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Chavez v. Berryhill

United States District Court, D. New Mexico

March 7, 2019

MANUEL T. CHAVEZ, Sr., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.


          STEPHAN M. VIDMAR United States Magistrate Judge Presiding by Consent

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 17], filed on October 5, 2018. Defendant responded on January 7, 2019. [Doc. 22]. Plaintiff replied on February 4, 2019. [Doc. 25]. The parties have consented to my entering final judgment in this case. [Doc. 9]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) did not apply the correct legal standards in evaluating Dr. Gucker's opinion. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (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 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 [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) (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

         This is Plaintiff's second appeal to this Court. He originally applied for a period of disability, disability insurance benefits, and supplemental security income on November 14, 2011. Tr. 41. He alleged a disability-onset date of September 1, 2009. Id. Plaintiff's claims were denied initially and on reconsideration.

         ALJ Barry O'Melinn held the first administrative hearing on January 7, 2014, in Albuquerque, New Mexico. Tr. 41, 58-88. He then issued the first unfavorable decision on February 14, 2014. Tr. 53. The Appeals Council denied review, Tr. 15-19, and in federal court, on recommendation by the magistrate judge, the ALJ's decision was reversed and the case was remanded for further proceedings, Chavez v. Colvin, No. 15-cv-0734 JAP/KK, [Doc. 43] (D.N.M. Dec. 13, 2016) (unpublished).

         On remand, the Appeals Council instructed the ALJ to consolidate Plaintiff's claims with those subsequently filed on October 30, 2015. Tr. 686. ALJ Ben Ballengee held the second administrative hearing on September 13, 2017, in Albuquerque, New Mexico. Tr. 574, 597-640. Plaintiff appeared in person with his attorney. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Karen Provine. Tr. 597-640.

         The ALJ issued the second unfavorable decision on January 25, 2018. Tr. 574-89. He found that Plaintiff met the insured-status requirement through March 31, 2014. Tr. 576. Then, at step one he found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Id. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: diabetes mellitus, diabetic peripheral neuropathy, obesity, and depression with psychotic features. Tr. 577. The ALJ also found that Plaintiff's hypertension, hyperlipidemia, gastroesophageal reflux disease, and history of alcohol and drug abuse did not qualify as “severe.” Tr. 578. He further found that any head injury, post-traumatic stress disorder, spine impairment, or elbow impairment failed to qualify as “medically determinable impairments.” Id.

         At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 579-80. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 580-87. The ALJ found that Plaintiff had:

the [RFC] to perform light work as defined at 20 [C.F.R. §§ 404.1567(b), 416.967(b), and Social Security Ruling] 83-10, except that he can occasionally climb ramps and stairs. He can never climb ladders, ropes, or scaffolds. He can occasionally stoop, kneel, crouch, and crawl. He can occasionally be exposed to unprotected heights and moving mechanical parts. Mentally, he is limited to performing simple, routine tasks. In the use of judgment, he is limited to simple work-related decisions. He can frequently interact appropriately with supervisors and coworkers. He can frequently engage in contact with the public. He can adapt to occasional changes in a routine work setting.

Tr. 580-81.

         At step four the ALJ found that Plaintiff was unable to perform past relevant work as a dry-wall applicator, carpenter, or construction worker I. Tr. 587. Accordingly, the ALJ went on to consider Plaintiff's RFC, age, education, work experience, and the testimony of the VE at step five. Tr. 588-89. He found that Plaintiff could perform work that exists in significant numbers in the national economy and, therefore, was not disabled. Id. Because this case had been remanded by the federal court once before, Plaintiff was not required file written exceptions with the Appeals Council. See 20 C.F.R. § 404.984. Instead, Plaintiff timely appealed directly to this Court on May 24, 2018. [Doc. 1].


         Remand is warranted because the ALJ erred in failing to explain why he rejected Dr. Gucker's assessments of certain moderate limitations. Because proper evaluation of Dr. Gucker's opinion may render moot Plaintiff's other alleged errors, the Court declines to pass on them at this time.

         I. The ALJ failed to apply the correct legal standard in evaluating the non-examining opinion of Dr. Gucker.

         Although ALJs need not discuss every piece of evidence, they are required to discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)[3]). That is, when assessing a plaintiff's RFC, an ALJ must explain what weight she assigns to each opinion and why. Id. “[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on [a specific] functional capacity . . . because the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (alteration and quotation marks omitted)); see Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (same). Nevertheless, “[a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.” Chapo, 682 F.3d at 1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). ALJs are required to provide “appropriate explanations for accepting or rejecting such opinions.” Social Security Ruling (“SSR”) 96-5p, 1996 WL 374183, at *5 (emphasis added); see Keyes-Zachary, 695 F.3d at 1161 (same) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 SSR LEXIS 5, at *20, 1996 WL 374184, at *7. The ALJ's reasons must be specific and legitimate. Chapo, 682 F.3d at 1291.

         Dr. Gucker offered a non-examining opinion that Plaintiff had moderate limitations in the following areas:

• The ability to remember locations and work-like procedures;
• The ability to understand and remember very short and simple instructions; • The ability to carry out very ...

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