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Mitchell v. Berryhill

United States District Court, D. New Mexico

November 30, 2018

MICHELLE MITCHELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER GRANTING IN PART PLAINTIFF'S MOTION TO REVERSE AND REMAND

          KEVIN R SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks review of the Commissioner's determination that she is not entitled to disability benefits under Title II or Title XIV of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383c. 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 and Remand for a Rehearing (Doc. 17), filed July 13, 2018, the Commissioner's response in opposition (Doc. 18), filed September 7, 2018, and Plaintiff's reply (Doc. 21), filed October 18, 2018. Having so considered, the Court FINDS and CONCLUDES that Plaintiff's motion should be granted in part.

         I. PROCEDURAL BACKGROUND

         On June 22, 2012, Plaintiff filed applications for Social Security and Supplemental Security Income disability benefits, alleging that she had been disabled from August 30, 2011 through January 1, 2016, due to Multiple Sclerosis; numbness in arms and legs; balance, coordination, and focus problems; and memory loss. (AR 300). On November 7, 2012, it was determined that Plaintiff was not disabled and her claim was denied. (AR 166). This determination was affirmed on July 09, 2013 (AR 177), and a subsequent hearing before an administrative law judge (“ALJ”), held on August 4, 2014, again ended in a denial. (AR 55-75). The ALJ's decision became final when, on January 20, 2015, the Appeals Council denied Plaintiff's request for review. (AR 2). 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 challenged the ALJ's decision in the United States District Court for the District of New Mexico and, on May 10, 2016, Judge Garza remanded the matter for further proceedings. (AR 867-80).

         Per the Court's order, Plaintiff was granted a second hearing. (AR 883). In the decision that followed, ALJ Ann Farris engaged in the required five-step disability analysis, [1] first finding that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of August 30, 2011 through January 1, 2016.[2] (AR 762). At step two, the ALJ found that Plaintiff has the severe impairments of Multiple Sclerosis, depression, and scoliosis. (Id.). ALJ Farris also found that Plaintiff has the non-severe impairments of a history of gallbladder disease, irritable bowel syndrome, urinary incontinence, obesity, and marijuana dependence. (AR 763). 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. (Id.).

         ALJ Farris next assessed Plaintiff's Residual Functional Capacity (“RFC”), [3] finding that, from August 30, 2011 to January 1, 2016, Plaintiff had the RFC to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she was limited to work that did not require her to balance, did not involve more than brief exposure to heat, involved simple work related decisions with few workplace changes, involved occasional superficial interaction with coworkers, and did not involve work at production pace such as an assembly job or performing tandem tasks.

(AR 765). The ALJ then proceeded to steps four and five where, with the help of a vocational expert (“VE”), she determined that Plaintiff could not perform her past relevant work but she could perform the requirements of representative occupations such as charge account clerk, call out operator, and telephone quotation clerk. (771-72).

         Plaintiff did not file written exceptions with the Appeals Council and the Council did not assume jurisdiction of Plaintiff's claim within sixty days of the ALJ's decision. Accordingly, the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.984(d). Plaintiff now asks this Court to reverse and remand the Commissioner's determination.

         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

         Plaintiff offers two arguments in support of her request for reversal and remand, viz., that ALJ Farris failed to properly consider opinion evidence provided by Plaintiff's treating counselor, LPCC Marty Rasmussen, and that she failed to resolve a conflict between the VE's testimony and the Dictionary of Occupational Titles (“DOT”). After carefully reviewing the administrative record, the Court finds that Plaintiff's first argument is without merit. However, the Court agrees that the ALJ failed to reconcile the VE's testimony with the DOT and it will reverse in part on this ground.

         Evidence Provided ...


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