Holder v. Berryhill

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on plaintiff Larry Holder's Substitute Motion to Reverse and/or Remand (Doc. 25), which was fully briefed on November 20, 2018. See Docs. 26, 27, 28.^[1] The parties consented to my entering final judgment in this case. Docs. 9, 10, 11. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Appeals Council erred by failing to consider the additional evidence submitted by Mr. Holder. I therefore GRANT Mr. Holder's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

          The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity”; (2) the claimant 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) the impairment(s) either meet or equal one of the Listings^[2] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Mr. Holder was born in 1964, completed the tenth grade, and worked for approximately 14 years as a carpet installer, for approximately seven months as a fiberglass finisher, and for six months as a maintenance person. AR 54, 65, 82, 190, 242.^[3] Mr. Holder filed an application for Disability Insurance Benefits (“DIB”) on September 10, 2015 and an application for Supplemental Security Income (“SSI”) on September 17, 2015, ^[4] alleging disability since July 8, 2015 due to osteoarthritis and “otheridis in wrists.” AR 190-98, 241. The Social Security Administration (“SSA”) denied his claims initially on October 21, 2015. AR 88-89, 113-120.^[5] Mr. Holder requested a hearing before an ALJ. AR 121-22. On April 25, 2017, ALJ Kathryn Burgchardt held a hearing. AR 49-87. ALJ Burgchardt issued her unfavorable decision on June 27, 2017. AR 12-31.

         The ALJ found that Mr. Holder met the insured status requirements of the Social Security Act through June 30, 2018. AR 17. At the hearing, Mr. Holder amended his alleged onset date to February 1, 2015. AR 15, 17, 52. At step one, the ALJ found that Mr. Holder had not engaged in substantial, gainful activity since his amended alleged onset date. AR 17. At step two, the ALJ found that Mr. Holder's bilateral arthritis of the wrists, degenerative disc disease of the cervical spine, and left shoulder impairment were severe impairments. AR 17-18. At step three, the ALJ found that none of Mr. Holder's impairments, alone or in combination, met or medically equaled a Listing. AR 18-19. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Holder's RFC. AR 19-24. The ALJ found Mr. Holder had the RFC to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift and carry 10 pounds frequently and 20 pounds occasionally. He can stand or walk with normal breaks for a total of six hours in an eight-hour workday and sit with normal breaks for a total of six hours in an eight-hour workday. He can perform pushing and pulling motions with upper and lower extremities within the weight restrictions given. He can perform activities requiring bilateral manual dexterity for both gross and fine manipulation with handling and reaching; however handling and fingering bilaterally would be limited to only frequent. The claimant should avoid unprotected heights and moving machinery. He should not climb any ladders, ropes or scaffolds, should avoid extreme cold, and should avoid overhead reach bilaterally.

AR 19.

         At step four, the ALJ concluded that Mr. Holder could not perform his past relevant work as a carpet installer, but could return to his past relevant work as a fiberglass finisher. AR 24. The ALJ thus found Mr. Holder not disabled at step four. Alternatively, the ALJ found Mr. Holder not disabled at step five because he could perform jobs that exist in significant numbers in the national economy-such as bench assembler, photo copy machine operator, and small products assembler. AR 24-25.

         Mr. Holder requested that the Appeals Council review the ALJ's unfavorable decision. AR 188-89, 310. Mr. Holder submitted additional evidence to the Appeals Council. See AR 11, 32-48. The Appeals Council did not consider or “exhibit” most of the additional evidence and found the rest “did not relate to the period at issue.” AR 2. On October 24, 2017, the Appeals Council denied the request for review. AR 1-5. Mr. Holder timely filed his appeal to this Court on December 7, 2017. Doc. 1.^[6]

         IV. Mr. Holder's Claims

         Mr. Holder raises three arguments for reversing and remanding this case: (1) the Appeals Council erred in refusing to consider his June 21, 2017 MRI; (2) the ALJ failed to explain why key medical evidence was rejected or not considered; (3) the ALJ's finding that he can perform his past relevant work and three other jobs is inconsistent with the RFC that states he must avoid overhead reaching. Doc. 25 at 16-21. I find that the Appeals Council erred by failing to consider additional evidence submitted by Mr. Holder. Because the Appeals Council failed to consider the evidence Mr. Holder submitted, the case will be remanded so that the Appeals Council may reevaluate the ALJ's decision in light of the completed record.

         V. Analysis

         A. The Appeals Council erred by failing to consider additional evidence submitted by Mr. Holder.

         The ALJ issued her unfavorable decision on June 27, 2017. See AR 12-31. Thereafter, Mr. Holder submitted additional evidence and requested that the Appeals Council consider the following:

1. Records from Gunnison-Griggs Orthopedics dated May 27, 2014 through June 2, 2017 (AR 32-46);

2. Records from Rocky Mountain Spine Clinic dated December 29, 2016 through March 29, ...