Tessier v. Berryhill

Filing 22

MEMORANDUM DECISION AND ORDER - the court REMANDS the case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Judge Dale A. Kimball on 1/12/2018. (eat)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

HEIDI M. TESSIER,
Plaintiff,

vs.

NANCY BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

MEMORANDUM DECISION
AND ORDER

Case No. 2:17CV143DAK

JUDGE DALE A. KIMBALL

Defendant.

This matter is before the court on Plaintiff’s appeal of the Social Security
Administration’s denial of her claim for disability insurance benefits under Title II of the Social
Security Act. This court has jurisdiction to review the final decision of the Commissioner of the
Social Security Administration under the Social Security Act, 42 U.S.C. § 405(g). On January
11, 2018, the court held oral argument on Plaintiff’s appeal. At the hearing, Plaintiff was
represented by Wendy Wheeler, and Defendant was represented by Jessica Milano. The court
took the matter under advisement. Having fully considered the parties’ briefs and arguments, the
administrative record, and the law and facts relevant to the appeal, the court enters the following
Memorandum Decision and Order remanding the case to the Social Security Administration.

BACKGROUND
On April 2, 2013, Plaintiff filed a Title II application for disability insurance benefits,
alleging disability beginning March 15, 2012. The Social Security Administration denied the
claim on September 19, 2013, and Plaintiff requested a hearing. An Administrative Law Judge
held a hearing on Plaintiff’s claim on November 17, 2015, and issued a denial of Plaintiff’s claim
on December 9, 2015. The Appeals Council denied Plaintiff’s subsequent request for review,
rending the ALJ’s decision the Commissioner’s final administrative decision.
At the time of her application for benefits, Plaintiff was 49 years old. She has a
bachelor’s degree and master’s degree in education with two reading endorsements. She was an
early childhood teacher during the 1990s and an elementary school teacher from 2001 through
March 2012. In March 2012, Plaintiff suffered a stroke, which caused cognitive disorders,
depression, anxiety, bipolar II disorder, and increased the severity of her peripheral neuropathy.
The ALJ found that Plaintiff had the following severe impairments: stroke, transient ischemic
attack, cognitive disorder, depression, bipolar, and anxiety.
LEGAL STANDARD
To be found “disabled” under the Social Security Act, the plaintiff must establish her
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment.” 42 U.S.C. 423(d)(1)(A). Under the Social Security Act, the
Social Security Administration has established a five-step sequential evaluation process for
determining whether an individual is disabled. 20 C.F.R. § 416.920.
At step one, the ALJ must determine whether the claimant is engaging in substantial
gainful activity. Id. § 416.920(b). At step two, the ALJ must determine whether the claimant has

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a medically determinable impairment or combination of impairments that is severe. Id. §
416.920(c). At step three, the ALJ determines whether the claimant’s impairment or
combination of impairments is of a severity to meet, or be considered medically equal to, the
criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. §§ 416.920(d).
Before considering step four, the ALJ must determine the claimant’s residual functional capacity.
Id. § 416.920(e). An individual’s residual functional capacity is her ability to do physical and
mental work activities on a sustained basis despite limitations from her impairments. At step
four, the ALJ must determine whether the claimant has the residual functional capacity to
perform the requirements of her past relevant work. Id. § 416.920(f). At the last step, the ALJ
must determine whether the claimant is able to do any other work considering her residual
functional capacity, age, education, and work experience. Id. § 416.920(g).
ALJ’S DECISION
The ALJ analyzed Plaintiff’s claim under the five-step process. The ALJ determined
that Plaintiff had not been engaged in substantial gainful activity since the stroke in March 2012.
The ALJ found that Plaintiff had several severe impairments. Under Step 3, the ALJ concluded
that Plaintiff’s combination of impairments were not medically severe because they did not
reach the level of severity contemplated by the listed impairments and her mental impairments
did not result in at least two of the following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace, or repeated episodes of decompensation.
The ALJ next found Plaintiff’s residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except with the following limitations: frequently climb ramps or

