KAREN B. MOLZEN, Magistrate Judge.
THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 18), filed on October 30, 2017. The Court further ordered supplemental briefing on two discrete issues on May 16, `. See Doc. 24. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 10, 12, 23. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted.
This is Mr. Pounders' (Plaintiff's) second appeal of an application he protectively filed with the Social Security Administration on April 8, 2010, for a period of disability and Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Administrative Record
Disability Determination Services determined that Plaintiff was not disabled both initially (AR at 83) and on reconsideration (AR at 85). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of his application. AR at 97. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 37-82. ALJ Ann Farris issued an unfavorable decision on June 29, 2012. AR at 21-36. Plaintiff then submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 16), which the council denied on February 6, 2014 (AR at 2-8). Consequently, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
Plaintiff first appealed ALJ Farris's decision to this Court on April 11, 2014. See Pounders v. Colvin, CV 14-0347 KG/WPL, Compl. (D.N.M. Apr. 11, 2014). Days later, Plaintiff filed a second application for a period of disability and DIB (AR at 742-48), and the state agency issued a favorable determination on February 6, 2015, finding Plaintiff was disabled beginning January 1, 2014.
On April 5, 2016, the Appeals Council affirmed the state agency's determination on the second application that Plaintiff "was disabled beginning January 1, 2014." AR at 601-02. The council found, however, that "the period prior to January 1, 2014 require[d] further administrative proceedings" and remanded the matter to an ALJ to "issue a new decision on the issue of disability before January 1, 2014." AR at 601-02.
Following remand by Judge Gonzales of this Court, ALJ Farris held a second de novo hearing regarding Plaintiff's first application on September 1, 2016. AR at 514-47. The ALJ issued a partially favorable decision on December 30, 2016. AR at 486-513. Using the five-step sequential evaluation process, ALJ Farris found that Plaintiff was disabled beginning on July 1, 2013, through December 31, 2013. AR at 486-513. There is no evidence that Plaintiff asked the Appeals Council to review ALJ Farris's decision, so the ALJ's decision became the final decision of the Commissioner 60 days after December 30, 2016. Plaintiff then filed a suit in this Court seeking remand for another rehearing. Doc. 1.
A claimant seeking disability benefits 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a sequential evaluation process ("SEP") to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The claimant has the burden at the first four steps of the process to show: (1) he is not engaged in "substantial gainful activity"; (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) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), he is unable to perform his past relevant work. 20 C.F.R §§ 404.1520(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). "RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of [his] medical impairments." Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant meets "the burden of establishing a prima facie case of disability[,] . . . the burden of proof shifts to the Commissioner at step five to show that" the claimant retains sufficient RFC "to perform work in the national economy, given his age, education, and work experience." Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. § 404.1520(a)(4)(v).
At Step One of the process,
At Step Two, the ALJ concluded that since January 1, 2009, Plaintiff "has had the following severe impairments: degenerative disc disease of the lumbar and cervical spine, status-post lumbar fusion L4-S1, moderate arthrosis of the synovial joints, and obesity. Beginning on the established onset date of disability, July 1, 2013," Plaintiff had the aforementioned severe impairments, as well as "arthritis of the hands." AR at 494 (citing 20 C.F.R. § 404.1520(c)). ALJ Farris also noted the following nonsevere impairments: sleep apnea; mesenteric fibrosis; depression; and degenerative joint disease of the knees, shoulders, and hands (the ALJ found, however, that the degenerative joint disease of the hands became severe as of July 1, 2013). AR at 494.
At Step Three, the ALJ found that for the relevant time period, Plaintiff "has not had an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1." AR at 497 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). At Step Four, the ALJ considered the evidence of record and found
AR at 497-98. For the time period
AR at 503-04.
The ALJ determined that from "July 1, 2009, through December 31, 2013, [Plaintiff] has been unable to perform any past relevant work." AR at 504 (citing 20 C.F.R. § 404.1565). ALJ Farris found that "[p]rior to July 1, 2013, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that [Plaintiff] is `not disabled' whether or not [he] has transferable job skills. Beginning on July 1, 2013, [Plaintiff] has not been able to transfer job skills to other occupations." AR at 505 (citing SSR 82-41, 1982 WL 31389 (Jan. 1, 1982); 20 C.F.R. Part 404, Subpart. P, App'x 2). Before July 1, 2013, "there were jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed"; specifically, Plaintiff would have been able to perform the jobs of Marker, Cashier II, and Cafeteria Attendant. AR at 505-06 (citing 20 C.F.R. §§ 404.1569, 404.1569a). "Beginning on July 1, 2013, through December 31, 2013, . . . there were no jobs that existed in significant numbers in the national economy that [Plaintiff] could perform." AR at 506 (citing 20 C.F.R. §§ 404.1560(c), 404.1566). Ultimately, ALJ Farris found that Plaintiff "was not disabled prior to July 1, 2013, but became disabled on that date and has continued to be disabled through December 31, 2013." AR at 506 (citing 20 C.F.R. § 404.1520(g)).
