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Romero v. Berryhill

United States District Court, D. New Mexico

June 3, 2019

ANDREW T. ROMERO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jerry H. Ritter, U.S. Magistrate Judge.

         This matter comes before the Court on Andrew T. Romero's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 16], filed November 13, 2018');">18. Having studied the parties' briefing and the relevant portions of the Administrative Record (“AR”), [1] the Court grants Mr. Romero's Motion, for the reasons set forth below.


         Mr. Romero's argument for reversal of the administrative law judge's (“ALJ”) decision in this case is a narrow one. Having found him to be disabled, Mr. Romero argues that, under the pertinent Social Security Ruling (“SSR”)[2] and case law, the ALJ was required to consult with a medical advisor to infer his disability onset date. [See generally Doc. 16]. The Commissioner disagrees, arguing that the ALJ reasonably determined Mr. Romero's onset date in the absence of a medical advisor. [See generally Doc. 18');">18]. Having studied the pertinent law and the ALJ's rationale for selecting the onset date that he did, the Court finds Mr. Romero to have the better argument.

         The ALJ based his finding of disability on the date of a consultative examination conducted by Eligio R. Padilla, Ph.D. Dr. Padilla determined that Mr. Romero's symptoms were disabling despite mental health treatment he was receiving. Mr. Romero argues, and the Court finds, that the ALJ's use of the date Mr. Romero was examined by Dr. Padilla as the date he became disabled is not supported by substantial evidence. Rather, where, as here, there was evidence of a potentially disabling condition prior to the date of the consultative examination, Mr. Romero's onset date was ambiguous. This being the case, the ALJ was obligated to employ the services of a medical advisor to determine Mr. Romero's onset date. Because he failed to do so, the ALJ's decision must be reversed and remanded for further proceedings.


         Mr. Romero filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on July 2, 2009. AR at 121-130. He initially alleged a disability onset date of February 1, 2007, due to back and leg injuries and psychological problems. AR at 144, 167. The Administration denied Mr. Romero's claims initially and upon reconsideration, and he requested a de novo hearing before an ALJ. AR at 66-88.

         ALJ Barry O'Melinn held a hearing at which Mr. Romero and a vocational expert testified on November 15, 2011. AR at 24-65. ALJ O'Melinn issued a decision denying Mr. Romero's claims on March 13, 2012. See AR at 10-19. The Appeals Council declined to review ALJ O'Melinn's decision, and it accordingly became the final decision of the Commissioner. AR at 1-5. Mr. Romero then filed a lawsuit challenging the Commissioner's decision in this Court, resulting in a remand on September 8, 2014. AR at 380-387.

         While his first civil action was pending, Mr. Romero filed a subsequent claim for Title XVI benefits on May 1, 2013. AR at 500-508. This application was also denied at the initial and reconsideration levels. AR at 365-366. However, on October 23, 2014, the Appeals Council issued an order consolidating the claim files and vacating the final decision of the Commissioner on the basis of the September 8, 2014 remand Order. AR at 388-392.

         ALJ O'Melinn held a second hearing on August 26, 2015. AR at 316-347. After this hearing, ALJ O'Melinn denied Mr. Romero's claim on October 19, 2015. AR at 286-315. Mr. Romero then filed a second civil action seeking the reversal of the ALJ's decision and, on March 10, 2017, this Court issued an Order remanding Mr. Romero's case to the Administration for further proceedings. AR at 1209-1225. While this action was pending Mr. Romero filed a third application for Title XVI benefits on February 3, 2016. As the case was previously remanded to ALJ O'Melinn, the Appeal Council remanded the case to a different ALJ on April 24, 2017. AR at 1206-1207.

         A third hearing on Mr. Romero's consolidated claims was held on November 28, 2017, before ALJ Eric Weiss (“the ALJ”). AR at 1057-1091. At this hearing Mr. Romero amended his alleged onset date to November 5, 2010. AR at 1060-1061. The ALJ issued a partially favorable decision on February 23, 2018');">18, finding Mr. Romero to be disabled as of June 20, 2016, but not before that date. See AR at 1014-1056. Pertinent here, the ALJ determined that Mr. Romero was “not under a disability within the meaning of the Social Security Act at any time through June 30, 2011, the date last insured.” AR at 1019. The Appeals Council did not assume jurisdiction over the case, and so ALJ Weiss' decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.984(d), 416.1484(d). 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 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). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).[3]

         At Step One of the sequential evaluation process, the ALJ found that Mr. Romero has not engaged in substantial gainful activity since his amended alleged onset date, November 5, 2010. AR at 1021. At Step Two, he determined that Mr. Romero has had the following severe impairments since his alleged onset Dated: “chronic obstructive pulmonary disease; lumbar osteoarthritis with radiculopathy; right hip degenerative joint disease; left foot 1st toe joint osteoarthritis; bilateral acromioclavicular joint arthritis; major depressive disorder; and personality disorder.” AR at 1021. At Step Three, the ALJ concluded that Mr. Romero's impairments do not meet or medically equal the regulatory “listings.” AR at 17-18');">18. Mr. Romero does not challenge these findings on appeal.

         When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 37418');">184, at *1. In this case, the ALJ determined that prior to June 20, 2016, Mr. Romero retained the RFC to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he was able to lift 20 pounds occasionally and lift and carry 10 pounds frequently and push and pull the same. He was able to walk and stand for 6 hours per 8 hour workday and sit for 6 hours per 8 hour workday with normally scheduled breaks. He was able to occasionally climb ramps and stairs but never climb ladders, ropes and scaffolds. He was able to occasionally balance, stoop, crouch, kneel and crawl. He was able to reach frequently. He had to avoid more than occasional exposure to protected heights and pulmonary irritants such as dust, fumes, odors and gases. He was able to understand, remember and carry out simple instructions and make commensurate work related decisions in a work setting with few, if any, changes and not at an assembly line rate pace. He was able to interact occasionally with supervisors, co-workers, and the public. He was able to maintain concentration, persistence and pace for two hours at a time during the workday with normally scheduled breaks.

AR at 1025. However, after June 20, 2016, the ALJ found that Mr. Romero's RFC would be further limited, resulting in a finding of disability. AR at 1042-1043. Specifically, the ALJ determined that, as of June 20, 2016, “due to physical and mental impairments, he will be off task more than one hour each workday in addition to normally scheduled breaks, and will be absent from the workplace 2 days each month.” AR at 1039. Relying on his RFC findings at Steps Four and Five, the ALJ determined that there were jobs that Mr. Romero could have performed prior to June 20, 2016, but that, as of that date, there were no jobs that exist in the national economy that Mr. Romero can perform. See AR at 1042-1043. Accordingly, the ALJ found that Mr. Romero was not disabled prior to June 20, 2016, but became disabled on that date. AR at 1043. As such, the ALJ found that Mr. Romero failed to ...

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