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Montgomery v. Berryhill

United States District Court, D. New Mexico

January 17, 2019

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



         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 16)[2] filed August 3, 2017, in connection with Plaintiff's Motion to Reverse and Remand for Rehearing, With Supporting Memorandum, filed November 3, 2017. (Doc. 21.) Defendant filed a Response on January 19, 2018. (Doc. 24.) And Plaintiff filed a Reply on February 2, 2018. (Doc. 25.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds that Plaintiff's motion is well taken and shall be GRANTED.


         Plaintiff Tanya Renee Montgomery (Ms. Montgomery) alleges that she became disabled on December 27, 2011, at the age of thirty-four, because of blood clots in her heart and lungs, fatigue, depression, anxiety, attention deficit disorder, and stomach ulcers. (Tr. 313, 325.) Ms. Montgomery completed four or more years of college in 2001, and worked as a Verizon customer service representative, apartment property manager, and county office worker. (Tr. 326, 334-37.) Ms. Montgomery's date of last insured is December 31, 2019. (Tr. 19, 21.)

         Ms. Montgomery protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq., on November 13, 2012. (Tr. 267-73, 313.) Ms. Montgomery's application was denied at the initial level (Tr. 125-34, 135), and at reconsideration (Tr. 136-49, 150). Upon Ms. Montgomery's request, Administrative Law Judge (ALJ) Myriam C. Fernandez Rice held an initial hearing on March 25, 2015. (Tr. 109-120.) Ms. Montgomery decided, however, to postpone the hearing because she wanted to secure legal representation before proceeding. (Id.) On September 3, 2015, ALJ Fernandez Rice conducted a second hearing. (Tr. 34-63.) Attorney Gary Martone represented Ms. Montgomery at that hearing. (Id.) On October 15, 2015, ALJ Fernandez Rice issued a written decision concluding that Ms. Montgomery was “not disabled” pursuant to the Act. (Tr. 16-28.) On March 7, 2017, the Appeals Council denied Ms. Montgomery's request for review, rendering ALJ Fernandez Rice's October 15, 2017, decision the final decision of Defendant the Commissioner of the Social Security Administration. (Tr. 1-6.) Ms. Montgomery timely filed a complaint on May 5, 2017, seeking judicial review of the Commissioner's final decision. (Doc. 1.)


         A. Disability Determination Process

         A claimant is considered disabled for purposes of Social Security disability insurance benefits or supplemental security income if that individual 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); see also 42 U.S.C. § 1382c(a)(3)(A). The Social Security Commissioner has adopted a five-step sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R. §§ 404.1520, 416.920. The steps of the analysis are as follows:

(1) Claimant must establish that she is not currently engaged in “substantial gainful activity.” If Claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or mental impairment . . . or combination of impairments” that has lasted for at least one year. If Claimant is not so impaired, she is not disabled and the analysis stops.
(3) If Claimant can establish that her impairment(s) are equivalent to a listed impairment that has already been determined to preclude substantial gainful activity, Claimant is presumed disabled and the analysis stops.
(4) If, however, Claimant's impairment(s) are not equivalent to a listed impairment, Claimant must establish that the impairment(s) prevent her from doing her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [Claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the physical and mental demands of Claimant's past work. Third, the ALJ determines whether, given Claimant's RFC, Claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled and the analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that Claimant is able to “make an adjustment to other work.” If the Commissioner is unable to make that showing, Claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).

         B. Standard of Review

         A court must affirm the denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court's disagreement with a decision is immaterial to the substantial evidence analysis. A decision is supported by substantial evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he 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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         Similarly, even if a court agrees with a decision to deny benefits, if the ALJ's reasons for the decision are improper or are not articulated with sufficient particularity to allow for judicial review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific weighing of the evidence and “the record must demonstrate that the ALJ considered all of the evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence in the record. But, it does require that the ALJ identify the evidence supporting the decision and discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.

         III. ANALYSIS

         The ALJ made her decision that Ms. Montgomery was not disabled at step five of the sequential evaluation. (Tr. 27-28.) The ALJ determined that Ms. Montgomery met the insured status requirements of the Social Security Act through December 31, 2019 (Tr. 21), and that she had not engaged in substantial gainful activity since December 27, 2011, the alleged onset date. (Id.) She found that Ms. Montgomery had severe impairments of recurrent pulmonary emboli associated with ventricular thrombosis, depression, attention deficit disorder, and anxiety disorder.[3] (Tr. 21.) The ALJ determined, however, that Ms. Montgomery's impairments did not meet or equal in severity one of the listings described in the governing regulations, 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 22-23.) Accordingly, the ALJ proceeded to step four and found that Ms. Montgomery had the residual functional capacity to perform a wide range of light work as defined in 20 C.F.R. § 404.1567(b). The ALJ found that Ms. Montgomery

can lift up to 20 pounds occasionally; lift and/or carry up to 10 pounds frequently; can stand and/or walk up to six hours per eight-hour workday; and can sit for up to six hours of an eight-hour workday. She can never climb ladders, ropes, or scaffolds; should avoid even moderate exposure to the use of moving machinery and to unprotected heights. She is able to maintain, understand, and remember simple work instructions with occasional changes in the work setting. She is limited to work that requires only occasional contact with the public and co-workers.

(Tr. 24.) The ALJ concluded at step four that Ms. Montgomery was unable to perform her past relevant work as a customer service operator. (Tr. 27.) At step five, the ALJ determined that based on her age, education, work experience, RFC, and the testimony of the VE, that there were jobs existing in significant numbers in the national economy that Ms. Montgomery could perform. (Tr. 27-28.)

         Plaintiff argues that: (1) the ALJ failed to correctly apply the treating physician rule to the opinions of Clark E. Haskins, M.D.; and (2) the ALJ failed to properly evaluate the opinion of examining State agency psychological consultant Louis Wynne, Ph.D. (Doc. 9-13.) Because the Court finds that the ALJ committed legal error in her consideration of Dr. ...

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