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Olguin v. Berryhill

United States District Court, D. New Mexico

February 27, 2019

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



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse or Remand the Administrative Decision [Doc. 18] and his Memorandum Brief in Support [Doc. 19] (collectively, “Motion”), filed on October 30, 2018. The Commissioner responded on December 31, 2018. [Doc. 21]. Plaintiff replied on January 22, 2019. [Doc. 22]. The parties have consented to my entering final judgment in this case. [Doc. 11]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) erred in failing to obtain a consultative examination (“CE”) to assess the extent of Plaintiff's alleged cognitive impairment. Accordingly, the Motion will be GRANTED, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (2018) (sentence four).

         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 21, 1965. Tr. 196. He alleges that he cannot work due to a combination of mental and physical problems. On May 28, 2014, Plaintiff applied for a period of disability and disability insurance benefits. Tr. 196. He then applied for supplemental security income on July 28, 2014. Tr. 198. Plaintiff alleged a disability-onset date of November 28, 2013. Tr. 196, 198.

         ALJ Doug Gabbard, II, held a hearing on December 20, 2016, in McAlester, Oklahoma. Tr. 10, 43. In advance of the hearing, Plaintiff's attorney submitted a thorough brief and written request for a consultative psychological examination. Tr. 371-86. Counsel specifically requested IQ testing to determine the extent of Plaintiff's cognitive impairment. Id. It does not appear that the ALJ ever ruled on the request, but in any event, the ALJ did not order a CE.

         Plaintiff appeared at the hearing as scheduled by video conference from Albuquerque, New Mexico, with his attorney. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Diana L. Kizer, who testified in person in McAlester. Tr. 43.

         The ALJ issued his unfavorable decision on February 14, 2017. Tr. 10-24. At step one he found that Plaintiff had not engaged in substantial gainful activity (“SGA”) since his alleged onset date. Tr. 12. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: “status post light pelvis fracture, phlebitis, depression, posttraumatic stress disorder (PTSD), and substance addiction disorder (alcohol).” Id. The ALJ also found that Plaintiff's hypertension, hypothyroidism, cellulitis of the left food, ...

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