United States District Court, D. New Mexico
ANDREW T. ROMERO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
H. Ritter, U.S. Magistrate Judge.
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”),
Court grants Mr. Romero's Motion, for
the reasons set forth below.
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”) 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.
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.
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.
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.
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.
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
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).
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. §§
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.
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 ...