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Laney v. Berryhill

United States District Court, D. New Mexico

February 12, 2019

NANETTE SUE LANEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          JERRY H. RITTER, U.S. MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff Nanette Sue Laney's Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum [Doc. 15], filed April 6, 2018. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to the undersigned Magistrate Judge to conduct dispositive proceedings in this matter, including entry of final judgment. [Docs. 3, 5, 7]. Having studied the parties' positions, the relevant law, and the relevant portions of the Administrative Record (“AR”), the Court grants Ms. Laney's Motion and remands this case for further administrative fact finding.

         I. INTRODUCTION

         Ms. Laney claims that she cannot work for a variety of health reasons. In reaching the opposite conclusion, the administrative law judge (“ALJ”) assigned to her case found that Ms. Laney retains the residual functional capacity (“RFC”) to perform work that exists in significant numbers in the national economy. In reaching this finding, the ALJ relied on the testimony of a vocational expert (“VE”), who described three jobs that Ms. Laney can allegedly perform despite her limitations. However, the ALJ failed to confirm that the VE's testimony was consistent with the Dictionary of Occupational Titles (“DOT”). This is important in this case because, where an inconsistency exists, the VE must explain how a person with the claimant's RFC can perform the described job. However, no such explanation was elicited by the ALJ in this case, and case law confirms that two of the three jobs the VE identified conflict with the ALJ's RFC finding. While the remaining job arguably fits within Ms. Laney's RFC, the Court cannot confidently say that it exists in “significant numbers in the national economy” under the facts of this case. As such, the Court has no choice but to reverse the ALJ's finding of nondisability, and remand this case for further administrative fact finding.

         II. BACKGROUND

         Ms. Laney filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act on August 26, 2013. AR at 170-176. As grounds, Ms. Laney alleged the disabling conditions of “severe chemical sensitivities (allergies to petroleum-based products), PTSD, back and neck injury, head injuries, chronically fatigued, Lyme disease, babesiosis, reactive airway disorder, [and] liver insufficiency.” AR at 171. Ms. Laney alleged that her conditions became severe enough to keep her from working on August 19, 2011. AR at 175. The Administration denied Ms. Laney's claim initially and upon reconsideration, and she requested a de novo hearing before an ALJ. AR at 69-117.

         ALJ Michelle Lindsay held a hearing on May 19, 2016. AR at 34-68. On September 29, 2016, the ALJ issued an unfavorable decision, finding that Ms. Laney has not been under a disability as defined in the Act from her alleged onset date through her last date insured. AR at 8-33. In response, Ms. Laney filed a Request for Review of Hearing Decision/Order on November 30, 2016. AR at 167-168. After reviewing her case, the Appeals Council denied Ms. Laney's request for review on September 7, 2017. AR at 1-3. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         A claimant seeking disability benefits must establish that 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 twelve months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).[1]

         At Step One of the sequential evaluation process, the ALJ found that Ms. Laney had not engaged in substantial gainful activity from her alleged onset date through her date last insured. AR at 13. At Step Two, she determined that Ms. Laney had the severe impairments of “Post Traumatic Stress Disorder (PTSD); depressive disorder; generalized anxiety disorder; history of tick borne illness; and chemical sensitivities.” AR at 13. At Step Three, the ALJ concluded that Ms. Laney's impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 14-17. Ms. Laney does not challenge these findings on appeal. [See Doc. 15].

         When a claimant does not meet a listed impairment, the ALJ must determine her RFC. 20 C.F.R. § 404.1520(e). “RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL 374184, at *2. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined that Ms. Laney retained the RFC to:

perform a full range of work at all exertional levels but with the following nonexertional limitations: she should have avoided more than occasional exposure to extreme heat, cold, wetness, and humidity. She should have avoided all exposure to fumes, odors, heavy concentration of dust or gases, or poor ventilation. She was able to understand, remember, and carry out simple instructions, and maintain attention and concentration to perform simple tasks for two hours without requiring redirection to the task. After a standard break she would have been able to attend and concentrate for two more hours, etc. throughout the workday. She should have had no more than occasional contact with the general public and only superficial interactions with supervisors and co-workers. She required work involving no more than occasional change in the routine work setting and no more than occasional independent goal setting or planning.

AR at 17.

         Employing this RFC at Steps Four and Five, and relying on the testimony of a VE, the ALJ determined that Ms. Laney could not have returned to her past relevant work as a tutor, work study coordinator, census worker, or public health educator. AR at 27. However, the ALJ, relying on the testimony of the VE, found that there were jobs that exist in “significant numbers” in the national economy that Ms. Laney could have performed despite her limitations. AR at 27-28. Specifically, the ALJ determined that Ms. Laney retained the functional capacity to work as an office helper (43, 000 jobs nationally), shipping and receiving weight clerk (32, 000 jobs nationally), or mail clerk (58, 000 jobs nationally) during the relevant time period. AR at 28. Accordingly, the ALJ determined that Ms. Laney was not disabled as defined in the Social Security Act from her alleged onset date through her date last insured and denied benefits. AR at 28.

         III. ...


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