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Mares v. Berryhill

United States District Court, D. New Mexico

March 7, 2019

LAZARO MARES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 19) filed on June 6, 2018. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 6, 7, 8. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is not well-taken and will be denied.

         I. Procedural History

         On January 18, 2011, Mr. Lazaro Mares (“Plaintiff”) protectively filed an application with the Social Security Administration for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. Administrative Record[1] (AR) at 175, 252. Plaintiff alleged a disability onset date of October 13, 2010. AR at 252. Disability Determination Services (“DDS”) determined that Plaintiff was not disabled both initially (AR at 175-76) and on reconsideration (AR at 177-86). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of his SSI application. AR at 200.

         Both Plaintiff and a vocational expert (“VE”) testified during the de novo hearing. See AR at 146-74. ALJ Ann Farris issued an unfavorable decision on September 13, 2013. AR at 122-31. Plaintiff submitted a request for review to the Appeals Council (AR at 117), along with additional evidence (AR at 7). The Council denied review on March 31, 2015 (AR at 1-6) making the ALJ's decision the final decision of the Commissioner (Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003)).

         On May 14, 2015, Plaintiff filed a Complaint in federal court. AR at 950-51. Judge Vidmar granted Plaintiff's Motion to Reverse and Remand for Rehearing with Supporting Memorandum on July 25, 2016, finding that the ALJ failed to apply the correct legal standards in evaluating the opinions of Plaintiff's treating physician, Dr. Zieser, and that the ALJ's one reason for rejecting Dr. Zieser's opinion was not supported by substantial evidence. AR at 952-68.

         Plaintiff filed a subsequent application for Title XVI SSI on May 7, 2015, again alleging a disability onset date of October 13, 2010. AR at 980, 1128. DDS again determined that Plaintiff was not disabled both initially (AR at 980-90) and on reconsideration (AR at 991-1004). Plaintiff requested a hearing with an ALJ (AR at 1079-81). In light of Judge Vidmar's Order of Remand on Plaintiff's first application, the Appeals Council ordered the ALJ to consolidate the claims on both applications and issue a new decision, after a new hearing, on the consolidated claims. AR at 973-74.

         ALJ Farris held a second de novo hearing on September 21, 2017 at which both Plaintiff and a VE testified. AR at 897- 924. On November 2, 2017, ALJ Ann Farris issued a partially favorable decision, finding Plaintiff disabled as of June 1, 2015. AR at 869-79. On this remanded case, Plaintiff did not file exceptions disagreeing with the ALJ's decision, and the Appeals Council did not assume jurisdiction within 60 days of the date of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 416.1484.

         II. The ALJ's Findings and Applicable Law

         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); see also 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) he is not engaged in “substantial gainful activity”; (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) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (“RFC”), he is unable to perform his past relevant work. 20 C.F.R. § 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of his medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20 C.F.R. § 416.945(a)(1). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient . . . RFC to perform work in the national economy, given his age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. § 416.920(a)(4)(v).

         At Step One of the process, ALJ Farris found that Plaintiff “has not engaged in substantial gainful activity since the alleged onset date.” AR at 871 (citing 20 C.F.R. § 416.971). At Step Two, the ALJ concluded that “[s]ince the alleged onset date of disability, October 13, 2010, [Plaintiff] has had the following severe impairments: obesity, asthma, and degenerative disc disease with mild scoliosis.” AR at 871. The ALJ further concluded that, “[b]eginning on the established onset date of disability, June 1, 2015, [Plaintiff] has had the follow severe impairments: obesity, asthma, degenerative disc disease with cervical stenosis, and carpal-tunnel syndrome.” AR at 871 (citing 20 C.F.R. § 416.920 (c)). The ALJ found three of Plaintiff's impairments, diabetes, depressions, and GERD, to be non-severe. AR at 872.

         At Step Three, the ALJ found that “since the alleged onset date of disability, October 13, 2010, [Plaintiff] has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 872 (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926). In making her determination, ALJ Farris considered Listings 1.04 (disorders of the spine) and 3.03 (asthma). AR at 872. She also considered the effects of obesity combined with other medically determinable impairments including musculoskeletal, respiratory, and cardiovascular under Listings 1.00Q, 3.00L, and 4.00F. AR at 873.

         In determining Plaintiff's RFC, ALJ Farris found that while Plaintiff's “medically determinable impairments might be expected to cause the alleged symptoms[, ] . . . [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not supported prior to June 1, 2015.” AR at 876. The ALJ considered the evidence of record as well as statements by Plaintiff and his mother and the opinions of Plaintiff's treating and consultative physicians. AR at 873-76. Ultimately, the ALJ found that, prior to June 1, 2015, Plaintiff had the residual functional capacity

to lift no more than 10 pounds at a time, sit for approximately six hours in an eight-hour workday and stand or walk for no more than two hours in an eight-hour workday. He could occasionally balance, stoop and climb stairs but never kneel, crouch or crawl. He needed to avoid environmental hazards such as unprotected heights and could have only moderate exposure to pulmonary irritants. He could have occasional interaction with the public. [The ALJ found] that this is a limited range of work contained in the sedentary exertional levels as defined by 20 C.F.R. § 404.156, 20 C.F.R. § 416.967 and SSR 83-10.

AR at 873. ALJ Farris further found that, beginning on June 1, 2015, Plaintiff has the residual functional capacity

to lift no more than 10 pounds at a time, sit for approximately six hours in an eight-hour workday and stand/ walk for less than two hours in an eight-hour workday. He can occasionally balance, stoop and climb stairs but never kneel, crouch or crawl. He can occasionally handle and finger. He should avoid environmental hazards such as unprotected heights and can have only moderate exposure to pulmonary irritants. [Plaintiff] can have occasional interaction with the public and requires the option to alternate between sitting and standing at will. [The ALJ found] that this is a limited range of work contained in the sedentary exertional level as defined by 20 C.F.R. § 404.156, 20 C.F.R. § 416.967 and SSR 83-10.

AR at 876.

         At Step Four, ALJ Farris concluded that Plaintiff has been unable to perform any past relevant work since his alleged disability onset date of October 13, 2010. AR at 877 (citing 20 C.F.R. § 416.965). At Step Five, the ALJ found that, prior to June 1, 2015, Plaintiff was able to perform work as a table worker, document preparer, and addresser. AR at 878. But, beginning on June 1, 2015, the ALJ found that “there are no jobs that exist in significant numbers in the national economy that the claimant can perform.” AR at 878 (citing 20 C.F.R. §§ 416.960(c), 416.966). The ALJ ultimately determined that Plaintiff “was not disabled prior to June 1, 2015, but became disabled on that date and has continued to be disabled through the date of this decision.” AR at 879 (citing 20 C.F.R. § 416.920(g)).

         III. Legal ...


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