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Otero v. Berryhill

United States District Court, D. Utah, Central Division

September 8, 2017

LEE OTERO, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          David Nuffer Chief District Judge

          REPORT AND RECOMMENDATION

          PAUL M. WARNER UNITED STATES MAGISTRATE JUDGE

         Chief District Judge David Nuffer referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[2] Before the court is Lee Otero's (“Plaintiff”) appeal of the Commissioner's final decision determining that Plaintiff was not entitled to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, see 42 U.S.C. §§ 401-434, and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, see id. §§ 1381-1383f. After careful consideration of the written briefs and the complete record, the court has determined that oral argument is not necessary in this case.

         At the outset, the court recognizes that Plaintiff is proceeding pro se in this case. Accordingly, the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).

         BACKGROUND

         Plaintiff alleges disability due to various physical impairments. In August 2013, Plaintiff applied for DIB and SSI, alleging disability beginning on July 28, 2012.[3] Plaintiff's application was denied initially and upon reconsideration.[4] In On March 5, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), [5] and that hearing was held on December 15, 2014.[6] At the hearing, the ALJ ensured that Plaintiff was aware of his right to be represented by counsel, but Plaintiff chose to waive that right.[7] On February 3, 2015, the ALJ issued a written decision denying Plaintiff's claim for DIB and SSI.[8] On February 10, 2016, the Appeals Council denied Plaintiff's request for review, [9] making t h e A LJ 's decision the Commissioner's final decision for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.

         On April 14, 2016, Plaintiff filed his complaint in this case, [10] which was eventually assigned to Chief Judge Nuffer.[11] The Commissioner filed her answer and the administrative record on June 20, 2016.[12] On August 1, 2016, Chief Judge Nuffer referred the case to Chief Magistrate Judge Warner under 28 U.S.C. § 636(b)(1)(B).[13]

         Plaintiff filed his opening brief on November 18, 2016.[14] The Commissioner filed her answer brief on January 12, 2017.[15] Plaintiff filed his reply brief on January 27, 2017.[16]

         STANDARD OF REVIEW

         This court “review[s] 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) (quotations and citation omitted). The Commissioner's findings, “if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “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.” Lax, 489 F.3d at 1084 (quotations and citation omitted). “In reviewing the ALJ's decision, [this court may] neither reweigh the evidence nor substitute [its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quotations and citation omitted). “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 [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quotations and citation omitted).

         A five-step evaluation process has been established for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one of the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

Step one determines whether the claimant is presently engaged in substantial gainful activity. If [the claimant] is, disability benefits are denied. If [the claimant] is not, the decision maker must proceed to step two: determining whether the claimant has a medically severe impairment or combination of impairments. . . . If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three.

Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).

Step three determines whether the impairment is equivalent to one of a number of listed impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step . . . .

Williams, 844 F.2d at 751 (quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

         At the fourth step, the claimant must show that the impairment prevents performance of his “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “If the claimant is able to perform his previous work, he is not disabled.” Williams, 844 F.2d at 751. If, however, the claimant is not able to perform his previous work, he “has met his burden of proof, establishing a prima facie case of disability.” Id.

         At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At this step, the burden of proof shifts to the Commissioner, and the decision maker must determine “whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If it is determined that the claimant “can make an adjustment to other work, ” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is not disabled. If, on the other hand, it is determined that the claimant “cannot make an adjustment to other work, ” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.

         ANALYSIS

         In support of his claim that the Commissioner's decision should be reversed, Plaintiff does not present any distinct arguments about legal errors made by the ALJ or a lack of substantial evidence to support the ALJ's decision. Instead, Plaintiff essentially argues that he was treated unfairly in the proceedings before the ALJ and that the ALJ's decision is unfair. The Commissioner argues that Plaintiff received a full and fair hearing and ...


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