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Terry J. M. v. Berryhill

United States District Court, D. Utah, Central Division

August 27, 2018

TERRY J. M., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          MEMORANDUM DECISION AND REVERSING and REMANDING THE COMMISSIONER'S FINAL DECISION DENYING DISABILITY BENEFITS

          Evelyn J. Furse United States Magistrate Judge

         In accordance with Fed.R.Civ.P. 73 and based upon the parties' consent (ECF No. 22), this matter is before the Court on Plaintiff Terry J. M.'s[1] appeal from the denial of her claim for disability insurance benefits (DIB) under Title II of the Social Security Act. (ECF No. 3.) Ms. M. filed her claim on November 16, 2011, and alleges she became disabled beginning September 15, 2007. (Certified Administrative Transcript (Tr.) 19.) Ms. M. alleges that the Commissioner wrongly found her able to return to her past work as a “station manager.” (Tr. 871.) After oral argument on the issues and the review of the parties' briefing, the administrative law judge's (“ALJ”) decision, the record of proceedings in this case and relevant case law, the undersigned finds that the ALJ erred in his analysis with respect to Ms. M.'s past relevant work and failure to assign weight to one of the medical opinions of record. Therefore, the Commissioner's final decision is reversed, and this case is remanded to the Agency under sentence four of 42 U.S.C. § 405(g) for further proceedings.

         I. STANDARD OF REVIEW

         42 U.S.C. §§ 405(g) and 1383(c)(3) provide for judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”). The Court reviews the Commissioner's decision to determine whether the record as a whole contains substantial evidence in support of the Commissioner's factual findings and whether the SSA applied the correct legal standards. 42 U.S.C. §405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Commissioner's findings shall stand if supported by substantial evidence. 42 U.S.C. §§ 405(g) and 1383(c)(3). In addition to a lack of substantial evidence, the Court may reverse where the Commissioner uses the wrong legal standards or the Commissioner fails to demonstrate reliance on the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993).

         II. RELEVANT FACTS

         Ms. M. first applied for disability insurance benefits on November 16, 2011; she has a date last insured for Title II purposes of December 31, 2011. (Tr. 158-164; 863.) After her claim was denied initially and upon reconsideration, she requested a hearing, which was held in October 2013 before an ALJ. (Tr. 78; 79; 47-76.)

         The ALJ denied Ms. M.'s claim on February 12, 2014. (Tr. 16-37.) She requested Appeals Council review, which was denied on June 23, 2015. (Tr. 1-6.) Ms. M. appealed to the United States District Court, District of Utah, and on March 22, 2016, at the SSA's request, the District Court remanded Ms. M.'s case to the Agency. The Appeals Council subsequently remanded the case as well, ordering the ALJ to further evaluate Ms. M.'s past work, which appeared to exceed the residual functional capacity (RFC) found by the ALJ, and further evaluate her mental impairments. (Tr. 931-932.) With respect to Ms. M.'s past work the Appeals Council directed:

The Administrative Law Judge found the claimant could perform past relevant work as a station manager and as a reservation agent . . . . At the hearing, however, the vocational expert testified that the claimant's past work as actually performed fell under the categories of airport utility worker . . . and reservation agent . . . . The Dictionary of Occupational Titles (DOT) classifies the job of airport utility worker as a heavy, semi-skilled job with an SVP of 4, and the job of car rental clerk as a light, semi-skilled job with an SVP of 4. The decision reflects that the claimant is capable of only sedentary work, with some postural limitations . . . . Thus, the claimant's past wok appears greater than the claimant's residual functional capacity. Further evaluation is warranted.

(Tr. 931.)

         A different ALJ held the remand hearing on October 7, 2016. (Tr. 883-895.) The second ALJ denied Ms. M.'s claim on November 5, 2016. (Tr. 858-880.) Specifically, he found that the following impairments “severe” at step 2 of the sequential evaluation set forth in the regulations, 20 C.F.R. § 404.1520: degenerative disc disease of lumbar spine and obesity. (Tr. 863.) He found that none of these impairments met the requirements of a listed impairment (step 3), and that Ms. M. had the RFC to perform a full range of sedentary work except she could never climb ladders, ropes, or scaffolds, could only occasionally climb ramps and stairs, stoop, crouch and crawl, and could frequently balance and kneel. (Tr. 863-65.) The ALJ included no mental limitations in the RFC. (Tr. 865.)

         Based on this RFC, the ALJ found that Ms. M. could perform past relevant work as a “station manager” and denied her claim on that basis at step 4 of the sequential evaluation. (Tr. 871.) Ms. M. then initiated a new civil action in the District Court, pursuant to the appellate rights explained in the ALJ's decision (Tr. 859), and pursuant to 42 U.S.C. § 405(g).

         The record contains additional facts significant for the purposes of the issues raised in this appeal. With respect to Ms. M.'s past work, in her first work history report, she described her position as Great Lakes Airways Station Manager as working the “ramp area, ” loading and unloading bags and directing planes in and out, and deicing aircraft. She reported lifting up to 70 pounds at a time and 50 pounds frequently. (Tr. 187.) Her position as SkyWest Airlines Station Manager required, in essence, the same tasks as her previous position. She again described having “work[ing] the security area, ” loading and unloading bags and freight, directing planes in and out, and deicing planes in winter. Again, she described lifting up to 70 pounds at a time and 50 pounds frequently. (Tr. 188.)

         At her first hearing, Ms. M. testified to lifting luggage and freight in her position as manager at Great Lakes Airlines. (Tr. 56.) Consistent with her work history report she reported doing “the same thing” for Sky West Airlines. (Tr. 57.) The vocational expert testified that her positions for the airlines were a combination of numerous positions, stating that she would like to provide some DOT numbers and then “editorialize a little bit.” (Tr. 72.) The vocational expert testified that Ms. M.'s past work included the positions of station manager (DOT 184.167-082, sedentary, SVP 8) and manager, vehicle leasing and rental (DOT 187.167-062, light, SVP 8), then explained:

I think that you really have to go to the airstrip in Vernal to appreciate the work of the station manager . . . this person makes the reservations, rents the car, checks the freight, de-ices the wings, directs the planes, and so I think that this job, as it's performed in this little community, really best falls under the title of airport utility worker. It's DOT number 912.663-010. It's classified as a heavy, semi-skilled job with an SVP of 4. I think that captures much of the physical demands of the job. And then, at the other end, I would say reservation agent. That's DOT number 238.367-018. That's classified as a sedentary, semi-skilled job with an SVP of 4. And then the car work, both at the airport and in the town, I would classify that title under car rental ...

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