United States District Court, D. New Mexico
CHARLES D. FARDEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
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
Standard of Review
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). 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.
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)).
Applicable Law and Sequential Evaluation Process
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).
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 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.
Background and Procedural History
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. 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.
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.
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.
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
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. Doc. 1.
Mr. Farden's Claims
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.
The ALJ failed to adequately consider the objective testing
that supported consultative ...