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Gassner v. Berryhill

United States District Court, D. New Mexico

November 20, 2018

THOMAS A. GASSNER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REVERSE AND REMAND

          KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff seeks review of the Commissioner's determination that he is not entitled to disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. With the consent of the parties to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b), the Court has considered Plaintiff's Motion to Reverse or Remand Administrative Agency Decision (Doc. 17), filed June 22, 2018, the Commissioner's response in opposition (Doc. 19), filed August 17, 2018, and Plaintiff's reply (Doc. 21), filed September 21, 2018. Having so considered, the Court FINDS and CONCLUDES that Plaintiff's motion should be DENIED.

         I. PROCEDURAL BACKGROUND

         On May 27, 2014, Plaintiff filed an application for Social Security Disability Insurance benefits, alleging that he had been disabled since May 19, 2014, due to a head injury; left side mastoidectomy/perforated left eardrum; rod and fasteners in left hip/femur/knee; plate and fasteners on right ankle; PTSD/depression; Chagas disease; blurred vision; dizziness; and nausea. (AR 209). On October 22, 2014, it was determined that Plaintiff was not disabled and his claim was denied. (AR 66). This determination was affirmed on May 1, 2015 (AR 82), and a subsequent hearing before administrative law judge (“ALJ”) James Bentley, held on December 8, 2016, again ended in a denial. (AR 7-32).

         In making his decision, ALJ Bentley engaged in 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 19, 2014.[2] (AR 12). At step two, ALJ Bentley found that Plaintiff has the severe impairments of chronic left hip pain; left leg pain; pain in the right foot; bilateral leg and foot pain; peripheral neuropathy; deformed third and fourth toes on the left; drop foot on the right; vertigo; posttraumatic stress disorder (PTSD); cognitive disorder; and alcohol and cocaine abuse, in remission. (Id.). The ALJ also found that Plaintiff has the non-severe impairments of headaches; left ear pain; and hypertension. (AR 13). 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 14).

         ALJ Bentley next assessed Plaintiff's Residual Functional Capacity (“RFC”), [3] finding that, through the date last insured, Plaintiff had the RFC to:

perform light work as defined in 20 CFR 404.1567(b) except he was limited to understanding, remembering, and carrying out simple tasks with supervision due to side effects from medication. He was unable to climb ladders, ropes or scaffolding; limited to occasional climbing of stairs and ramps. He needed to avoid unprotected heights and dangerous machinery. He was limited to occasional balancing, kneeling, stooping, crouching, and crawling. He would require a sit/stand option, defined as just a temporary change in position from sitting to standing and vice versa with no more than one change in position every 20 minutes and without leaving the workstation so as not to diminish pace or production.

(AR 17). The ALJ then proceeded to steps four and five where, with the help of a vocational expert, he determined that Plaintiff could not perform his past relevant work but he could perform the requirements of representative light occupations including, small products assembler, inspector packer, and cashier II performed in a booth setting. (AR 25-26).

         The ALJ's decision became final when, on November 22, 2017, the Appeals Council denied Plaintiff's request for review. (AR 1). 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. § 404.900(a)(1)-(5). Plaintiff now asks this Court to reverse and remand the Commissioner's decision.

         II. 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). See also 42 U.S.C. § 405(g). “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, 742 F.2d 1232, 1235 (10th Cir. 1984) (quotation omitted). Even so, it is not the function of the Court to review Plaintiff's claims de novo, and the Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).

         III. ANALYSIS

         A. Plaintiff's Argument

         Plaintiff raises one argument on appeal; namely that, when formulating Plaintiff's RFC, ALJ Bentley failed to properly consider opinion evidence provided by examining consultative psychologist, Dr. Louis Wynne. For the reasons discussed below, ...


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