff has the Residual Functional Capacity (“RFC”)[2]to:

perform light work as defined in 20 CFR 416.967(b) except he can only occasionally climb stairs; never claim [sic] ladders or scaffolds; occasionally balance, stoop, kneel, crouch, or crawl; never reach overhead; and interact with the general public no more than occasionally.

(AR 940-41).

         ALJ Farris then proceeded to steps four and five of the analysis where she concluded that, prior to April 1, 2015, Plaintiff was capable of performing the requirements of occupations such as stock checker; distribution clerk; and cleaner/housekeeper. (AR 948-49). Here, the ALJ explained that on April 1, 2015, Plaintiff's age category changed. And, after considering Plaintiff's age in conjunction with his education, work experience, and RFC, she determined that “there are no jobs that exist in significant numbers in the national economy that [Plaintiff] could perform.” (AR 949). ALJ Farris concluded that Plaintiff was not disabled prior to April 15, 2015, but was disabled after that date.

         Plaintiff now asks the Court to reverse the ALJ's decision, arguing that ALJ Farris improperly weighed opinion evidence provided by his nurse practitioners, Nancy Brooker (“NP Brooker”) and Brett Curran (“NP Curran”) (collectively “NPs”), and failed to properly account for the opinion evidence provided by state agency examining psychologist Dr. Sandra Eisemann. Plaintiff asserts that these alleged errors resulted in a flawed RFC determination.

         II. ANALYSIS

         A. Standard

         Judicial review of the Commissioner's decision is limited to determining “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005) (quotation omitted). The Court must examine the record as a whole, “including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. at 1262. “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.” Byron v. Heckler, 74 ...

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