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Nunez v. Berryhill

United States District Court, D. New Mexico

February 4, 2019

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



         THIS MATTER is before the Court on Plaintiff Samuel Nunez' Motion to Reverse and Remand for Rehearing, with Supporting Memorandum (the “Motion”), (Doc. 23), filed November 1, 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. 25), filed December 21, 2018; and Mr. Nunez' Reply to Brief in Response to Motion to Reverse and Remand (the “Reply”), (Doc. 26), filed January 16, 2019.

         Mr. Nunez filed an application for disability insurance benefits on June 9, 2016 and for supplemental security income on May 3, 2016. (Administrative Record “AR” 184, 191). In both of his applications, Mr. Nunez alleged disability beginning March 31, 2013. Id. Mr. Nunez claimed he was limited in his ability to work due to: a left shoulder injury; a left chest non-cancerous mass removal; hypertension; high cholesterol; and insomnia. (AR 226). Mr. Nunez later amended his disability onset date to August 3, 2015. (AR 205).

         Mr. Nunez' applications were denied initially on July 25, 2016 and upon reconsideration on October 24, 2016. (AR 114, 120). At Mr. Nunez' request, (AR 132), a hearing was held on September 5, 2017 before Administrative Law Judge (“ALJ”) Eric Weiss, (AR 31). Mr. Nunez and Tammy Donaldson, an impartial vocational expert (“VE”) appearing telephonically, testified at the hearing and Mr. Nunez was represented by a non-attorney advocate, Catalina Marie Laaroussi. Id.

         On December 21, 2017 the ALJ issued his decision, finding Mr. Nunez not disabled at any time between his alleged onset date, August 3, 2015, through the date of his decision. (AR 24). Mr. Nunez requested review by the Appeals Council, (AR 182), which was denied, (AR 1-3), making the ALJ's opinion the Commissioner's final decision for purposes of this appeal.

         Mr. Nunez, who is now represented by attorney Francesca MacDowell, argues in his Motion that: (1) his residual functional capacity (“RFC”) does not incorporate the limitations proscribed by treating nurse practitioner (“NP”) K. Cathey, (Doc. 23 at 6-10); (2) the ALJ failed to properly consider limitations resulting from his diabetes, obesity, depression, and anxiety, id. at 16-20; and (3) substantial evidence presented by Mr. Nunez' testimony and the medical opinions in the record supports a finding of disability, id. at 10-16. Relatedly, Mr. Nunez also contends that because the VE was presented with an incorrect RFC assessment, the ALJ's reliance on the VE's testimony was improper. Id. at 24-25. The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because the ALJ erred in his consideration of Mr. Nunez' treating nurse practitioner's opinion, the Court finds that Mr. Nunez' Motion should be GRANTED 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. Barnhart, 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 he 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) (2015), 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. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in his 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 RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.

         III. Background

         Mr. Nunez claimed he was limited in his ability to work due to: a left shoulder injury; a left chest non-cancerous mass removal; hypertension; high cholesterol; and insomnia. (AR 226). At step one, the ALJ determined that Mr. Nunez had not engaged in substantial gainful activity since August 3, 2015, the alleged disability onset date. (AR 18). At step two, the ALJ found that Mr. Nunez has the following severe impairments: left shoulder impingement syndrome with rotator cuff tendinosis, SLAP tear, and acromioclavicular degenerative joint disease post-surgical repair; right wrist loose body in wrist joint and right ulnar impaction syndrome post-surgery; and male left breast gynecomastia/mass post-mastectomy with nipple grafting. Id. At step three, the ALJ determined that none of Mr. Nunez' impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 19).

         At step four, the ALJ found that Mr. Nunez has the RFC to perform light work with the following limitations on his abilities to: lift 20 pounds occasionally, lift and carry 10 pounds frequently, and push and pull occasionally with bilateral upper extremities; walk, stand, and sit for 6 hours per 8-hour workday with normal breaks; occasionally climb ramps and stairs, but never ladders, ropes, and scaffolds; frequently balance, stoop, crouch, kneel, and occasionally crawl; occasionally reach overhead, and frequently reach in front and laterally with the non-dominant left upper extremity; frequently handle with the dominant right upper extremity; and avoid more than occasional exposure to extreme cold and wetness, vibration, and dangerous moving machinery. (AR 19, 20).

         In formulating Mr. Nunez' RFC, the ALJ stated that he considered Mr. Nunez' symptoms and the extent to which those symptoms can reasonably be accepted as consistent with objective medical and other evidence, as required by 20 C.F.R. §§ 404.1529, 416.929 and Social Security Ruling (“SSR”) 16-3p. (AR 20). The ALJ also stated that he considered opinion evidence consistent with the requirements of 20 C.F.R. §§ 404.1527 and 416.927. Id. The ALJ concluded that some of Mr. Nunez' impairments could be expected to cause his alleged symptoms, but he found that the intensity, persistence, and limiting effects that Mr. Nunez described were not entirely consistent with the evidence in the record. Id.

         In evaluating the medical evidence in the record, the ALJ stated that he gave “little weight” to the opinion of NP Cathey. (AR 22). The ALJ explained that NP Cathey's report was both unsupported by her treatment notes and inconsistent with Mr. Nunez' own testimony at the hearing. Id. In addition, the ALJ stated NP Cathey was “not an acceptable medical source” pursuant to the Social Security Act. Id. The ALJ similarly afforded the opinion of State Agency reviewing physician Mark Werner, M.D., “little weight, ” opining that the later opinion of State Agency reviewing physician Robert Weisberg, M.D., was more consistent with the record. Id. The ALJ therefore gave Dr. Weisberg's opinion “great weight, ” finding that his opinion was supported by the “longitudinal medical records.” Id.

         The ALJ also discussed Mr. Nunez' outpatient treatment notes and records from August 2015 to June 2017. (AR 20-21). In addition, the ALJ analyzed Mr. Nunez' testimony at the hearing and the third-party function report submitted by his wife, Paula Nunez. (AR 20-22). The ALJ credited Mrs. Nunez' third-party report “little weight, ” noting that it was submitted before Mr. Nunez' August 2016 shoulder surgery and Mrs. Nunez had a pecuniary interest in a finding of disability for her husband. (AR 22).

         After examining Mr. Nunez' medical reports and his testimony at the hearing, the ALJ found that Mr. Nunez is unable to perform any of his past relevant work and proceeded to step five of the SEP. (AR 23). At this step, the ALJ noted that Mr. Nunez was 48 years old on the alleged disability onset date, and therefore was classified as a “younger individual” in accordance with the Regulations. Id. However, Mr. Nunez subsequently changed age categories and is now correctly classified as an individual “closely approaching advanced age.” Id. The ALJ also determined that Mr. Nunez has at least a high school education and is able to communicate in English. Id.

         Further, the ALJ explained that if Mr. Nunez had the RFC to perform the full range of light work, a finding of not disabled would be directed by Medical-Vocational Rule 202.21. (AR 24). However, the ALJ found that Mr. Nunez' limitations impeded his ability to perform the full range of light work. Id. The ALJ therefore relied on the testimony of the VE to determine applicable jobs Mr. Nunez could perform in the national economy. Id. The ALJ noted that the VE testified at the hearing that an individual with Mr. Nunez' same age, education, work experience, and RFC could perform the jobs of sales attendant, furniture rental clerk, and information clerk. Id. After finding the VE's testimony consistent with the Dictionary of Occupational Titles, the ALJ adopted the testimony of the VE ...

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