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Farden v. Berryhill

United States District Court, D. New Mexico

January 17, 2019

CHARLES D. FARDEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing Judge

         THIS MATTER comes before the Court on plaintiff Charles D. Farden's Motion to Reverse or Remand Administrative Agency Decision and Memorandum Brief (Doc. 24), which was fully briefed on May 30, 2018. See Docs. 26, 29, 30. The parties consented to my entering final judgment in this case. Doc. 16. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) erred by failing to consider the objective testing that supported consultative psychiatrist Dr. Michael Gzaskow's opinions. I therefore GRANT Mr. Farden's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). “The 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.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A 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.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole 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] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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 (3) the impairment(s) either meet or equal one of the Listings[2] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show 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. Id.

         III. Background and Procedural History

         Mr. Farden was born in 1967, completed one year of college, and worked as a delivery driver, repair technician, field service technician, and information technology technician. AR 164, 187-88.[3] He filed an application for Disability Insurance Benefits (“DIB”) on April 10, 2014, alleging disability since December 15, 2011 due to type 2 diabetes, neuropathy, anxiety, depression, arthritis, high blood pressure, high cholesterol, asthma, sleep apnea, and obesity. AR 164-70, 186. The Social Security Administration (“SSA”) denied his claim initially on September 6, 2014. AR 103-07. The SSA denied his claims on reconsideration on April 9, 2015. AR 109-12; Doc. 19-1 at 2. Mr. Farden requested a hearing before an ALJ. AR 113-14.

         On May 17, 2016, ALJ Michelle K. Lindsay held a hearing. AR 33-65. ALJ Lindsay issued an unfavorable decision on November 21, 2016. AR 11-32.

         At step one, the ALJ found that Mr. Farden had not engaged in substantial, gainful activity December 15, 2011, his alleged onset date. AR 16. At step two, the ALJ found that Mr. Farden suffered from the severe impairments of diabetes mellitus with peripheral neuropathy; morbid obesity; obstructive sleep apnea; mood disorder with mixed anxiety and depression; generalized anxiety disorder; and depressive disorder (unspecified). Id. At step three, the ALJ found that none of Mr. Farden's impairments, alone or in combination, met or medically equaled a Listing. AR 17-19. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Farden's RFC. AR 19-25. The ALJ found Mr. Farden had the RFC to

perform sedentary work as defined in 20 CFR 404.1567(a) except that he requires the use of a cane when walking, can only occasionally climb stairs and ramps, balance, stoop, crouch, kneel, and crawl, and can never climb ladders, ropes, or scaffolds. He must avoid more than occasional exposure to extreme heat or cold, and must completely avoid unprotected heights and hazardous machinery. The claimant is able to understand, remember, and carry out simple instructions, and is able to maintain attention and concentration to perform simple tasks for two hours at a time without requiring redirection to task. He can have only occasional contact with the general public, and only superficial interactions with co-workers and supervisors. He requires work involving no more than occasional change in the routine work setting.

         AR 19.

         At step four, the ALJ concluded that Mr. Farden was unable to perform his past relevant work as a medical equipment preparer, sales route driver, hospital food service worker, or respiratory therapist aide. AR 25. The ALJ found Mr. Farden not disabled at step five because he could perform jobs that exist in significant numbers in the national economy-such as small item inspector, table worker, and small product assembler. AR 26.

         On February 3, 2017, Mr. Farden requested review of the ALJ's unfavorable decision by the Appeals Council. AR 10. On May 2, 2017, the Appeals Council denied the request for review. AR 1-3. Mr. Farden timely filed his appeal to this Court on July 6, 2017.[4] Doc. 1.

         IV. Mr. Farden's Claims

         Mr. Farden raises two arguments for reversing and remanding this case: (1) the ALJ failed to adequately consider the objective testing and signs that supported consultative psychiatrist Dr. Gzaskow's opinions; (2) the Appeals Council erred in refusing to consider new, material, chronologically relevant evidence. See Doc. 24. For the reasons discussed below, I find that the ALJ erred in weighing Dr. Gzaskow's opinions, and remand on this basis. I do not address the other alleged error, which “may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         V. Analysis

         A. The ALJ failed to adequately consider the objective testing that supported consultative ...


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