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Bunker v. Saul

United States District Court, D. New Mexico

August 13, 2019

RUSSELL BUNKER, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing United States Magistrate Judge.

         THIS MATTER comes before the Court on plaintiff Russell Bunker's Motion to Reverse and/or Remand (Doc. 22), which was fully briefed on December 23, 2018. See Docs. 24, 25, 26. The parties consented to my entering final judgment in this case. Docs. 10, 13, 14. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) erred by failing to discuss Mr. Bunker's mental impairments when formulating his residual functional capacity (“RFC”). I therefore GRANT Mr. Bunker'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. § 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 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. § 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 RFC, age, education, and work experience. Id.

         III. Background and Procedural History

         Mr. Bunker was born in 1954, graduated from high school, and worked “hit and miss” for 15 years, making between $300 and $600 per month delivering small loads of lumber for a friend who owned a lumber yard. AR 40-41, 170, 191.[3] Mr. Bunker filed an application for Supplemental Security Income (“SSI”) on September 8, 2014, alleging disability since January 1, 1998 due to an incisional hernia, lower back problems, and a bad left knee. AR 170-76, 190. The Social Security Administration (“SSA”) denied his claim initially on January 8, 2015. AR 101-03; Doc. 17-1 at 2. The SSA denied his claims on reconsideration on May 22, 2015. AR 107-11. Mr. Bunker requested a hearing before an ALJ. AR 112-14. On October 19, 2016, ALJ Doug Gabbard II held a hearing. AR 33-64. ALJ Gabbard issued his unfavorable decision on December 22, 2016. AR 15-32.

         At step one, the ALJ found that Mr. Bunker had not engaged in substantial, gainful activity since his application date of August 15, 2014. AR 20. At step two, the ALJ found that Mr. Bunker had the following severe impairments: bilateral shoulder degenerative joint disease and osteoarthritis of the left knee. Id. The ALJ also found that Mr. Bunker had the following nonsevere impairments: mild back degenerative disc disease, abdominal hernia, insomnia, anxiety disorder, affective disorder, and substance addiction. AR 20-21. At step three, the ALJ found that none of Mr. Bunker's impairments, alone or in combination, met or medically equaled a Listing. AR 22. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Bunker's RFC. AR 23-25. The ALJ found Mr. Bunker had the RFC to “perform medium work as defined in 20 CFR 416.967(c) except the claimant can occasionally stoop and occasionally reach overhead bilaterally.” AR 22.

         At step four, the ALJ concluded that Mr. Bunker did not have any past relevant work. AR 25. The ALJ found Mr. Bunker not disabled at step five because he could perform jobs that exist in significant numbers in the national economy-such as laundry worker and dining room attendant. AR 26. Mr. Bunker requested review by the Appeals Council. AR 168-69. On December 3, 2017, the Appeals Council denied review. AR 1-6. Mr. Bunker timely filed his appeal to this Court on January 29, 2018. Doc. 1.[4]

         IV. Mr. Bunker's Claims

         Mr. Bunker raises five arguments on appeal: (1) the ALJ erred by failing to discuss his mental limitations when formulating his RFC; (2) the ALJ's RFC finding that he can perform “medium work” is not supported by substantial evidence; (3) the ALJ erred in giving treating orthopedic surgeon Dr. Grace's opinion “little weight”; (4) the ALJ erred in giving consultative examiner Dr. McCarthy's opinion “little weight”; (5) the ALJ erred at step five in finding he could do jobs which require frequent or constant reaching. Doc. 22 at 16-21. I find that the ALJ erred by failing to consider Mr. Bunker's mental impairments in formulating his RFC. Because I remand based on this error, ...


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