Thompson v. Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 20 Plaintiff's Motion to Remand to Agency (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LISA THOMPSON,
Plaintiff,
v.

No. 16-cv-1222 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum [Doc. 20] (“Motion”), filed on July 6, 2017. The
Commissioner responded on September 5, 2017. [Doc. 22]. Plaintiff replied on September 19,
2017. [Doc. 23]. The parties have consented to the undersigned’s 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”) failed to provide a legally
adequate evaluation of Plaintiff’s alleged symptoms. Accordingly, the Motion will be granted
and the case remanded for further proceedings. See 42 U.S.C. § 405(g) (sentence four).
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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 re-weigh 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)
(citing 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) (internal quotation marks omitted).

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A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, 20 C.F.R. §§ 404.981; 416.1481. This case fits the general framework, and therefore, the Court reviews
the ALJ’s decision as the Commissioner’s final decision.

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Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a
five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 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) she is not engaged in “substantial gainful activity”; and (2) she 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) her impairment(s) either meet or equal one of the “Listings”3
of presumptively disabling impairments; or (4) she is unable to perform her “past relevant
work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399 F.3d at 1261. If
she cannot show that her impairment meets or equals a Listing, but she proves that she is unable
to perform her “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 her residual functional capacity (“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.

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20 C.F.R. pt. 404, subpt. P, app. 1.

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Procedural Background
Plaintiff applied for a period of disability, disability insurance benefits, and supplemental
security income on February 2, 2012.

Tr. 10.

She alleged a disability-onset date of

September 19, 2008. Id. Her claims were denied initially and on reconsideration. Id. Plaintiff
requested a hearing before an ALJ. Id. ALJ David R. Gutierrez held a hearing on June 25, 2015,
in Santa Fe, New Mexico. Tr. 10, 25−49. Plaintiff appeared in person and was represented by
an attorney. Tr. 10, 25−49. The ALJ heard testimony from Plaintiff and an impartial vocational
expert, Mary Diane Weber. Tr. 10, 25.
The ALJ issued his unfavorable decision on August 7, 2015. Tr. 19. Initially, the ALJ
found that Plaintiff met the insured status requirements through March 31, 2011. Tr. 12. At
step one he found that Plaintiff had not engaged in substantial gainful activity since the onset
date of her alleged disability. Id. Because Plaintiff had not engaged in substantial gainful
activity for at least 12 months, the ALJ proceeded to step two. Id. There he found that Plaintiff
suffered from the following severe impairments: degenerative disc disease and post-laminectomy
syndrome. Id. At step three the ALJ determined that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled a Listing. Tr. 13.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC. Tr. 13–16. The ALJ found that:
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §§] 404.1567(b) and 416.967(b) except she can sit up to
6 hours; stand/walk up to 6 hours; cannot push or pull; due to
lower back problems, can occasionally climb ropes, ladders[,] or
scaffolding; can occasionally balance, stoop, kneel, crouch, or
crawl; can occasionally reach overhead bilaterally, due to back and
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neck problems; can constantly handle, reach, finger, and feel
bilaterally; would need to avoid extreme cold and heat; avoid
concentrated exposure to wetness and humidity; and no work
involving vibrations or around moving machinery, unprotected
heights, or open flames.
Tr. 13–14 (footnotes omitted). At step four the ALJ found that Plaintiff was capable of returning
to her past relevant work as a travel agent and an escrow officer. Tr. 16–17. Having found that
Plaintiff could return to her past relevant work, the ALJ was not required to proceed to step five,
but he did so anyway. Tr. 17–18. At step five, the ALJ considered Plaintiff’s RFC, age,
education, work experience, and the testimony of the VE to find that Plaintiff could perform
other work that exists in significant numbers in the national economy. Id. Ultimately, the ALJ
determined that Plaintiff was not disabled as defined by the Act, and he denied the claims.
Tr. 18–19. Plaintiff requested review from the Appeals Council, but that request was denied on
September 7, 2016. Tr. 1. Plaintiff timely filed the instant action on November 8, 2016.
[Doc. 1].
Analysis
Social Security Ruling (“SSR”) 96-7p requires ALJs to “make a finding about the
credibility of the individual’s statements about the symptom(s) and its functional effects. . . . It
is not sufficient for the adjudicator to make a single, conclusory statement that ‘the individual’s
allegations have been considered’ or that ‘the allegations are (or are not) credible.’” 1996 SSR
LEXIS 4, at *2–3.

