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Wood v. Berryhill

United States District Court, D. New Mexico

February 6, 2019

KEVIN M. WOOD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand to Agency for Rehearing [Doc. 14] (“Motion”), filed on October 22, 2018. The Commissioner responded on December 18, 2018. [Doc. 15]. Plaintiff replied on January 15, 2019. [Doc. 17]. The parties have consented to my entering final judgment in this case. [Doc. 7]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that Plaintiff fails to meet his burden as the movant to show that the Administrative Law Judge (“ALJ”) did not apply the correct legal standards or that his decision was not supported by substantial evidence. Accordingly, the Motion will be denied and the Commissioner's final decision, affirmed.

         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). Courts must meticulously review the entire record, but may neither reweigh the evidence nor substitute their 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. The 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 a court may not re-weigh 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 [Commissioner]'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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (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 omitted).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant must establish that 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) he is not engaged in “substantial gainful activity”; and (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 (3) his impairment(s) either meet or equal one of the “Listings”[2] 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); Grogan, 399 F.3d at 1261. If he cannot show that his impairment meets or equals a Listing, but he proves that he is unable to perform his “past relevant work, ” the burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering his residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff was born on December 2, 1985. Tr. 430. He suffered a head injury during a snowboarding accident in 2006, which is the root of his allegedly disabling conditions. See Tr. 425. He applied for a period of disability, disability insurance benefits, and supplemental security income on December 21, 2009. Tr. 161, 165. Plaintiff originally alleged a disability onset date of May 1, 2009, but amended the date to January 20, 2008. Tr. 420. His claims have been denied three times by ALJs. Tr. 17-24 (first denial of January 19, 2012); Tr. 553-63 (second denial of May 11, 2015); Tr. 420-31 (third denial of March 30, 2017). This is his second appeal to this Court. See Tr. 531-45 (first federal court remand of March 28, 2014); Wood v. Colvin, No. 13-cv-0392 SMV (D.N.M. March 28, 2014) (unpublished).

         As is pertinent here, ALJ Eric Weiss held a third administrative hearing November 14, 2016, in Albuquerque, New Mexico. Tr. 442-73. Plaintiff appeared by video conference from Farmington, New Mexico, with his attorney. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Karen N. Provine. Id.

         The ALJ issued the third unfavorable ALJ decision on March 30, 2017. Tr. 420-31. At step one he found that Plaintiff had engaged in substantial gainful activity (“SGA”) between his alleged onset date of January 2008 through December 2009, but he had no SGA since that time. Tr. 423. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: “cognitive disorder, NOS, secondary to traumatic brain injury; mood disturbance secondary to traumatic brain injury[;] and attention deficit disorder without hyperactivity.” Id.

         At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 423-24. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 425-430. The ALJ found that Plaintiff had:

the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: He can understand, remember and carry out only simple instructions and make commensurate work-related decisions in a work setting with few if any changes. [Plaintiff] can frequently interact with supervisors, co-workers and the public. He is able to maintain concentration, persistence and pace during the workday with normal breaks.

Tr. 425.

         At step four the ALJ found that Plaintiff was unable to perform past relevant work as a water sales representative. Tr. 430. Accordingly, the ALJ went on to consider Plaintiff's RFC, age, education, work experience, and the testimony of the VE at step five. Tr. 430-31. He found that Plaintiff could perform work that exists in significant numbers in the national economy and, therefore, was not disabled. Id. The Appeals ...


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