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Kelley v. Saul

United States District Court, D. New Mexico

December 30, 2019

ANDREW M. SAUL, [1] Commissioner of the Social Security Administration, Defendant.


          Laura Fashing United States Magistrate Judge.

         THIS MATTER comes before the Court on plaintiff Veronica L. Kelley's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 16), which was fully briefed on June 24, 2019. See Docs. 20, 21, 22. The parties consented to my entering final judgment in this case. Docs. 3, 7, 8. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to resolve a conflict between the vocational expert's (“VE's”) testimony and the Dictionary of Occupational Titles (“DOT”). I therefore GRANT Ms. Kelley'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[2] 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).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; 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[3] 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); 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

         Ms. Kelley was born in 1970, earned a bachelor's degree in horticulture, and worked as an office assistant, a hotel attendant, an office manager at a nursery, a lab technician, and a security assistant. AR 57, 204, 227.[4] Ms. Kelley filed an application for Disability Insurance Benefits (“DIB”) on September 5, 2014, alleging disability since November 13, 2009, [5] due to lupus, Sjogren's syndrome, Raynaud's disease, fibromyalgia, fatty liver disease, and hypersomnia. AR 204-05, 226. The Social Security Administration (“SSA”) denied her claim initially on March 13, 2015. AR 133-35. The SSA denied her claims on reconsideration on July 23, 2015. AR 139-43. Ms. Kelley requested a hearing before an ALJ. AR 144-45. On July 18, 2017, ALJ Lillian Richter held a hearing. AR 47-98. ALJ Richter issued her unfavorable decision on December 27, 2017. AR 26-46.

         The ALJ found that Ms. Kelley met the insured requirements of the Social Security Act through December 31, 2014. AR 31. At step one, the ALJ found that Ms. Kelley had not engaged in substantial, gainful activity since July 1, 2012, her amended alleged onset date. Id. At step two, the ALJ found that Ms. Kelley suffered from the following severe impairments: “systemic lupus erythematosus, fatigue, fibromyalgia, Raynaud[']s syndrome, somatic symptom disorder, mild neurocognitive disorder due to fibromyalgia, Sjogren's syndrome, fibromyositis, anxiety, and depression.” AR 32.

         At step three, the ALJ found that none of Ms. Kelley's impairments, alone or in combination, met or medically equaled a Listing. AR 32-35. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Kelley's RFC. AR 35-40. The ALJ found Ms. Kelley had the RFC to

to perform a limited range of sedentary work as defined in 20 CFR 404.1567(a) except the claimant can occasionally stoop, kneel, crouch and crawl, can occasionally climb ramps and stairs, can never balance, can never climb ladders, ropes or scaffolds. The claimant should avoid exposure to unprotected heights and hazardous machinery. The claimant can frequently handle and can frequently finger and feel bilaterally. The claimant is limited to simple routine work. The claimant cannot perform work outside and should avoid exposure to extreme cold.

AR 35.

         At step four, the ALJ concluded that Ms. Kelley could not perform any of her past relevant work. AR 40. The ALJ found Ms. Kelley not disabled at step five because she could perform jobs that exist in significant numbers in the national economy-such as “telephone quotation clerk, ” “charge account clerk, ” and “call out operator.” AR 40-41. On January 30, 2018, Ms. Kelley requested that the Appeals Council review the ALJ's unfavorable decision. AR 203. Ms. Kelley submitted additional evidence to the Appeals Council. AR 8-20. On September 15, 2018, the Appeals Council denied the request for review and found that the additional evidence did “not relate to the period at issue.” AR 1-4. Ms. Kelley timely filed her appeal to this Court on November 13, 2018.[6] Doc. 1.

         IV. Ms. ...

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