Specifically, in evaluating the credibility of a claimant’s subjective

complaints, the ALJ follows the steps outlined in Luna v. Bowen, 834 F.2d 161, 163 (10th Cir.
1987). First, accepting the subjective allegations as true, the ALJ must determine whether the
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claimant has a medically determinable impairment that “could reasonably be expected to produce
the alleged [symptoms].” Luna, 834 F.2d at 163; see SSR 96-7p, 1996 WL 374186, at *2. “If an
appropriate nexus does exist,” the ALJ must next consider all of the relevant evidence “to
determine whether the claimant’s [symptoms are] in fact disabling.” Luna, 834 F.2d at 163; see
SSR 96-7p, 1996 WL 374186, at *2. The ALJ must consider “the medical data previously
presented, any other objective indications of the degree of [the symptoms], and subjective
accounts of the severity” in determining whether the ALJ believes the claimant. Luna, 834 F.2d
at 163. That is, the ALJ must assess the credibility of the claimant’s assertions of pain or other
symptoms. Id.
The district court cannot re-weigh the evidence. It can only review an ALJ’s decision to
ensure that she applied the correct legal standard and that his findings are supported by
substantial evidence. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). “Credibility
determinations are peculiarly the province of the finder of fact, and [courts] will not upset such
determinations when supported by substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391
(10th Cir. 1995) (internal quotation marks omitted).

Boilerplate language, however, is

insufficient. Id. Instead, “it is well settled that [ALJs] must give reasons for their decisions.”
Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988). Although ALJs need not discuss “every
piece of evidence,” Clifton, 79 F.3d at 1010, their “findings as to credibility should be closely
and affirmatively linked to substantial evidence and not just a conclusion in the guise of
findings.” Kepler, 68 F.3d at 391 (internal quotation marks and brackets omitted).

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SSR 96-7p was superseded on March 29, 2016 (after the Commissioner’s decision
became final and after this action was already pending in this Court), by SSR 16-3p. The new
ruling “eliminat[es] the use of the term ‘credibility’ [and] clarif[ies] that subjective symptom
evaluation is not an examination of a [claimant]’s character.” 2016 SSR LEXIS 4, at *1, 2016
WL 1119029, at *1. “Generally, if an agency makes a policy change during the pendency of a
claimant’s appeal, the reviewing court should remand for the agency to determine whether the
new policy affects its prior decision.” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007).
The new Ruling, however, does not appear to be a policy change but, rather, a clarification.
In this case, Plaintiff argues that the ALJ’s decision “simply [contains] no evaluation of
the intensity and persistence of [Plaintiff]’s symptoms in accordance with either SSR 16-3p,
SSR 96-7p, or Luna v. Bowen and its progeny.” [Doc. 20] at 11. In other words, Plaintiff argues
that the ALJ’s findings are mere boilerplate and are not “closely and affirmatively linked” to any
particular portion of the record. Id. at 11–12. Defendant argues that SSR 16-3 is not applicable
to this case because it became effective after the Commissioner’s decision became final.
[Doc. 22] at 9. Rather, Defendant argues that SSR 96-7 governs. Id. Further, she argues that the
ALJ’s credibility findings are adequate. Id.
The ALJ’s decision included many paragraphs describing the applicable rules for
evaluating a plaintiff’s credibility. The decision also included a one-paragraph summary of the
medical evidence as well the ubiquitous boilerplate “findings.”4 The other findings on Plaintiff’s

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Tr. 14 (“After careful consideration of the evidence, I find that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in
this decision.”).

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credibility, however, are thin. Essentially, the ALJ found Plaintiff not entirely credible based on
a lack of supporting evidence:
The claimant’s allegations of the intensity and persistence of pain
and disabling symptoms are not consistent with medical record
signs, laboratory findings, or the medical record as a whole. The
claimant’s allegations, under oath, are not corroborated in the
medical evidence of record. . . . [T]he paucity of evidence does not
support the claimant’s ultimate allegation of disability. . . . [T]he
evidence cannot be fully reconciled with the level of pain and
limiting effects of the impairments that the claimant has
alleged. . . . The claimant’s allegations are found to be not fully
credible. Additionally, the medical findings do not support
existence of limitations greater than the above listed residual
functional capacity. . . . Given the medical evidence of record,
daily activities and other progress notes, though the claimant may
experience some pain, I find this symptom is not so severe as to
preclude all work activity. In accommodating this symptom, I
have restricted the claimant to light work.
Tr. 15–16. The ALJ, however, never identifies what evidence is inconsistent with Plaintiff’s
reported symptoms. These findings are generic; they could be found in anyone’s file. There is
nothing particular to Plaintiff’s symptoms or this record. The findings are not closely and
affirmatively linked to substantial evidence.

They amount to conclusions in the guise of

findings. See Kepler, 68 F.3d at 391. Pursuant to either SSR 96-7 or SSR 16-3, remand is
warranted for revaluation of Plaintiff’s reported symptoms.
Conclusion
Remand is warranted because the ALJ’s credibility findings are legally inadequate. The
Court declines to pass on Plaintiff’s other alleged errors at this time.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 20] is
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GRANTED. The Commissioner’s final decision is reversed, and this case is remanded for
further proceedings in accordance with this opinion.
IT IS SO ORDERED.

____________________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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