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Cervantez v. Commissioner of Social Security

United States District Court, W.D. Kentucky, Louisville Division

February 28, 2017

LUIS CERVANTEZ, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant

          MEMORANDUM OPINION AND ORDER

          Colin Lindsay, United States District Court Magistrate Judge

         Introduction

         Luis Cervantez challenges the Commissioner's denial of claims for disability insurance benefits and supplemental security income benefits. (DN 1 at ¶ 4.)

         For the reasons below, the Court will remand this matter to the Commissioner.

         Background

         As a preliminary matter, the Court notes that the Administrative Record is full of conflicting references to Cervantez's gender. The underlying records from the Social Security Administration's field office consistently identify Cervantez as “Female.”[1] Letters from the Social Security Administration to Cervantez address Cervantez as “Ms. Cervantez.”[2] On the other hand, Cervantez's attorney consistently refers to him as “Mr. Cervantez.”[3] The Administrative Law Judge (“ALJ”) described Cervantez as a “man, ” but that decision also includes female pronouns.[4] The Court will refer to Cervantez by name only.

         For clarity, the Court cites to the document number and Page ID#.

         On September 28, 2011, Janice Downs, Cervantez's representative, applied for disability insurance and supplemental security income benefits on Cervantez's behalf. (DN 10-2 at 62; DN 10-3 at 143.) Initially, Cervantez alleged disability beginning on May 15, 2011. (DN 10-2 at 62.) Later, Cervantez amended the claims to allege disability beginning on June 1, 2012. (Id.)

         On initial review of both claims, the Commissioner determined that Cervantez had two severe impairments: a “primary” diagnosis of Osteoarthrosis and Allied Disorders and a “secondary” diagnosis of Affective Disorders. (DN 10-3 at 148, 160.) Ann Demaree, Ph.D., conducted a psychiatric review of Cervantez's mental impairment. (Id. at 148 - 49, 160 - 61.) Demaree determined that Cervantez was mildly restricted in the activities of daily living; has mild difficulty in maintaining social functioning; and has moderate difficulty in maintaining concentration, persistence, or pace. (Id. at 148, 160.) The Commissioner denied both claims, finding that Cervantez was not disabled. (Id. at 154, 166.)

         On reconsideration of both claims, the Commissioner determined that Cervantez had three severe impairments: a “primary” diagnosis of Osteoarthrosis and Allied Disorders; a “secondary” diagnosis of Affective Disorders; and an additional diagnosis of Borderline Intellectual Functioning. (Id. at 176, 193). Jane Cormier, Ph.D., conducted a psychiatric review of Cervantez's mental impairment. (Id. at 176 - 77, 193 - 94.) Cormier determined that Cervantez was mildly restricted in the activities of daily living; has moderate difficulty in maintaining social functioning; and has moderate difficulty in maintaining concentration, persistence, or pace. (Id. at 177, 194.) The Commissioner denied reconsideration of Cervantez's claims, again finding that Cervantez was not disabled. (Id. at 185, 202.)

         Cervantez appeared for a hearing, represented by counsel. (DN 10-2 at 62.) Cervantez testified. (Id. at 81 - 104.) Vocational expert Sharon Lane also testified. (Id. at 104 - 12.) The ALJ ruled that Cervantez was not disabled. (Id. at 72.)

         First, the ALJ found that Cervantez met the insured status requirements of the Social Security Act through September 30, 2016. (Id. at 64.) Second, the ALJ found that Cervantez has not engaged in substantial gainful activity since May 15, 2011. (Id.) Third, the ALJ found that Cervantez “has the following severe impairments: degenerative disc disease, hypertension, depression, and borderline intellectual functioning.” (Id.) Additionally, the ALJ discussed Cervantez's other impairments which include gout and osteoarthritis of the knee and hip. (Id.)

         Fourth, the ALJ found that Cervantez does not have an impairment or combination of impairments that meets or equals a listed impairment. (Id. at 65.) Fifth, the ALJ concluded that Cervantez has the residual functional capacity to perform light work. (Id. at 67.) Sixth, the ALJ concluded that Cervantez is capable of performing his past relevant work. (Id. at 70.) Seventh, the ALJ concluded that Cervantez was not disabled. (Id. at 72.)

