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Serafin v. Berryhill

United States District Court, D. New Mexico

August 15, 2019

ROGER M. SERAFIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.

         THIS 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

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] 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).

         “Substantial 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. 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) (quoting Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984)).

         Applicable Law and Sequential Evaluation Process

         In 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).

         When 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[2] 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.

         Procedural Background

         Plaintiff 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).

         In the 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[3] 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.

         On 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 telephone. Id.

         The ALJ 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. Id.

         At step 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. ยง] 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[, ] ...

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