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Hernandez v. Berryhill

United States District Court, D. New Mexico

December 6, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff Benito Hernandez, Jr.'s Motion to Reverse and Remand for a Rehearing, With Supporting Memorandum (the "Motion"), (Doc. 23), filed August 20, 2018; Defendant Commissioner Nancy A. Berryhill's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the "Response"), (Doc. 27), filed October 19, 2018; and Mr. Hernandez' Reply to Brief in Response to Motion to Reverse and Remand (the "Reply"), (Doc. 29), filed October 29, 2018.

         Mr. Hernandez filed an application for disability insurance benefits on November 10, 2014, alleging disability beginning May 7, 2014. (Administrative Record "AR" 61). Mr. Hernandez claimed he was limited in his ability to work due to lumbar pain, problems with his L-4 and L-5 discs, and weakness in his legs. (AR 296). Mr. Hernandez' application was denied initially on June 18, 2015, and upon reconsideration on November 4, 2015. (AR 61). A request for a hearing was filed, and a hearing was held on January 20, 2017, before Administrative Law Judge ("ALJ") Lillian Richter. (AR 116). Mr. Hernandez and Nicole B. King, an impartial vocational expert ("VE"), testified at the hearing, and Sofia Reyes McDermott, an attorney, represented Mr. Hernandez at the hearing. (AR 116-148).

         On February 16, 2017, the ALJ issued her decision, finding Mr. Hernandez not disabled at any time between his alleged disability onset date through the date of the decision. (AR 72). After the ALJ's decision, Mr. Hernandez submitted additional medical records to the Appeals Council. (AR8-11, 16-23, 27-41, 43-57, 79-115, 674-91). On March 29, 2017, Mr. Hernandez requested review by the Appeals Council, (AR 262-66), and, on January 11, 2018, the Appeals Council denied Mr. Hernandez' request for review, making the ALJ's decision the Commissioner's final decision for purposes of this appeal, (AR 1-6).

         Mr. Hernandez, who is now represented by attorney Francesca MacDowell, raises the following arguments on appeal of the Commissioner's decision: (1) the ALJ erred by failing to properly weigh the evidence and in assessing Mr. Hernandez' abilities and symptoms; and (2) the Appeals Council failed to properly consider the medical evidence submitted after the ALJ's decision. (Doc. 23 at 4-21). The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the Administrative Record. (Docs. 18 and 28). Because the Appeals Council erred in failing to consider the additional evidence Mr. Hernandez submitted, the Court finds that Mr. Hernandez' Motion is well-taken and 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. Bamhart, 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 she 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), 42 U.S.C. § 1382c(a)(3)(A), 20 C.F.R. §§ 404.1505(a), 416.905(a). 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.

         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), 416.920(a)(4)(i-iv); see also Grogan v. Bamhart, 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.3dat 1261.

         III. Background

         Mr. Hernandez applied for disability insurance benefits due to lumbar pain, problems with his L-4 and L-5 discs, and weakness in his legs. (AR 296). At step one, the ALJ determined that Mr. Hernandez had not engaged in substantial gainful activity since May 7, 2014, the alleged onset date. (AR 63). At step two, the ALJ concluded that Mr. Hernandez had the following severe impairments: diabetes under control, cerebral infarction, degenerative disc disease of the lumbar spine, varicose veins of bilateral lower extremities, peripheral vascular disease, post rotator cuff repair of the right shoulder, obesity, osteoarthritis of the left knee, atherosclerosis, coronary artery disease, and neuropathy. Id. At step three, the ALJ determined that none of Mr. Hernandez' impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. (AR 64-66).

         At step four, the ALJ found that Mr. Hernandez has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b). (AR 66). The ALJ additionally found that Mr. Hernandez can: lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand/walk for 6 hours and sit for 6 hours in an 8-hour workday; and occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. The ALJ further found that Mr. Hernandez: could never climb ladders, ropes, or scaffolds; could never balance; and should avoid exposure to unprotected heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants, extreme heat, and extreme cold. Finally, the ALJ found that Mr. Hernandez ...

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