Preece v. Kijakazi

595 F.Supp.3d 1009

Carlotta PREECE, Plaintiff,

v.Kilolo KIJAKAZI, Acting Commissioner, Social Security Administration,¹ Defendant.

CV 20-0728 JHR

United States District Court, D. New Mexico.

Filed March 31, 2022

Laura J. Johnson, Michael Armstrong Law Office, Albuquerque, NM, for Plaintiff.

Brian Baak, Office of the General Counsel, Denver, CO, Manuel Lucero, US Attorney's Office District of New Mexico, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Carlotta Preece's Motion Reverse and Remand for a Rehearing with Supporting Memorandum. [Doc. 20], fully briefed on May 24, 2021. [See Docs. 24 (Response), 25 (Reply), 26 (Notice of Completion of Briefing)]. The parties have consented to have the undersigned Magistrate Judge determine the merits of Preece's Motion and to enter a final judgment in this case as permitted by 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b). Having considered Preece's arguments against current law and having reviewed the relevant portions of the administrative record ("AR "), [Docs. 19-1 through 19-10],² the Court finds that the Appeals Council committed a reversible legal error by failing to consider Preece's supplemental evidence and, therefore, grants her Motion and remands this case to the Social Security Administration for further proceedings, for the following reasons.

I. PROCEDURAL HISTORY

Preece applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on March 12, 2018. [AR at 344, 348]. Preece alleged a disability onset date of August 1, 2004, due to Adjustment Disorder, Chronic Migraine Headache, Irritable Bowel Syndrome with Constipation, Anxiety Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, Short Term Memory Issues, Asthma, Impaired Glucose Tolerance, and Chronic Pain. [See AR at 180]. Her applications were denied at the initial and reconsideration stages of review, and Preece sought and was granted a de novo hearing before an Administrative Law Judge ("ALJ"). [See AR at 177-338]. A hearing was held before ALJ Lillian Richter on March 26, 2019. [AR at 59 (Transcript)]. Preece was assisted at the hearing by a non-attorney representative, and she was questioned by ALJ Richter as was a Vocational Expert. [Id. ]. After the hearing, ALJ Richter issued an unfavorable decision, concluding that Preece did not establish a disabling condition or combination thereof through the date of her decision. [AR at 49]. The ALJ's decision was entered on July 8, 2019. [AR at 50]. Preece's current attorneys entered into the case on October 8, 2019. [See AR at 8].

In response to the ALJ's unfavorable decision, Preece obtained additional evidence in the form of a Medical Assessment of Ability to do Work-Related Activities (Mental) from 07/08/2019 to current examination by Mr. Ed Church, LPCC dated 09/18/2019, and she submitted this evidence to the Appeals Council along with reasons she believed the ALJ's decision was unsupported. [See AR at 11-13, 20-24]. The evidence was submitted in October 2019, and purports to relate to the relevant time period (July 8, 2019, to current examination). [See AR at 11-12, 20]. The form states that Preece has a "marked inability to work an eight hour, 5 days/week schedule" and, among many moderate limitations, she is plagued by the marked inability to carry out detailed instructions, maintain attention and concentration for extended periods of time, complete a normal workday and workweek without interruption from her symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, to accept instructions and respond appropriately to criticism from supervisors, respond appropriately to changes in the workplace, and travel in unfamiliar places or use public transportation. [AR at 12-13]. Preece also submitted the same form from Dr. Mike Kim, PsyD as well as listing determinations for Affective Disorders and Anxiety-Related Disorders from July 8, 2019, through the current examination. [AR at 20]. These forms added that Preece is markedly limited in the ability to sustain an ordinary routine without supervision, work in coordination with/or proximity to others without being distracted by them, get along with coworkers or peers without distracting them or exhibiting behavioral extremes and maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. [AR at 21-22].

