United States District Court, D. New Mexico
GERMAINE A. HERRERA, ex rel. her deceased spouse, JOE P. HERRERA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
H. RITTER, UNITED STATES MAGISTRATE JUDGE
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,  the Court will grant Mrs. Herrera's
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.,
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
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.
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).
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. §§
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.
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.
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 ...