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Brand v. Berryhill

United States District Court, D. New Mexico

March 6, 2019

CAROL BRAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON MOTION TO REVERSE AND REMAND

          LAURA FASHING, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on plaintiff Carol Brand's Motion to Reverse o Remand (Doc. 19), which was fully briefed on October 1, 2018. See Docs. 21, 22, 23. Pursuan to 28 U.S.C. § 636, the Honorable Chief District Judge William P. Johnson referred this matter to me for a recommended disposition. Doc. 9. Having meticulously reviewed the entire record and being fully advised in the premises, I recommend that the Court GRANT Ms. Brand's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision 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 support 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). “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 and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its 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. A 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 the Court may not reweigh 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 ALJ'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) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the Listings[1] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Ms. Brand was born in 1960, completed two years of college, and worked for approximately 13 years as a receptionist in an optometry office. AR 179, 184.[2] Ms. Brand filed an application for disability insurance benefits on December 11, 2014-alleging disability since June 14, 2011 due to a brain injury, short-term memory loss, and diabetes. AR 158-64, 183. The Social Security Administration (“SSA”) denied her claims initially on April 2, 2015. AR 88-92. The SSA denied her claims on reconsideration on July 21, 2015. AR 80-86. Ms. Brand requested a hearing before an ALJ. AR 103-04. On December 14, 2016, ALJ Ann Farris held a hearing. AR 42-71. ALJ Farris issued her unfavorable decision on April 5, 2017. AR 20-36.

         At step one, the ALJ found that Ms. Brand had not engaged in substantial, gainful activity since June 14, 2011, her alleged onset date, through her date last insured, December 31, 2011. AR 25. At step two, the ALJ found that Ms. Brand had the following medically determinable impairments: superior sagittal sinus thrombosis, [3] and diabetes mellitus type 2. AR 26. The ALJ found, however, that Ms. Brand did not have “an impairment or combination of impairments that significantly limited [her] ability to perform basic work-related activities for 12 consecutive months” and, therefore, “did not have a severe impairment or combination of impairments.” Id. The ALJ denied Ms. Brand's claim at step two and did not complete the rest of the sequential evaluation process.

         Ms. Brand requested review by the Appeals Council. AR 153. The Appeals Council granted review to address the ALJ's failure to address the November 23, 2016 medical source statement from Dr. Louise McDade. AR 154-57. Ms. Brand submitted additional briefing and correspondence to the Appeals Council, as well as a June 8, 2017 medical source statement from clinical neuropsychologist Dr. Sandra Montoya. AR 8-16, 264-68. On October 31, 2017, the Appeals Council issued its unfavorable decision. AR 1-6. The Appeals Council gave “little weight” to the opinion of Dr. Louise McDade-finding her opinion inconsistent with her objective findings during the relevant time period. AR 5. The Appeals Council gave no weight to Dr. Sandra Montoya's opinion, finding that the opinion “does not relate to the period at issue.” AR 4. The Appeals Council adopted the ALJ's finding that that Ms. Brand did not have a severe impairment prior to her date last insured. AR 5.

         Ms. Brand timely appealed to this Court on December 7, 2017. Doc. 1.

         IV. Ms. Brand's Claims

         Ms. Brand argues that the ALJ and the Appeals Council erred in finding that she did not meet her de minimis burden of proof at step two. Specifically, she argues that (1) the ALJ failed to properly weigh the opinion of treating physician Dr. Adolfo Sanchez; (2) the ALJ and Appeals Council failed to properly weigh the opinion of treating physician Dr. Louise McDade; (3) the Appeals Council failed to properly weigh the opinion of neuropsychologist Dr. Sandra Montoya; and (4) the ALJ failed to discuss her cervical degenerative disease, or to explain why this impairment was not severe. Doc. 19 at 10-15.

         Because I remand based on Ms. Brand's broader argument that the ALJ and the Appeals Council erred in finding she did not meet the de minimis standard of proof at step two, I do not address the other alleged errors, which “may be affected by the ALJ's treatment of this case ...


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