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Bisbee v. Berryhill

United States District Court, D. New Mexico

March 12, 2019

KATHLEEN MARIE BISBEE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 17], filed on December 7, 2018. The Commissioner responded on January 30, 2019. [Doc. 19]. Plaintiff replied on February 27, 2019. [Doc. 20]. The parties have consented to my entering final judgment in this case. [Doc. 8]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Appeals Council erred in failing to consider the report of Eligio R. Padilla, Ph.D. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (2018) (sentence four).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant 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), 1382c(a)(3)(A); see 20 C.F.R. §§ 404.1505(a), 416.905(a) (2019).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At the first four steps of the evaluation process, the claimant must show: (1) she is not engaged in “substantial gainful activity”; and (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) either meet or equal one of the “Listings”[1]of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i)-(iv), 416.920(a)(4)(i)-(iv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If she cannot show that her impairment meets or equals a Listing, but she proves that she is unable to perform her “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 her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff was born on November 22, 1970. Tr. 62. Her date-last-insured was June 30, 2017. Tr. 29. She alleges that she cannot work due to a combination of mental and physical problems. [Doc. 17] at 1. On July 1, 2014, Plaintiff applied for disability, disability insurance benefits, and supplemental security income. Tr. 27. Plaintiff alleged a disability-onset date of February 27, 2012, the date Plaintiff suffered injuries as a result of a car crash. Id.; [Doc. 17] at 7.

         ALJ James Bentley held a hearing on June 1, 2017, in Albuquerque, New Mexico.[2] Tr. 27. Plaintiff appeared in person at the hearing with her attorney. Tr. 46. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”). Id.

         The ALJ issued his partially favorable decision on June 30, 2017. Tr. 27-38. He found that Plaintiff was disabled beginning on January 18, 2017, but was not disabled prior to that date. Tr. 37-38. At step one, he found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Tr. 29. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: “degenerative disc disease, obesity, history of plantar fasciitis, degenerative joint disease of the bilateral knees, sciatica, and bilateral carpal tunnel syndrome.” Id. The ALJ also found that Plaintiff's anxiety, depression, and shoulder pain were not severe. Tr. 29-30.

         At step three, the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 30-31. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 31-35. The ALJ found that, prior to January 17, 2017, [3] Plaintiff

had the [RFC] to perform sedentary work as defined in 20 [C.F.R. §§] 404.1567(a) and 416.967(a) except she was unable to climb ladders, ropes, and scaffolds; she could occasionally balance, kneel, stoop, crouch, crawl, and climb ramps and stairs; she could frequently, but not constantly, handle and finger bilaterally; and she required a sit-stand option, defined as a brief positional change form [sic] sitting to standing and vice versa with no more than one change in position every 20 minutes and without leaving the work station so as not to diminish pace of production.

Tr. 31. The ALJ then found that, beginning on January 17, 2017, Plaintiff

has the [RFC] to perform sedentary work, as defined in 20 [C.F.R. ยงยง] 404.1567(a) and 416.967(a) except she is unable to climb ladders, ropes, and scaffolds; she can occasionally balance, kneel, stoop, crouch, crawl, and climb ramps and stairs; she can frequently, but not constantly, handle and finger bilaterally; and she requires a sit-stand option, defined as a brief positional change form [sic] sitting to standing and vice versa with no more than one change in position every 20 minutes and without leaving the work station so as not to ...

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