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Lopez v. Berryhill

United States District Court, D. New Mexico

April 15, 2019

LAURALEE EMMA LOPEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JERRY H. RITTER, U.S. MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff Lauralee Emma Lopez' Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 16], filed July 27, 2018. Pursuant to 28 U.S.C. § 636(b), this matter has been referred to the undersigned Magistrate Judge for a recommended disposition. [Doc. 17]. Having studied the parties' submissions, the relevant law, and the relevant portions of the Administrative Record (“AR”), [1] the Court recommends that Ms. Lopez' Motion be granted for the reasons set forth below.

         I) INTRODUCTION

         The Commissioner sought the expertise of a consultative mental examiner when deciding (and ultimately denying) Ms. Lopez' claim. This consultative examiner assessed several moderate mental limitations that would affect Ms. Lopez' work-related mental functioning. The Commissioner's Administrative Law Judge (“ALJ”) gave these findings “great weight” yet omitted them from Ms. Lopez' residual functional capacity (“RFC”), without explanation. However, case law is clear that the Commissioner may not omit uncontroverted moderate mental limitations identified by a psychiatrist or psychologist when formulating a claimant's RFC. As such, the Court has no choice but to recommend that the Commissioner's decision in this case be reversed and remanded for further administrative review. This is not to say that Ms. Lopez deserves benefits. On remand the Commissioner may still conclude that she retains the RFC to perform work which exists in the national economy. However, without the correct analysis, the Court cannot confidently say that Ms. Lopez' RFC should not be more restrictive than was found here.

         II) BACKGROUND

         Ms. Lopez filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act on January 22, 2015. AR at 190-196. As grounds, Ms. Lopez alleged back problems, depression, and a blood infection. AR at 220. Ms. Lopez alleged that her conditions became severe enough to keep her from working on December 19, 2014. AR at 220. The Administration denied Ms. Lopez' claim initially and upon reconsideration, and she requested a de novo hearing before an ALJ. AR at 93-134.

         ALJ Raul Pardo (“the ALJ”) held an evidentiary hearing on February 15, 2017. AR at 61-92. On April 19, 2017, the ALJ issued an unfavorable decision, finding that Ms. Lopez has not been under a disability from her alleged onset date through the date of his decision. AR at 44-56. In response, Ms. Lopez filed a “Request for Review of Hearing Decision/Order” on April 21, 2017. AR at 187-189. After reviewing her case, the Appeals Council denied Ms. Lopez' request for review on January 12, 2018. AR at 1-6. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         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); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).[2]

         At Step One of the sequential evaluation process, the ALJ found that Ms. Lopez has not engaged in substantial gainful activity since her alleged onset date. AR at 46. At Step Two, he determined that Ms. Lopez has the severe impairments of “status post blood infection, status post vertebral osteomyelitis, obesity, and depression.” AR at 46. At Step Three, the ALJ concluded that Ms. Lopez' impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 47-49. Ms. Lopez does not challenge these findings on appeal. [See Docs. 16, 20].

         When a claimant does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). “RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL 374184, at *2. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined that Ms. Lopez retains the RFC to:

lift and/or carry twenty pounds occasionally and ten pounds frequently. The claimant can stand and/or walk for six hours out of an eight-hour workday with normal breaks. The claimant can sit for six hours out of an eight-hour workday with normal breaks. The claimant can push and/or pull twenty pounds occasionally and ten pounds frequently. She can occasionally climb ramps and stairs, but can never climb ladders, ropes, or scaffolds. She can only occasionally balance and stoop. She is limited to simple, routine tasks. Any time off task can be accommodated by normal breaks. I find that these limitations represent a limited range of work at the light exertional level as defined in 20 CFR 404.1567(b).

AR at 49.

         Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational Expert (“VE”), the ALJ determined that Ms. Lopez is unable to return to her past relevant work as a customer service representative or a child monitor. AR at 54. However, the ALJ determined that there is work that Ms. Lopez can perform that exists in the national economy, despite her limitations. AR at 55. Specifically, the ALJ determined that Ms. Lopez retains the functional capacity to work as an office helper or a hand presser. AR at 55. Accordingly, the ALJ determined that Ms. Lopez is not disabled as defined in the Social Security Act and denied benefits. AR at 56.

         III) ...


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