Villalobos v. Colvin
| Decision Date | 29 March 2016 |
| Docket Number | No. CV-15-00463-CG,CV-15-00463-CG |
| Parties | REFUGIO VILLALOBOS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on Plaintiff Refugio Villalobos' Motion to Remand or Reverse, (Doc. 17), and Plaintiff's Brief in Support of Motion to Reverse or Remand), (Doc. 18), both filed September 15, 2015, (together the "Motion"; Defendant's Brief in Response to Plaintiff's Motion to Reverse or Remand ("Response"), (Doc. 22), filed January 19, 2016; and Plaintiff's Reply in Support of Motion to Reverse or Remand ("Reply"), (Doc. 24), filed February 4, 2016.
On January 5, 2012, Mr. Villalobos filed an application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, alleging disabilities commencing on April 26, 2010. (Administrative Record "AR" 157). Mr. Villalobos' claim for benefits was initially denied, (AR 77), and subsequently denied upon reconsideration. (AR 79). A request for a hearing was filed on April 4, 2013, (AR 85-86), and a hearing was held on July 31, 2014 before Administrative Law Judge ("ALJ") Michelle K. Lindsay. (AR 46-74). Mr. Villalobos and Thomas Greiner, an impartial vocational expert ("VE"), testified at the hearing. (Id.). A Spanish-English language interpreter was also present at the hearing for Mr. Villalobos. (AR 48). Mr. Villalobos was not represented at the hearing and signed a waiver of his right to representation. (AR 134). ALJ Lindsay issued an unfavorable decision on December 22, 2014, finding that Mr. Villalobos was not disabled on or before April 26, 2010 through the time of the decision. (AR 26-45). Through counsel, Mr. Villalobos filed an application for review by the Appeals Council on January 29, 2015, (AR 25), which was denied on May 1, 2015, (AR 1-7), making the decision of ALJ Lindsay the final decision of the Commissioner of the Social Security Administration (the "Commissioner") for purposes of this appeal.
Mr. Villalobos argues that the ALJ committed reversible, legal error because: (1) Mr. Villalobos did not and could not have knowingly waived his right to counsel; (2) the interpreter was not sworn in until after evidence was taken; (3) the finding of non-severity at step two was erroneous; (4) the prospect of corrected vision should have been analyzed at step four , not step two of the sequential evaluation process; and (5) there was an improper credibility analysis. (Doc. 18 at 7-18). Additionally, Mr. Villalobos argues that the Appeals Council erroneously rejected new evidence of a mental impairment. (Doc. 18 at 9-11).
The Court has reviewed the Motion, the Response, the Reply, and relevant law. Additionally, the Court has meticulously reviewed and considered the entire administrative record. Because the Appeals Council improperly dismissed Mr. Villalobos' new evidence of a mental impairment, the Court finds that the Motion should be GRANTED and that this case be REMANDED to the Commissioner for further proceedings.
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 & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. 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). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which generally is the ALJ's decision, not the Appeals Council's denial of review. 20 C.F.R. § 404.981; 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." Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. 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; Hamlin, 365 F.3d at 1214. While a court may not re-weigh the evidence or try the issues de novo, its examination of the record as a whole 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). "The 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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
For purposes of DIB, a person establishes a disability when he 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 last for 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. § 416.905(a). In light of this definition for disability, a five-step sequential evaluation process ("SEP") has been established for evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
At the first four steps of the SEP, the claimant has the burden to show that: (1) he is not engaged in "substantial gainful activity"; (2) he 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 (3) his impairment(s) either meet or equal one of the "Listings"1 of presumptively disabling impairments; or (4) he is unable to perform his "past relevant work." 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If the ALJ determines the claimant cannot engage in past relevant work, she will proceed to step five of the evaluation process. At step five the burden of proof shifts to the Commissioner to show the claimant is able to perform other work inthe national economy, considering his RFC, age, education, and work experience. Grogan, 399 F.3d at 1257.
Mr. Villalobos initially applied for DIB alleging several medical impairments: blindness in his right eye, blurry vision in his left eye, diabetes, and high blood pressure. (AR 173). As proof of these medical impairments, Mr. Villalobos submitted records from several doctors dated from 2010 to 2014. (AR 288-347).
At step one, the ALJ determined that Mr. Villalobos meets the insured status requirement through June 30, 2020 and that he had not engaged in substantial gainful activity after April 26, 2010. (AR 35). At step two, the ALJ found that Mr. Villalobos had several medically determinable impairments: blind right eye; left vision correctable to 20/20; diabetes mellitus; hypertension; hypercholesterolemia; and amputation of distal phalanx of non-dominant thumb and index finger. (AR 36) However, the ALJ found that Mr. Villalobos did not have a severe impairment or combination of impairments pursuant to 20 C.F.R. § 404.1521 et seq. (Id.).
Mr. Villalobos argues that the ALJ committed reversible, legal error because: (1) Mr. Villalobos did not and could not have knowingly waived his right to counsel; (2) the interpreter was not sworn in until after evidence was taken; (3) the finding of non-severity at step two was erroneous; (4) the prospect of corrected vision should have been analyzed at step four, not step two of the SEP; and (5) there was an improper credibility analysis. (Doc. 18 at 7-18). Additionally, Mr. Villalobos argues that theAppeals Council erroneously rejected new evidence of a mental impairment. (Doc. 18 at 9-11).
The Commissioner responds that Mr. Villalobos knowingly waived his right to counsel. (Doc. 22 at 9). The Commissioner states that the ALJ reasonably found that Mr. Villalobos did not have any severe impairment, as the medically determinable impairments were long standing and Mr. Villalobos worked while afflicted with them. (Doc. 22 at 5). Finally, the Commissioner argues that even if the Appeals Council should have accepted the new evidence, given that no reasonable fact-finder could find Mr. Villalobos disabled based on the evidence, any error in that regard would be harmless. (Id. at 7-9).
A. Knowing Waiver of Right to Counsel in Social Security Cases
The Social Security Administration's ("SSA") Hearings, Appeals and Litigation Law Manual ("HALLEX") requires that where a claimant is unrepresented, "the ALJ will ensure on the record that the claimant has been properly advised of the right to representation and that the claimant is capable of making an informed choice about representation." SSA, HALLEX I-2-6-52, available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-52.html. ALJ's are not required to "recite specific questions regarding the right to representation or the claimant's capacity to make an informed choice about representation." Id. If a claimant is illiterate, the ALJ must explain that both free and contingent representation is available to the claimant. Id. Finally, an ALJ is required to have a claimant sign a written waiver of the right to counsel. Id. Additionally, 42 U.S.C. § 406 requires the Commissioner to notify...
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