         The Appeals Council denied Cervantez's request for review. (DN 10-2 at 38.) Now, Cervantez's claims are fully briefed and ripe for review. (See DNs 13 & 16.)

         Standard of Review

         The Commissioner's factual findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). The Court should affirm the Commissioner's conclusion unless the ALJ failed to apply the correct legal standard or made fact findings unsupported by substantial record evidence. Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). The Court does not resolve conflicting evidence or examine the claimant's credibility. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001).

         “The failure to comply with the agency's rules warrants a remand unless it is harmless error.” Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014). An ALJ's “failure to follow agency rules and regulations denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.” Id. at 729. Thus, “[e]ven if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (brackets added).

         Discussion

         The Commissioner evaluates whether a claimant is disabled through a sequential five-step process. 20 C.F.R. § 404.1520(a)(1); Sullivan v. Finkelstein, 496 U.S. 617, 620 (1990). Steps three, four, and five are at issue in this case.

         At step three, the ALJ considers the severity of the claimant's impairment. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant has an impairment that meets or equals one of the listed impairments, the claimant is disabled. Id. The listed impairments “were designed to operate as a presumption of disability that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990). “For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is equivalent to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. at 530 (internal quotation marks omitted).

         The Commissioner applies a “special technique” in evaluating a mental impairment. 20 C.F.R. § 404.1520a(a). The special technique involves evaulating a claimant's ability to “[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” Id. § 404.1520a(c)(3). The Commissioner rates these abilities on a scale: none, mild, moderate, marked, and extreme. Id. § 404.1520a(c)(4). A rating of extreme “represents a degree of limitation that is incompatible with the ability to do any gainful activity.” Id. In addition to medical evidence that meets the medical criteria, a claimant must show an extreme limitation of one of the abilities or two marked limitations. 20 C.F.R. Pt. 404 Subpt. P. App. 1 Part A2 § 12.00(A)(2)(a) & (b). Or, in addition to medical evidence that meets the medical criteria, a claimant must show that the mental disorder has lasted at least two years. Id. § 12.00(A)(2)(a) & (c).

         For an intellectual disorder, a claimant must show “significantly subaverage general intellectual functioning; significant defects in current adaptive functioning; and evidence that demonstrates or supports (is consistent with) the conclusion that your disorder began prior to age 22.” Id. § 12.00(A)(2)(c)(3).

Listing 12.05 has two paragraphs, designated A and B, that apply to only intellectual disorder. Each paragraph requires that you have significantly subaverage general intellectual functioning; significant deficits in current adaptive functioning; and evidence that demonstrates or supports (is consistent with) the conclusion that your disorder began prior to age 22.

Id. § 12.00A(3).

         In Gentry, the court of appeals remanded for a finding of disability when an ALJ's determination of whether the plaintiff's impairments met or equaled listed impairment lacked specific analysis, among other reasons. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014) (“The ALJ concluded under step three, without any analysis specific to the severity of Gentry's psoriasis or psoriatic arthritis, that none of Gentry's medical impairments met the severity of the listed impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.”); see also, Siegel v. Colvin, 2014 WL 4388151 *4 (N.D. Oh. 2014) (“However, the ALJ did not provide any analysis of Plaintiff's physical impairments at step three, and failure to do so was reversible error.”); cf. Bentley v. Colvin, 2016 WL 4578335 *2 (E.D. Ky. 2016) (“This case should be remanded for the ALJ and the parties to consider whether Plaintiff's liver disease meets a Listing under 5.05.”).

         At step three, if the impairment meets or equals a listed impairment, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment does not meet or equal a listed impairment, the analysis proceeds to step four. Id. § 404.1520(a)(4).

         At step four, the ALJ considers the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Residual functional capacity is the claimant's “remaining capacity for work once her limitations have been taken into account.” Webb v. ...


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