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Hays v. Social Security Administration

United States District Court, D. New Mexico

February 11, 2019

JOHNNA HAYS, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, NANCY BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 14) filed May 3, 2018, in support of Plaintiff Johnna Hays' (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits. On August 5, 2018, Plaintiff filed her Motion to Reverse or Remand. (Doc. 25.) The Commissioner filed a Response in opposition on October 5, 2018 (Doc. 27), and Plaintiff filed a Reply on October 15, 2018 (Doc. 28). 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 the Motion is well taken in part and recommends that it be GRANTED insofar as it seeks remand.

         I. Background and Procedural Record

         Plaintiff alleges that she was disabled for a closed period lasting from September 28, 2011, through August 1, 2016, because of mood disorder, posttraumatic stress disorder (PTSD), psychosis, major depressive disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD). (AR. 105, 525, 528, 777.) Plaintiff completed vocational school to become a licensed practical nurse, and she worked in that capacity from January 1996 until the alleged onset of her disability in September 2011. (AR. 87.) Plaintiff reported that she left work in 2011 because her employer learned that she was bipolar and began harassing her, which eventually led to a suspension, and after which she “had several drawbacks” related to her conditions that prevented her from returning to work. (AR. 577-78.) After her alleged onset date, Plaintiff returned to college and completed approximately one-half of a two-year program related to electronic health information. (AR. 579-80, 1419-20.) At the end of July 2016, Plaintiff resumed work part-time as a licensed practical nurse and, by September 2017, she had switched to a PRN schedule-meaning that Plaintiff's employer calls her as she is needed and, depending on how she feels, she accepts or declines the shift. (AR. 567, 584-85.)

         On June 6, 2012, Plaintiff protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401 et seq., and an application for supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (AR. 83.) Plaintiff's applications were initially denied on October 10, 2012, and they were denied upon reconsideration on December 20, 2012. (AR. 81-124.) On January 10, 2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) (Doc. 141), and on September 3, 2013, ALJ Ben Willner held a hearing. (AR. 26-39.) On February 24, 2014, ALJ Willner found that Plaintiff was not disabled under Section 1614(a)(3)(A) of the Act. (AR 38-39.) Plaintiff appealed ALJ Willner's decision, but the Appeals council denied her request for review. (AR 552.) Plaintiff then appealed the decision to this Court, and Magistrate Judge Steven Yarbrough remanded the matter to the Commissioner based upon ALJ Willner's failure to consider and explain the weight assigned to the opinion of Plaintiff's treating physician. (AR. 634-49.)

         On remand, on September 7, 2016, ALJ Lillian Richter held a hearing on Plaintiff's applications. (AR. 558.) Plaintiff appeared in person at the hearing with her attorney Jonathan Woods.[1] (AR. 560.) The ALJ took testimony from Plaintiff (AR 563-93), and from an impartial vocational expert (“VE”) Cornelius Ford (AR. 593-99). On May 11, 2017, ALJ Richter issued an unfavorable decision. (AR. 525-43.) That decision became the final agency decision from which Plaintiff now appeals. (AR. 506.) See 20 C.F.R. §§ 404.984(d), 416.1484(d).

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if 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) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[2] If the claimant is engaged in substantial gainful activity, he is not disabled regardless of his medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, he is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform his “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 [his physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(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, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the 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) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's 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); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the 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). A decision is based on substantial evidence where it is supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         II. Analysis

         At step five of the sequential evaluation, ALJ Richter determined that Plaintiff was not disabled. (AR 541-42.) Specifically, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2016. (AR. 528.) She found that Plaintiff did not engage in substantial gainful activity from the alleged onset date of disability, September 28, 2011, through the end of the requested closed period of disability, August 1, 2016. (Id.) The ALJ also found that Plaintiff had the following severe impairments: mood disorder, PTSD, psychosis, major depressive disorder, bipolar disorder, and ADHD. (Id.) She found that Plaintiff's impairments did not meet or equal the severity of one of the listings described in Appendix 1 of the regulations. (Id.) As such, she proceeded to step four and found that Plaintiff had the residual functional capacity to perform a limited range of medium work as defined in 20 C.F.R. Sections 404.1567(c)and 416.967(c). (AR. 529.) The ALJ added that

[s]pecifically, [Plaintiff] could lift, carry, push and pull up to 50 pounds occasionally and up to 25 pounds frequently, and she could stand for up to 6 hours and sit for up to 6 hours in an 8-hour workday. She was limited to frequent handling and fingering bilaterally and to occasional overhead reaching with the right upper extremity.[3] Additionally, she was limited to simple, routine and repetitive work, and to making simple work-related decisions in a workplace with few changes in the routine work setting. She was limited to occasional interaction with supervisors and incidental interaction with coworkers and members of the public. She could not work in tandem with other employees.

(AR. 529-30.) At step five, ALJ Richter determined that considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff could perform from the alleged onset date through August 1, 2016 and, therefore, Plaintiff was not disabled during that time frame. (AR. 541-42.)

         In support of her Motion, Plaintiff argues that (1) the ALJ's RFC analysis was flawed because she failed to properly weigh the testimony of Plaintiff's treating psychiatrist, Dr. Michael Sievert both as a matter of law (because she failed to employ the proper legal analysis) and as a matter of fact (because she failed to properly consider Plaintiff's treatment records) (Doc. 25 at 15-16; AR. 532); (2) the ALJ failed to properly weigh the opinions of Plaintiff's treating therapists, Jill Zomerhuis, LPAT, and John Rabka, M.A., LPCC (Doc. 25 at 17-18; AR. 535-36); (3) that the opinions of these treatment providers should have been weighed more heavily than that of psychological consultative examiner Dr. Davis Brimberg (AR 537; Doc. 25 at 22-23); and (4) the ALJ's findings regarding the intensity and persistence of Plaintiff's symptoms were improper because these findings were contradicted by substantial evidence (Doc. 25 at 18-22).

         For the reasons discussed below, the Court recommends that Plaintiff's motion be granted on the ground that the ALJ failed to apply the proper legal standards in her evaluation of the opinions of Plaintiff's treatment providers.

         A. Mental Health ...


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