United States District Court, D. New Mexico
ROGER M. SERAFIN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing or for Immediate Payment
of Benefits with Supporting Memorandum [Doc. 15], filed on
February 11, 2019. The Commissioner responded on May 9, 2019.
[Doc. 17]. Plaintiff replied on June 6, 2019. [Doc. 18]. The
parties have consented to my entering final judgment in this
case. [Doc. 8]. Having meticulously reviewed the entire
record and being fully advised in the premises, the Court
finds that the Administrative Law Judge (“ALJ”)
did not apply the correct legal standards in evaluating Dr.
Walker's and Dr. Lawrence's opinions. Because the
claim has been pending for ten years, and because further
fact-finding is not warranted, the case will be remanded for
an immediate award of benefits.
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). Courts
must meticulously review the entire record but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. The 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 a 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
[Commissioner]'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.
‘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) (quoting Byron v.
Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984)).
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant 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) (2018); 20
C.F.R. § 404.1505(a) (2012).
considering a disability application, the Commissioner is
required to use a five step sequential evaluation process
(“SEP”). Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. § 404.1520 (2012). At the first
four steps of the evaluation process, the claimant must show:
(1) he is not engaged in “substantial gainful
activity”; and (2) he 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) his
impairment(s) either meet or equal one of the
Listings of presumptively disabling impairments;
or (4) he is unable to perform his “past
relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv);
Grogan, 399 F.3d at 1261. If he cannot show that his
impairment meets or equals a Listing, but he proves that he
is unable to perform his “past relevant work, ”
the burden of proof then shifts to the Commissioner, at step
five, to show that the claimant is able to perform other work
in the national economy, considering his residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
was born on May 16, 1970. Tr. 125. He suffered a serious
motorcycle accident in August of 2009, resulting in the
amputation of his left leg above the knee. See [Doc.
15] at 6. As a result of his injuries, and due to his obesity
and affective disorders, he applied for a period of
disability and disability insurance benefits. Tr. 71.
Plaintiff alleges a disability onset date of August 10, 2009.
Tr. 1092. His claim has been denied three times by
ALJs. Tr. 24-30 (first denial of January 5, 2012); Tr. 467-81
(second denial of December 15, 2015); Tr. 1092-1109 (third
denial of Sept. 12, 2018). This is his third appeal to this
Court. See Serafin v. Colvin, No. 13-cv-0347 LH/KBM
(D.N.M. Sept. 16, 2014) (first federal court remand)
(unpublished); Tr. 1122-36 (second federal court remand of
April 13, 2017).
most recent remand from this Court, on April 13, 2017, the
Honorable Carmen Garza, Chief United States Magistrate Judge,
found that the ALJ had failed to apply the correct legal
standards in weighing the non-examining psychological opinion
of Dr. Walker. Tr. 1129-31. Judge Garza found that, inter
alia, some of Dr. Walker's moderate
limitations were accounted for in neither the RFC
assessment (for semi-skilled work) nor the unskilled jobs
listed by the ALJ at step five. Tr. 1130-31. Among other
grounds, Judge Garza remanded the case for proper weighing of
Dr. Walker's opinion. Tr. 1135.
remand and as is pertinent here, ALJ Michael Leppala held a
third administrative hearing August 3, 2018, in Albuquerque,
New Mexico. Tr. 1092, 1139-1200. Plaintiff appeared with his
attorney. Id. The ALJ heard testimony from Plaintiff
and Plaintiff's fiancée, Amorita Solano, who
appeared in person, and from an impartial vocational expert
(“VE”), Molly M. Kelly, who appeared by
issued the third unfavorable ALJ decision on September 12,
2018. Tr. 1109. He found that Plaintiff met the insured
status requirements of the Social Security Act through
September 30, 2013. Tr. 1094. At step one, he found that
Plaintiff had not engaged in substantial gainful activity
between his alleged onset date and his date last insured. Tr.
1095. At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: “status-post left leg
above-knee amputation; obesity; and affective
disorders.” Id. The ALJ also found that
Plaintiff's left humerus fracture was not severe.
three, the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 1095-97. Because none of
Plaintiff's impairments met or medically equaled a
Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
1097-1107. On review of the evidence, and having adopted Dr.
Walker's opinion, the ALJ found that Plaintiff had:
the [RFC] to perform less than a full range of sedentary work
as defined in 20 [C.F.R. §] 404.1567(a) as follows:
[Plaintiff] was capable of lifting up to ten pounds
occasionally, standing and/or walking about two hours in an
eight-hour workday, and sitting for about six[ ]hours in an
eight-hour workday, all with normal breaks. [Plaintiff] was
further limited to occasionally climbing ramps or stairs,
never climbing ladders, ropes, or scaffolds, and occasionally
balancing, stooping, kneeling, crouching, and crawling.
[Plaintiff] could understand, carry out, and remember simple
and detailed, but not complex, instructions and make
commensurate work-related decisions; respond appropriately to
supervision, co-workers, and work situations; deal with
routine changes in work setting; and maintain concentration[,