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Meloy v. Berryhill

United States District Court, D. New Mexico

March 9, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.


         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand to Agency for Rehearing, with Supporting Memorandum (Doc. 16), filed on October 15, 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. 3, 5, 6. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted.

         I. Procedural History

         Ms. Allison Meloy (Plaintiff) protectively filed an application with the Social Security Administration for Disability Insurance Benefits (DIB) under Title II of the Social Security Act on December 12, 2013. See Administrative Record[1] (AR) at 182, 255-61. Plaintiff alleged a disability onset date of July 1, 2006. See AR at 255. Because Plaintiff's earning record showed that she had “acquired sufficient quarters of coverage to remain insured through December 31, 2013[, ]” she was required to “establish disability on or before that date in order to be entitled to a period of disability and [DIB].” AR at 12.

         Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 174-82) and on reconsideration (AR at 183-92). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of her application. AR at 203. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 113-73. ALJ Cole Gerstner issued an unfavorable decision on October 19, 2016. AR at 9-31. Plaintiff submitted a Request for Review of ALJ Decision to the Appeals Council (AR at 253-54), which the council denied on February 22, 2018 (AR at 1-6). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         II. Applicable Law and the ALJ's Findings

         A claimant seeking disability benefits must establish that 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(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) she is not engaged in “substantial gainful activity”; (2) she 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) her 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), she is unable to perform her past relevant work. 20 C.F.R § 404.1520(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 her medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(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. § 404.1520(a)(4)(v).

         At Step One of the process, [2] ALJ Gerstner found that while Plaintiff worked in several part-time positions from 2006-2010 and made two “unsuccessful work attempts” in 2012-2013, she “did not engage in substantial gainful activity since July 1, 2006, the alleged onset date.” AR at 14 (citing 20 C.F.R. §§ 404.1571-1576). At Step Two, the ALJ concluded that Plaintiff “had the following severe impairments: ulcerative colitis; migraine headaches; eczema; and depression.” AR at 14 (citing 20 C.F.R. § 404.1520(c)). ALJ Gerstner also noted that Plaintiff's “asthma was a ‘non-severe' impairment” because “[t]here [was] no evidence that [her] asthma was greater than a slight abnormality or that it resulted in more than a minimal effect on [her] ability to perform basic work activities during the” relevant time period. AR at 15.

         At Step Three, the ALJ found that Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 15 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). Ultimately, the ALJ found that through the date last insured, Plaintiff had the [RFC] to perform a limited range of light work as defined in 20 [C.F.R. §] 404.1567(b) as follows:

• [She] was able to lift and/or carry no more than 20 pounds occasionally and 10 pounds frequently;
• [She] was able to stand and/or walk and sit for approximately six hours in an eight-hour workday;
• [She] was able to perform pushing and pulling from a seated position within the above weight restrictions; and
• [She] would be able to understand, remember, and carry out simple, routine, and repetitive tasks and make simple work-related decisions.

AR at 17. The ALJ further determined that, through the date last insured, Plaintiff could not perform her past relevant work, but she could perform the jobs of cashier II, mail sorter, and furniture rental clerk. AR at 24-25. Ultimately, the ALJ found that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from July 1, 2006, through December 31, 2013, the date last insured.” AR at 26 (citing 20 C.F.R. § 404.1520(g)).

         III. Legal Standard

         The Court must “review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (10th Cir. 2012) (citation omitted).

         “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. Discussion

         Plaintiff contends that the following issues require reversal: (1) the ALJ did not properly evaluate Plaintiff's subjective complaints pursuant to SSR 16-3p; (2) the ALJ did not adequately assess the opinion of Dr. Michael Gavin, M.D.; (3) the ALJ misstated the VE's testimony about the number of days Plaintiff could miss in a month; and (4) the ALJ failed to resolve conflict between the VE's testimony and the requirements of the jobs the ALJ found Plaintiff could perform. Doc. 16 at 3-16.

         A. The ALJ's evaluation of Plaintiff's subjective complaints is supported by substantial evidence.

         Social Security Ruling 16-3p defines the two-step process an ALJ must use to evaluate a claimant's symptoms. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). At the first step, the ALJ “consider[s] whether there is an underlying medically determinable physical or mental impairment[] that could reasonably be expected to produce [the] individual's symptoms, such as pain.” Id. at *3. At the second step, after the ALJ has found such an impairment, the ALJ “evaluate[s] the intensity and persistence of those symptoms to determine the extent to which the symptoms limit [the] individual's ability to perform work-related activities . . . .” Id.

As part of the step two evaluation, the ALJ considers the record evidence, the claimant's statements, medical and non-medical source statements, and the non-exhaustive list of factors in ...

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