The Court must "review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). "It requires more than a scintilla, but less than a preponderance." Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will "consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's." Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).
Moreover, "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court "may not `displace the agenc[y's] choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.'" Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).
Plaintiff contends that the case must be remanded because ALJ Farris failed to apply SSR 83-20 when determining Plaintiff's disability onset date. Doc. 18 at 15-21; see also SSR 83-20, 1983 WL 31249 (Jan. 1, 1983). As an alternative argument, Plaintiff contends that the ALJ inadequately assessed his RFC. Doc. 18 at 21-23. Because the Court agrees that the ALJ erred in failing to apply SSR 83-20 to determine the disability onset date, it will grant Plaintiff's motion on that issue.
The Court pauses here to reexamine the procedural history of this case, which is somewhat complicated by the fact that Plaintiff filed two separate applications for DIB. See Jaramillo v. Colvin, 184 F.Supp.3d 1086, 1089-90 (D.N.M. 2015). It was only after the state agency found Plaintiff disabled as of January 1, 2014, on his second application, that the district court remanded his first application back for a rehearing and further analysis. When ALJ Farris received the file on Plaintiff's first application for the second time, she was charged with determining whether Plaintiff was disabled during the time period that remained at issue between the two applications—that is, the time between Plaintiff's alleged onset date (January 1, 2009), and the day before the state agency found Plaintiff disabled (December 31, 2013). Accordingly, ALJ Farris was correct to use the SEP to evaluate Plaintiff's first application and to determine whether Plaintiff was disabled during the relevant time period. See Jaramillo, 184 F. Supp. 3d at 1092-93.
Plaintiff muddied the waters on this issue in his motion to remand. Plaintiff first asserted that "for the period between January 1, 2009 and December 31, 2013, ALJ Farris
Plaintiff's attorney, Mr. Michael Armstrong, made an almost identical statement and relied on identical language from Trujillo
Plaintiff clarified in his supplemental brief that he does not believe ALJ Farris erred in applying the SEP; rather, he contends ALJ Farris erred in failing "to consult a medical advisor to determine when his disability began rather than assigning a date without a concrete reason for picking that date." Doc. 25 at 3. The Court encourages Plaintiff's counsel to lead with this much clearer (and legally correct) statement in future motions.
The parties do not dispute whether Plaintiff is disabled under the Social Security Act; they disagree only on when his disability started. After applying the SEP and determining that Plaintiff was under a disability during the relevant time period, ALJ Farris was required to "establish the onset date of disability." SSR 83-20, 1983 WL 31249, at *1.
Blea v. Barnhart, 466 F.3d 903, 911 (10th Cir. 2006) (quoting Grebenick v. Chater, 121 F.3d 1193, 1200-01 (8th Cir. 1997) (internal citations omitted)).
Before delving into the issue of whether the medical evidence in this case was ambiguous, it is important to recognize why ALJ Farris reduced Plaintiff's exertional level from "light" (prior to July 1, 2013) to "sedentary" (on July 1, 2013). The Commissioner, noting the ALJ's additional restriction on Plaintiff's ability to handle and finger, asserts that the ALJ gave detailed findings regarding "the medical evidence [that] showed worsening of his hands by late July 2013. . . ." Doc. 20 at 13. Yet the ALJ's decision is also firmly based on the progression of Plaintiff's degenerative disc disease, which she noted "likely reached a `severe' degree at some point in late 2013 . . . warrant[ing] further restriction to sedentary exertion. . . ." AR at 504. It is the medical evidence of this second impairment that Plaintiff argues was ambiguous. And, importantly, the Commissioner acknowledges that the ALJ's treatment of the "likely" worsening of Plaintiff's degenerative disc disease was lacking. Doc. 20 at 13 (noting that Plaintiff "focuse[d] on the ALJ's one-paragraph discussion of his back").
