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Gutierrez v. Berryhill

United States District Court, D. Utah

March 12, 2018

MIGUEL GUTIERREZ, Plaintiff,
v.
Nancy Berryhill Acting Commissioner of the Soc. Sec, Defendant.

          MEMORANDUM DECISION & ORDER

          BRUCE S. JENKINS UNITED STATES DISTRICT JUDGE.

         Plaintiff, pursuant to 42 U.S.C. 405(g), 1383(c)(3), seeks judicial review of the decision of the Acting Commissioner of Social Security (Commissioner) denying his claims for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (the Act). After careful review of the entire record, the parties' briefs, the relevant law, and arguments presented at a hearing held on February 15, 2018, the Court FINDS that the decision of the Commissioner should be REMANDED.

         Procedural History

         Plaintiff Miguel Gutierrez ("Plaintiff) filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on August 5, 2013, alleging disability on September 1, 2013 as amended at hearing (Transcript of Administrative Record "T" at 11). He alleged disability from that time due to residual injuries and conditions from a severe motor vehicle-pedestrian accident on December 18, 2005 (T. 16), resulting in degenerative disc disease of the lumbar spine, spondylolisthesis, and a history of extradural cyst in his thoracolumbar spine, with multiple surgical interventions (T. 14), and resulting in severe chronic bilateral radiculopathies with severe chronic denervation (T. 469, 521), as well as right tibia/fibula fracture with surgical fixation and right leg shortening, as well as right shoulder fracture with degenerative joint disease status post surgery (T. 14).

         Plaintiff meets insured status requirements of the Social Security Act through December 31, 2018, and has not engaged in any substantial gainful activity since September 1, 2013, the amended alleged onset date (T. 13). The claims were denied initially on April 28, 2014, at reconsideration on November 12, 2014 (T. 11), and finally in an unfavorable hearing decision dated July 22, 2016, by Administrative Law Judge ("ALJ") Gilbert A. Martinez (T. 8-26).

         The ALJ found that the Plaintiff has severe impairments of a history of right tibia/fibula fracture 2005, status post surgical fixation, with right leg shortening; degenerative joint disease and a history of a right shoulder fracture in 2005, status post surgery; and degenerative disc disease, spondylolisthesis, and a history of an extradural cyst in his thoracolumbar spine, status post a laminectomy and excision of the extradural cyst on November 19, 2012, and a L5-Sl fusion on September 11, 2013, concluding that none of these conditions met or medially equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (T. 14).

         The ALJ concluded that the Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that he can lift and carry up to twenty pounds occasionally and ten pounds frequently; sit for one hour at a time and stand for thirty minutes at a time; sit a total of about six hours in an eight-hour workday, and stand or walk for a total of four hours in an eight-hour workday; can frequently balance, and can occasionally stoop, kneel, crouch, crawl, or climb ramps or stairs; can never climb ladders, ropes or scaffolds; can never reach overhead with his right upper extremity; can frequently reach overhead with his left upper extremity; can frequently handle, fmger, feel or reach in other directions with his bilateral upper extremities; and must avoid even moderate exposure to hazards such as machinery or unprotected heights (T. 16).

         Based on this RFC, the ALJ concluded that Plaintiff is unable to perform his past relevant work as a material handler, heavy, semi-skilled (SVP-3), spray painter I, medium, semi-skilled (SVP-4), cook helper, medium, semi-skilled (SVP-3), and corn popper, heavy, unskilled (SVP2) (T. 24), but is able to adjust to work as a semi-conductor bonder, sedentary, unskilled, and a touch up screener, sedentary unskilled (T. 25).

         On July 14, 2017, the Appeals Council denied a request for review, making the ALJ's determination the final agency decision (T. 1). On August 29, 2017, Plaintiff filed his complaint in this case (Doc. 1).

         Standard of Review

         The standard of review for appeal of a Social Security disability determination is whether the final decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003). 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." Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (citations omitted). Further, reversal is also appropriate where the ALJ either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards. Hamlin, 365 F.3d at 1214 (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)).

         Analysis

         Prior to regulatory changes effective March 27, 2017, it was established under 20 CFR 404.1527(d)(2) that, "If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairments) is well-supported by the medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." Pursuant to SSR 96-2p, even if the ALJ finds that the treating source is not entitled to controlling weight, "treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527...." Those factors included priority of a treatment relationship over an examining or non-examining relationship; length of treatment; supportability; and consistency. This has become known as the "treating physician rule."

         Where the evidence as a whole can support either the agency's decision or an award of benefits, the agency's decision must be affirmed. Ellison v. Sullivan,929 F.2d 534, 536 (10th Cir. 1990). Further, this Court may not simply re-weigh evidence in a light more favorable to the Plaintiff (see Lax v. Astrue,489 F.3d 1080, 1084 (10th Cir. 2007), the Court "may not displace the agency's choice between two fairly conflicting views, ...


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