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stairs, but never climb ladders, ropes, or scaffolds; occasionally crouch and crawl; frequently
balance, stoop, and kneel; and, avoid even moderate exposure to hazards and operation of a
motor vehicle. In addition, the ALJ found that Plaintiff’s ability to understand, remember, and
carry out job instructions is limited, but she can still understand, remember, and carry out short,
simple instructions. Also, the ALJ determined that while Plaintiff’s ability to make judgments in
work-related decisions is impaired, she can make simple work-related decisions and she could
interact with supervisors and coworkers.
At step four, the ALJ recognized that Plaintiff was unable to perform her past relevant
work. However, at the final step, considering Plaintiff’s age, education, work experience, and
residual functional capacity, the ALJ found that there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform. The ALJ relied on the testimony of the
vocational expert that Plaintiff would be able to work as a housekeeper and production
assembler. Accordingly, the ALJ found that Plaintiff was not disabled.
STANDARD OF REVIEW
The court independently determines “whether the ALJ’s decision is ‘free from legal error
and supported by substantial evidence.’” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2006)
(quoting Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005)). Under 42 U.S.C. §
405(g), “[t]he findings of the Commission of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Wall, 561 F.3d at 1052. Although the court “will ‘not
reweigh the evidence or retry the case,’” it “meticulously examine[s] the record as a whole,

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including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Id. (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th
Cir. 2007)).
ANALYSIS
Plaintiff appeals the ALJ’s decision, arguing that the ALJ erred in failing to analyze
Plaintiff’s peripheral neuropathy in the sequential evaluation, in making his RFC determination,
in rejecting testimony from Plaintiff’s treating sources, and in determining credibility.
The ALJ failed to list Plaintiff’s peripheral neuropathy as a severe or a non-severe
impairment. However, the impairment is documented in Plaintiff’s medical records and there is
evidence in the record that the impairment greatly impacts Plaintiff’s functional capacity. Many
witnesses testified as to the impact of the peripheral neuropathy on Plaintiff’s ability to work and
do basic tasks. There is evidence that Plaintiff cannot cook a meal, takes short showers, and
cannot be in a store for more than thirty minutes because of leg pain. The ALJ did not discuss
this evidence or explain why or how it was not credible. This failure is critical to the overall
evaluation of Plaintiff’s disability given that there is evidence in the record that Plaintiff’s
peripheral neuropathy could prevent her from performing the two jobs in the economy that the
ALJ found she was capable of maintaining–a housekeeper or a product assembler. The ALJ
found that Plaintiff could do light work requiring up to six hours of standing a day. However,
this finding is contrary to substantial evidence from several witnesses. If the peripheral
neuropathy keeps Plaintiff from being able to cook a meal, it is difficult to comprehend how she
could be a housekeeper or on an assembly line for eight hours a day. The ALJ’s decision does
not sufficiently address this condition or the limitations it places on Plaintiff’s ability to work.

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The court, therefore, believes it is compelled to remand the case back to the ALJ for a full
consideration of the impairment’s impacts at each step of the evaluation process.
In addition, the ALJ improperly weighted the opinions from the state’s consultants and
discounted the opinions of Plaintiff’s treating sources. The ALJ failed to analyze the information
from these witnesses based on the supporting medical evidence in the record. See Clifton v.
Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[I]n addition to discussing the evidence supporting
his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon,
as well as significantly probative evidence he rejects.”). Boxes checked on an evaluation form
by a non-treating physician, “standing alone, unaccompanied by thorough written reports or
persuasive testimony, are not substantial evidence.” Frey v. Bowen, 816 F.3d 508, 515 (10th Cir.
1987) (“[F]indings of a non-treating physician based upon limited contact and examinations are
of suspect reliability.”). Plaintiff’s treating physicians were consistent between themselves and
consistent with the other witnesses. The only inconsistencies in the record were the findings of
the state agency consultants, who had very limited interaction with Plaintiff. The ALJ in this
case appears to have created an RFC based on the consultants’ limited information and used any
contradiction in the treating sources’ analyses as a basis for discounting that source’s opinions.
Such an approach appears to be putting the cart before the horse and improperly limited the
information provided by the treating physicians. The court concludes that such an approach
should be remedied on remand.
After reviewing the administrative record as a whole, the court concludes that it must
remand the case to the Commissioner of the Social Security Administration for further review
consistent with this decision.

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CONCLUSION
Based on the above reasoning, the court REMANDS the case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 12th day of January, 2018.
BY THE COURT:

___________________________________
Dale A. Kimball,
United States District Judge

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