Tally v. Kijakazi
| Decision Date | 04 August 2021 |
| Docket Number | No. CV 20-409 CG,CV 20-409 CG |
| Parties | ELVIN TALLY, Plaintiff, v. KILOLO KIJAKAZI, Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Plaintiff Elvin Tally's Motion to Reverse and Remand for Rehearing with Supportive Memorandum, (Doc. 27), (the "Motion"), filed May 11, 2021; Defendant Commissioner Kilolo Kijakazi's Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision (the "Response"), (Doc. 29), filed July 12, 2021; and Mr. Tally's Reply to Brief in Response to Motion to Reverse and Remand (the "Reply"), (Doc. 32), filed July 27, 2021.
Mr. Tally applied for supplemental security income on December 7, 2016, and disability insurance benefits on January 5, 2017, alleging disability beginning November 2, 2016. (Administrative Record "AR" 193-201, 202-203). In his applications, Mr. Tally claimed he was limited in his ability to work due to hepatitis C, chronic liver cirrhosis, Type II diabetes, high blood pressure, artificial right knee, neuropathy, and chronic ear infections. (AR 194). Mr. Tally's applications were denied initially on June 30, 2017, (AR 113-116), and upon reconsideration on October 18, 2017, (AR 123-126). Mr. Tallyrequested a hearing before an Administrative Law Judge ("ALJ"), (AR 127-128), which was held on May 2, 2019, before ALJ Michael Leppala, (AR 14-33).
At the hearing, Mr. Tally appeared before ALJ Leppala with Donna Baslee as his attorney and with impartial Vocational Expert ("VE") Leslie J. White. (AR 17). ALJ Leppala issued his decision on July 3, 2019, finding Mr. Tally not disabled at any time between his alleged disability onset date through the date of his decision. (AR 28). Mr. Tally then requested review of ALJ Leppala's decision before the Appeals Council, which was denied on February 20, 2020. (AR 3-5). Mr. Tally now challenges ALJ Leppala's July 3, 2019 decision denying his claims for supplemental security income and disability insurance benefits. See (Doc. 27).
In his Motion, Mr. Tally argues ALJ Leppala erred in five respects: (1) in assigning less than controlling weight to the opinions of Mr. Tally's treating physician, Dr. Nii Tetteh Tsuru Addy, D.O., ALJ Leppala failed to perform the requisite two-part analysis; (2) he failed to sufficiently explain the basis for affording only "some weight" to the May 2017 and March 2019 opinions of Mr. Tally's treating nurse, Susan Blankenship, N.P.; (3) he failed to sufficiently explain the reasons he rejected the finding of the consultative psychological examiner, Dr. Brian Whitlock, Ph.D., "that Mr. Tally would have difficulty adapting to changes in the workplace and managing stress due to his psychological distress"; (4) he failed to meaningfully discuss why the medical evidence did not support Mr. Tally's complaints that depression and fatigue interfere with his ability to function; and (5) he failed to make specific findings regarding the demands of Mr. Tally's past work as a gas line inspector, as the job is generally performed. (Doc. 27 at 5-22) (quotation marks omitted).
The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because ALJ Leppala erred in his consideration of Dr. Addy's opinion, the Court finds Mr. Tally's Motion is well-taken and should be GRANTED, and this case is REMANDED to the Commissioner for further proceedings consistent with this opinion.
The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Hum. Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's "failure to apply the correct legal standards, or to show . . . that she has done so, are also grounds for reversal." Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. See Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision. See 42 U.S.C. § 405(g) (2018). Therefore, when the Appeals Council denies review, the ALJ's decision becomes the Commissioner's final decision for purposes of judicial review. Threet v. Barnhart, 353F.3d 1185, 1187 (10th Cir. 2003) (citing O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994)).
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal, 331 F.3d at 760 (quoting Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.1989)) (internal quotation marks omitted). An ALJ's 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." Langley, 373 F.3d at 1118 (quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988)) (internal quotation marks omitted). While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record must include "anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citing Sisco v. United States Dep't of Health and Human Servs., 10 F.3d 739, 741 (10th Cir.1993); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994)). However, "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)) (quotation marks omitted).
For purposes of supplemental security income and disability insurance benefits, a claimant establishes a disability when she 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 lastfor a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 42 U.S.C. 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process ("SEP"). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
At the first four steps of the SEP, the claimant bears the burden of showing (1) she is not engaged in "substantial gainful activity"; (2) she 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 either (3) her impairment(s) meet or equal one of the "listings" of presumptively disabling impairments found in 20 C.F.R. pt. 404, subpt. P, app. 1.; or (4) she is unable to perform her "past relevant work." 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also Grogan, 399 at 1261. If the ALJ determines the claimant cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1); Grogan, 399 F.3d at 1261. At step five, the Commissioner bears the burden of showing that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.
In his application, Mr. Tally claimed he was limited in his ability to work due to hepatitis C, chronic liver cirrhosis, Type II diabetes, high blood pressure, artificial right knee, neuropathy, and chronic ear infections. (AR 194). At step one, ALJ Leppala determined Mr. Tally had not engaged in substantial gainful activity since November 2, 2016, the alleged disability onset date. (AR 19). At step two, ALJ Leppala found Mr.Tally had the severe impairments of status post right knee replacement, cirrhosis of the liver, and hepatitis C. (AR 19).
At step three, ALJ Leppala determined Mr. Tally's impairments, solely or in combination, did not meet or equal one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. (AR 21). ALJ Leppala then found Mr. Tally had the RFC to:
occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds, stand[] and/or walk[] for about six hours in an eight-hour workday, and sit[] for about six hours in an eight-hour workday, all with normal breaks . . . occasionally climb[] ramps or stairs, never climb[] ladders, ropes, or scaffolds, frequently balance[e], frequently stoop[], occasionally kneel[], crouch[], and crawl[].
(AR 22).
In formulating Mr. Tally's RFC, ALJ Leppala stated he considered his symptoms and the extent to which those symptoms could reasonably be accepted as consistent with objective medical and other evidence, as required by 20 C.F.R. §§ 404.1529, 416.929, and Social Security Ruling ("SSR") 16-3p. (AR 22). ALJ Leppala stated he also considered opinion evidence, consistent with the requirements of 20 C.F.R. §§ 404.1527 and 416.927. (AR 22). He concluded that while some of Mr. Tally's impairments could be expected to cause his alleged...
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