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Herrera v. Berryhill

United States District Court, D. New Mexico

March 4, 2019

GERMAINE A. HERRERA, ex rel. her deceased spouse, JOE P. HERRERA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This matter comes before the Court on Plaintiff Germaine A. Herrera's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 18], filed June 15, 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 and enter final judgment. [Docs. 5, 6, 7]. Having reviewed the parties' submissions, the relevant law, and the relevant portions of the Administrative Record, [1] the Court will grant Mrs. Herrera's Motion.


         The claimant in this social security disability appeal, Joe P. Herrera, was awarded benefits by the Administrative Law Judge (“ALJ”), below. However, the ALJ's decision was only “partially favorable, ” insofar as the ALJ determined that Mr. Herrera became presumptively disabled on December 23, 2013, but not prior to that date. See AR at 27-43. In reaching this conclusion, the ALJ relied on the opinions of a medical consultant, Jack Bentham, Ph.D., [2] who in turn based his opinions on the diagnoses and opinions of one of Mr. Herrera's treating psychiatrists, Richard Laughter, M.D. AR at 42. Most basically, Dr. Bentham, relying on Dr. Laughter's diagnoses, opined that Mr. Herrera met a listing as of December 23, 2013, due to his diagnosis of Post-Traumatic Stress Disorder (“PTSD”). See AR at 41-42, 153. However, in finding that Mr. Herrera had no mental limitations prior to December 23, 2013, the ALJ rejected the opinions and diagnoses of Mr. Herrera's treating psychiatrist, Edward Gilmour, M.D., who diagnosed this very condition nearly two years earlier. Mrs. Herrera argues that the ALJ's reasons for rejecting Dr. Gilmour's opinions and diagnoses are unsupported by law and substantial evidence, and this Court agrees. Therefore, the Court has no choice but to reverse the ALJ's determination that Mr. Herrera was not disabled prior to December 23, 2013, and remand this case for further administrative proceedings.


         Mr. Herrera filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on April 6, 2010. AR at 370-384. Mr. Herrera alleged a disability onset date of June 30, 2008, AR at 370, due to diabetes; chronic pain in ankles, knees and hips; and depression. AR at 201. The Administration denied Mr. Herrera's claims initially and upon reconsideration, and he requested a de novo hearing before an Administrative Law Judge (“ALJ”). AR at 172-195.

         ALJ Miriam Fernandez Rice held a hearing on March 15, 2012 and issued an unfavorable decision on April 27, 2012. See AR at 51-82; 178-190. After Mr. Herrera requested review of ALJ Rice's decision, AR at 270, the Appeals Council remanded his case to another ALJ to, among other things, reassess the weight ascribed to Dr. Gilmour's opinions. See AR at 197-198. On remand, ALJ Michael Hertzig (“the ALJ”) convened a second hearing on March 31, 2014, but ultimately continued it because Mr. Herrera submitted additional medical records. See AR at 112. Finally, the ALJ held a hearing on December 2, 2014, at which Mr. Herrera, a Vocational Expert (“VE”), and two Medical Experts, including Dr. Bentham, testified. AR at 114-171. Thereafter, the ALJ issued a partially favorable decision on February 20, 2015. AR at 27-43. Mr. Herrera requested review of the ALJ's decision by the Appeals Council, but on August 25, 2017, the Council denied his request for review. AR at 1-7. 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 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); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).[3]

         At Step One of the sequential evaluation process, the ALJ found that Mr. Herrera had not engaged in substantial gainful activity since his alleged onset date. AR at 34. At Step Two, he determined that Mr. Herrera had the following severe impairments through December 23, 2013: “diabetes mellitus and peripheral neuropathy.” AR at 34. The ALJ also found that Mr. Herrera had the non-severe impairment of substance abuse. AR at 34. However, the ALJ added Post-Traumatic Stress Disorder (“PTSD”) to Mr. Herrera's severe impairments as of the “established onset date of disability” (December 23, 2013). AR at 34. At Step Three, the ALJ concluded that Mr. Herrera's impairments did not meet or medically equal the regulatory “listings” prior to December 23, 2013, but that he met Listing 12.06 on and after that date. AR at 34, 41-42.

         When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). “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 prior to December 23, 2013, Mr. Herrera retained the RFC to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he can lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand/walk for 4 hours in an 8-hour workday; can sit 6 hours in an 8-hour workday; can never climb ladders, ropes, and scaffolds; can frequently climb ramps and stairs; can frequently balance, stoop, kneel, crouch, and crawl; can tolerate frequent exposure to cold and heat extremes; can frequently ambulate on uneven terrain; and can do no work at unprotected heights.

AR at 35. Employing this RFC at Steps Four and Five, and relying on the testimony of the VE, the ALJ determined that Mr. Herrera cannot return to his past relevant work. AR at 40. However, the ALJ determined that there were other jobs that exist in significant numbers in the national economy that Mr. Herrera could have performed before he became disabled. AR at 40-41. Specifically, the ALJ determined that Mr. Herrera retained the capacity to work as an addresser, toy stuffer, order clerk, final assembler, rhinestone setter, and stone setter. AR at 40-41. Accordingly, the ALJ determined that Mr. Herrera was not under a disability as defined by the Social Security Act from his alleged onset date to December 23, 2013, and denied benefits for that time period. AR at 31.


         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “[T]he agency's ‘failure to apply the correct legal standards, or to show [the Court] that it has done so' is ‘grounds for reversal.'” Bryant v. Comm'r, SSA, --- F. App'x, ----, 2018 WL 6133387, at *2 (10th Cir. Nov. 23, 2018) (unpublished) (quoting Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)). “Moreover, all the ALJ's required findings must be supported by substantial evidence.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (quoted authority omitted). Thus, although the Court may ...

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