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Fernandez v. Saul

United States District Court, D. New Mexico

September 20, 2019

ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.



         Plaintiff seeks reversal of the Commissioner’s determination that she is not entitled to Social Security disability benefits. With the consent of the parties to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b), the Court reverses and remands for further proceedings.


         In February 2014, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging that she had been disabled since November 20, 2012, due to diabetes; chronic back pain; bipolar depression; anxiety; migraines; and TMJ. (AR 211, 214). During a hearing held on April 5, 2017, before Administrative Law Judge (“ALJ”) Doug Gabbard, Plaintiff testified that she was unable to work due, in large part, to back pain and depression. (AR 50). To support her claims, Plaintiff offered medical records, self-reports of alleged functional limitations, and corroborating opinion evidence submitted by her healthcare providers-Dr. Richard Moore, licensed independent social worker Kurt Johnson (“LISW Johnson”), and licensed professional clinical counselor Robert Becher (“LPCC Becher”)-and friend, Jennifer George.

         As is relevant, Plaintiff’s medical records document two failed back surgeries and continued attempts to alleviate her back and associated leg pain via prescription narcotics, muscle relaxants, nerve medication, and lumber epidural steroid injections (“LESIs”). Plaintiff has been using a prescribed cane to ambulate since 2012, and she reported that her pain causes functional limitations including, inter alia, the ability to lift only five pounds, stand for only ten minutes before needing to sit, walk for only thirty minutes, and sit for no more than forty-five minutes. (AR 19, 228). She further reported “that squatting and bending caused too much pain and kneeling was hard to get back up.” (Id.).

         In 2014 and 2017, Plaintiff’s treating physician, Dr. Moore, completed assessments of Plaintiff’s ability to do work related activities. In his most recent assessment, Dr. Moore opined that Plaintiff can never climb stairs or ramps, stoop, kneel, or crouch, and she can only balance occasionally. (AR 874). Dr. Moore further stated that Plaintiff can occasionally lift up to ten pounds and that she can only stand and walk for thirty minutes at a time. (AR 873). Similarly, Ms. George noted that Plaintiff is unable to bend, lift, squat, reach, or kneel, and that stairs cause her “tremendous amounts of pain.” (AR 236).

         Plaintiff’s medical records also document a history of depression. In 2014, upon referral from Dr. Moore, Plaintiff began counseling sessions with LISW Johnson. (AR 545). LPCC Becher replaced LISW Johnson in 2017. (AR 53, 964). At the hearing, Plaintiff offered little testimony in regard to her depression. She did, however, state that her counseling with LPCC Becher has “been going well” but that it is difficult to “reopen old wounds and talk about things.” (AR 53).

         LPCC Becher and LISW Johnson completed assessments of Plaintiff’s ability to do work-related, mental activities, with both finding that Plaintiff had marked limitations in her abilities to understand, remember, and carry out detailed instructions. (AR 598, 929). In terms of maintaining concentration, performing activities within a schedule, and completing a normal workday/workweek, LISW Johnson opined that Plaintiff was moderately limited in these areas, whereas LPCC Becher identified marked limitations. (Id.).

         With this evidence in hand, ALJ Gabbard employed the required five-step disability analysis, [1] first finding that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of November 20, 2012.[2] (AR 15). At step two, he found that Plaintiff had the severe impairments of diabetes, back degenerative disc disease status post L4-5 laminectomy/discectomy, and affective disorder. (Id.). He also identified several non-severe impairments including migraines, GERD, hyperlipidemia, hypertension, allergic rhinitis, hypothyroidism, insomnia, fatigue, sleep apnea, and obesity. (AR 16). At step three, the ALJ determined that none of Plaintiff’s impairments, whether alone or in combination, met or medically equaled the severity of a listed impairment. (AR 16).

         ALJ Gabbard next assessed Plaintiff’s Residual Functional Capacity (“RFC”), [3] finding that Plaintiff had the RFC to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with frequent climbing of ramps/stairs; occasional climbing of ladders/ropes/scaffolds; occasional balancing and stooping; frequent crawling but no kneeling and crouching; and she must be allowed to alternately sit/stand every 15-20 minutes throughout the workday for the purpose of changing positions but without leaving the workstation. In addition, she [is] limited to semi-skilled work (work which requires understanding, remembering and carrying out some detailed skills but does not require doing more complex work duties) interpersonal contact with supervisors and coworkers must be on a superficial work basis and she can attend and concentrate for extended periods but should have normal, regular work breaks.

(AR 18-19).

         Here, ALJ Gabbard discussed Plaintiff’s symptoms and concluded that although Plaintiff’s impairments “could be expected to produce the above alleged symptoms…[her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (AR 20). He also rejected the opinion evidence provided by Dr. Moore, LISW Johnson, and LPCC Becher, and the evidence provided by Ms. George.

         ALJ Gabbard then proceeded to steps four and five where, with the help of a vocational expert (“VE”), he determined that Plaintiff was able to perform both her past relevant work as a cashier II, and representative occupations such as inspector packer and small product assembler. (AR 25-26). Accordingly, ALJ Gabbard concluded that Plaintiff was not disabled. (AR 26). The ALJ’s decision became final when, on May 2, 2018, the Appeals Council denied Plaintiff’s request for review. (AR 1). See Sims v. Apfel, 530 U.S. 103, 106–07 (2000) (explaining that if the Council denies a request for a review, the ALJ’s opinion becomes the final decision).

         II. STANDARD

         Judicial review of the Commissioner’s decision is limited to determining “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). See also 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005) (quotation omitted). The Court must examine the record as a whole, “including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. at 1262. “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.” Byron v. ...

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