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Connie B. v. Berryhill

United States District Court, D. Utah

September 26, 2018

CONNIE B., Plaintiff
v.
NANCY A. BERRYHILL, AS ACTING COMMISSIONER FOR SOCIAL SECURITY ADMINISTRATION, Defendant

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

          HON. EVELYN J. FURSE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Connie B., [1] pursuant to 42 U.S.C. § 405(g), seeks review by this Court of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her application for Social Security Disability Insurance Benefits. The Court heard oral argument on Ms. B.'s request for judicial review on August 29, 2018. At the hearing, attorney Benjamin A. Johnston appeared telephonically on behalf of Ms. B., and attorney Kathryn C. Bostwick appeared telephonically on behalf of the Commissioner. At the conclusion of the hearing, the Court remanded the matter for further consideration of the record as outlined herein.

         BACKGROUND

         Ms. B. filed an application for Title II disability benefits with a protective filing date of October 3, 2013, with an alleged onset date of disability of March 26, 2013. (See Certified Administrative Transcript (herein Tr. ___) 148-49, ECF No. 18.) The Social Security Administration (“SSA”) denied her claim initially (Tr. 95), and upon reconsideration. (Tr. 100.) Ms. B. timely requested a hearing (Tr. 104), and on December 1, 2015 an Administrative Law Judge (“ALJ”) held a hearing on her disability determination. (Tr.141.) On January 16, 2016, the ALJ found Ms. B. not disabled. (Tr. 18-33.) In his decision, the ALJ found that Ms. B. had severe medically determinable impairments of migraine headaches and temporomandibular joint disorder (Tr. 23), and that she retained the residual functional capacity to perform a restricted form of light work consistent with the ability to perform jobs existing in significant numbers in the national economy. (Tr. 27-28.)

         Ms. B. timely appealed the decision to the Appeals Council (Tr. 15), who subsequently denied her Request for Review on April 17, 2017. (Tr. 1.) She appealed the decision by filing a complaint with this Court on June 8, 2017. (ECF No. 3.) On September 1, 2017, the parties consented to the jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. 636(c). (ECF No. 22.)

         STANDARD OF REVIEW

         42 U.S.C. § 405(g) provides for judicial review of a final decision of the Commissioner. 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). 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). However, the Court “may neither reweigh the evidence nor substitute [its] own judgment for that of the agency.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000) (internal quotations omitted).

         ISSUES PRESENTED FOR REVIEW

         Ms. B. presents three challenges to the ALJ's decision. She argues that: (1) the ALJ's decision to find her medically determinable mental impairments not severe was not based upon substantial evidence, (2) that the residual functional capacity the ALJ assigned was not based upon substantial evidence, and (3) that the ALJ erred in not addressing Ms. B.'s impairments at step three of the disability adjudication process. After review of the issues and arguments, the Court remands this case back to the SSA.

         1. Any Error at Step Two Was Harmless

         The ALJ concluded that Ms. B.'s medically determinable mental impairments of “depression, post-traumatic stress disorder, and generalized anxiety disorder” were non-severe. (Tr. 23.) However, the ALJ found that Ms. B's migraine headaches and temporomandibular joint disorder constitute severe impairments. (Tr. 23) “[T]he failure to find a particular impairment severe at step two is not reversible error when the ALJ finds that at least one other impairment is severe.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Here, because the ALJ found Ms. B.'s migraine headaches and temporomandibular joint disorder constitute severe impairments, any error at step two remains harmless.

         2. Failure to Discuss and Weigh Dr. Chamberlain and Ms. Healy's Opinions

          In determining whether a plaintiff qualifies as disabled, the ALJ must consider and weigh all acceptable medical source opinions. See 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”) Medical opinions “are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant's] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).

         The ALJ failed to evaluate the medical source opinions of Mark Chamberlain, Ph.D., (Tr. 330-333) and Lynda R. Healey, APRN, properly. (Tr. 410.) Both opinions describe limitations Ms. B. suffers due to her psychiatric impairments, but none of these limitations were considered by the ALJ. Consideration of these opinions is warranted when determining the severity and limiting effects of Ms. B.'s psychiatric impairments. 20 C.F.R. § 404.1527(c). Further, the Court declines to recognize these omissions simply as “harmless error.” The ALJ's decision fails to make clear that he considered either opinion statement. Nothing else in the opinion elucidates what the ALJ thought about these opinions or whether he just missed them. Without any analysis by the ALJ, the Court cannot determine how he would have ruled had he followed the proper procedure. Therefore, this Court remands the claim back to the ALJ ...


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