The ALJ thoroughly summarized the 2011 record evidence of Plaintiff's degenerative disc disease. See AR 498-503, 504. What is striking to the Court, however, are the ALJ's observations regarding both inconsistencies in the evidence from 2011, and the almost complete lack of evidence from 2012 and early 2013. AR at 499-500. For example, ALJ Farris detailed the 2011 records and noted Plaintiff's "persistent back pain despite conservative medication management" (AR at 499 — citing AR at 309-10, 334), the "`early' degeneration of the L2-L3 disc, `advanced' degeneration of the L5-S1 disc, a prior lumbar fusion, and moderate osteoarthrosis of the synovial joints" (AR at 499 — citing AR at 325, 334, 336; see also AR at 324, 335, 349), observations of "painful lumbar loading," and "painful ranges of motion in the lumbar spine, cervical spine, and hips, paraspinal tenderness, and decreased sensation in the lower extremities" (AR at 499 — citing AR at 399, 401, 406, 903). The ALJ noted that in early 2012, "[d]iagnostic imaging of the spine . . . confirmed a surgical fusion of L4 through S1 with `slight' subluxation at L2-L3, lumbar endplate spurring at multiple levels, and `mild' degenerative changes of the cervical spine with `moderate' neural foraminal stenosis and `mild' canal stenosis." AR at 499 (citing AR at 414, 922).
On the other hand, the ALJ observed that "
The ALJ found that
AR at 504 (emphasis added) (citing AR at 872). Plaintiff's degenerative disc disease that "progress[es] over time" is precisely the type of "slowly progressive impairment" that SSR 83-20 is designed to address. See SSR 83-20, 1983 WL 31249, at *2. "With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling." Id. Where the "medical evidence does not establish the precise onset date, the ALJ may have to `infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process.'" Blea, 466 F.3d at 909 (quoting SSR 83-20, available at 1983 WL 31249, at *2).
Plaintiff asserts that the medical evidence was insufficient to provide "the precise date [Plaintiff's] impairment became disabling." Doc. 18 at 18 (quoting SSR 83-20, at *2). The Commissioner contends that the evidence was adequate for ALJ Farris to establish the onset date without calling a medical advisor. Doc. 20 at 13 (citing SSR 83-20, 1983 WL 31249, at *3). But as discussed above, the medical evidence on Plaintiff's degenerative disc disease was ambiguous in 2011, and scant in 2012-13, which was a critical time period in determining the onset of the disability. The Tenth Circuit has explicitly held that "[a]n ALJ may not make negative inferences from an ambiguous record; rather, [she] must call a medical advisor pursuant to SSR 83-20." Blea, 466 F.3d at 913 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). Moreover, "when an onset date is ambiguous, it is not usually possible for an ALJ to make a decision that is supported by substantial evidence." Id. at 911.
ALJ Farris guessed that Plaintiff's impairment "likely reached" a disabling degree "at some point" in 2013. The ALJ's guess, without specific medical evidence, is inadequate. It is clear to the Court that the ALJ had to infer the onset date of Plaintiff's disability. And as described above, the evidence was scant and ambiguous regarding the progression of Plaintiff's slowly progressive impairment. Thus, the ALJ erred in failing to call a medical advisor to help establish an onset date, and the Court will remand for further proceedings that comply with SSR 83-20.
The Court finds that ALJ Farris erred in failing to call a medical advisor to establish the onset date of Plaintiff's degenerative disc disease as is required by SSR 83-20. On remand, the ALJ must call a medical advisor and comply with SSR 83-20. Because the Court grants Plaintiff's motion on this issue, the Court need not examine Plaintiff's alternative argument regarding whether the ALJ inadequately assessed his RFC.
Wherefore
To the extent Trujillo stands for the proposition that an ALJ should consult with a medical advisor to help establish an onset date where there is ambiguous evidence of the onset of a nontraumatic impairment, the case is on point. Trujillo is obviously distinguishable, though, as there was only one application and the ALJ, who was bound by the Commissioner's earlier determination of disability, simply needed to determine the plaintiff's disability onset date pursuant to SSR 83-20. Here, ALJ Farris was not bound by the Commissioner's finding of disability, as the ALJ was looking at Plaintiff's first application, and the Commissioner's finding was restricted to his second application. See POMS GN 03106.090, New Disability Applications, https://secure.ssa.gov/poms.nsf/lnx/0203106090.