The Appeals Council found Preece's rationale for reversing the ALJ's decision unpersuasive, and it exhibited her reasoning. [See AR at 1, 6]. In contrast, the Appeals Council rejected Ms. Preece's additional evidence from LPCC Church and Dr. Kim, finding that: "[t]he Administrative Law Judge decided your case through July 8, 2019. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before July 8, 2019." [AR at 2]. Therefore, the Appeals Council neither exhibited nor considered the evidence. [See AR at 6]. The Appeals Council's decision was entered on May 22, 2020. [AR at 1].

Preece filed a timely civil action in this Court on July 21, 2020. [Doc. 1]. In forma pauperis status was granted, the Commissioner was served and answered the complaint, and the parties consented to proceed before the undersigned United States Magistrate Judge. [Docs. 4, 5, 7, 8, 15]. The administrative record was filed, and the parties briefed the issues as ordered. [Docs. 19 (AR ), 20 (Motion), 24 (Response), 25 (Reply), 26 (Notice of Completion of Briefing)]. The case is now ripe for judicial review. This Court has jurisdiction to review the Appeals Council's decision to disregard Preece's additional evidence and the Commissioner's Final Decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

II. THE COMMISSIONER'S FINAL DECISION

ALJ Richter's decision is the "final decision" of the Commissioner for the purposes of this appeal. The additional evidence Preece submitted must be evaluated in light of this decision and its treatment of prior evidence.

A claimant seeking disability insurance benefits must establish that 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 last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) ; 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).³

At step one of the sequential evaluative process ALJ Richter found that Preece meets the insured status requirements of the Social Security Act and that she has not engaged in substantial gainful activity since August 1, 2004, her alleged onset date. [AR at 36]. At step two, the ALJ found that Preece has the following severe impairments: spondylosis, chronic knee pain, insomnia, asthma, headache, degenerative disc disease (thoracic spine), impingement syndrome (right shoulder), fibromyalgia, obesity, anxiety, major depressive disorder ("MDD"), adjustment disorder with mixed anxiety and depressed mood, and posttraumatic stress disorder ("PTSD"). [AR at 37]. At step three, the ALJ determined that Preece does not have an impairment or combination thereof that meets or medically equals the severity of a listed impairment under the Act. [AR at 38-41].

Before proceeding to steps four and five the ALJ considered Preece's residual functional capacity ("RFC"). See 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's RFC is a multidimensional description of the work-related abilities she retains notwithstanding her impairments. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most. " SSR 96-8p, 1996 WL 374184, at *1. In this case ALJ Richter found Preece to have the RFC to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can occasionally stoop, kneel, crouch, and crawl. The claimant can occasionally climb ramps and stairs and balance and can never climb ladders, ropes or scaffolds. She should avoid exposure to unprotected heights, hazardous machinery, dust, odors, fumes, pulmonary irritants, extreme heat, and extreme cold. The claimant cannot perform work outside. She can perform simple, routine work. The claimant can have occasional interaction with supervisors, coworkers, and members of the public. She can perform work in a workplace with few changes in the routine work setting. The claimant cannot perform assembly line production work and cannot perform work in tandem with other employees. She can frequently reach, handle, and finger bilaterally.

[AR at 41]. The ALJ reached this finding after considering and rejecting evidence submitted from Mr. Church as Preece's "treating professional" because it was "not persuasive, not supported by the objective medical evidence, and not consistent with the evidence from all medical/non-medical sources." [AR at 46]. Moreover, the ALJ found Mr. Church's conclusions to be "at odds with his observations during treatment." [Id. ].

Employing this RFC at Steps Four and Five, and relying on the Vocational Expert's testimony, ALJ Richter determined that Preece has no past relevant work, but that there are jobs that exist in significant numbers in the national economy that Preece can perform despite her limitations. [AR at 48-49]. Accordingly, the ALJ determined that Preece is not disabled as defined in the Social Security Act and denied her applications for disability insurance benefits and supplemental security income. AR at 26.

III. LEGAL STANDARDS

This Court "review[s] the Commissioner's decision to...