United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's Motion to
Reverse and Remand for Rehearing with Supporting Memorandum
(Doc. 17), filed July 13, 2016. Pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure
73(b), the parties have consented to me serving as the
presiding judge and entering final judgment. Doc. 9.
Having reviewed the parties' submissions, the relevant
law, and the relevant portions of the Administrative Record,
the Court will grant the Motion.
filed applications with the Social Security Administration
for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act on
July 15, 2011. AR at 88-91; 197-212. Plaintiff alleged
a disability onset date of December 31, 2009, due to
“scoliosis of the lower spine; degenerative disc
disease; arthritis; [and] menstrual migraines.”
AR at 92, 100. Prior to claiming disability
Plaintiff worked as a clerical worker, a bartender, a
waitress, a manager of a gift shop, and a counter
helper/sales person at a sign supply company. AR at
76. Plaintiff testified that she stopped working at this
final position (at a family business) because she was
excessively calling and coming in late because of her
conditions. AR at 51-52.
agency denied Plaintiff's claims initially and upon
reconsideration, and she requested a hearing. AR at
88-129. After a de novo hearing, Administrative Law
Judge Frederick Upshall Jr. (“the ALJ”) issued an
unfavorable decision on April 7, 2014. AR at 20-37.
Plaintiff submitted a Request for Review of the ALJ's
Decision to the Appeals Council, which the Council declined
on July 31, 2015. AR at 1-3, 13-16. As such, the
ALJ's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003). This Court has jurisdiction to review the
decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
claimant seeking disability 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); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R.
§ 404.1505(a); 20 C.F.R. § 416.905(a). The
Commissioner must use a sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §
404.1520(a)(4); 20 C.F.R. § 416.920(a)(4); see Wall
v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
One of the sequential evaluation process, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
during the relevant time period. AR at 22. At Step
Two, he determined that Plaintiff had the severe impairments
of “degenerative disc disease, scoliosis of the lumbar
spine, migraine headaches, osteoarthritis, and an Adjustment
Disorder. . . .” AR at 23. At Step Three, the
ALJ concluded that Plaintiff's impairments, individually
and in combination, did not meet or medically equal the
regulatory “listings.” AR at 23-25.
plaintiff does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e); 20 C.F.R.
§ 416.920(a)(4). RFC is a multidimensional description
of the work-related abilities a plaintiff retains in spite of
her medical impairments. 20 C.F.R. § 404.1545(a)(1); 20
C.F.R. § 416.945(a)(1). In this case the ALJ determined
that Plaintiff retained the RFC to
perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b) except she requires a sit/stand option allowing
her to sit or stand alternatively at will, with the maximum
length of time that she is able to sit or stand at one time
being 30 to 45 minutes. No climbing ladders, ropes, or
scaffolds; occasional climbing of ramps and stairs.
Occasional stooping, crouching, kneeling, and crawling.
Occasional reaching and overhead reaching with the left upper
extremity. Only occasional interaction with the public that
is incidental to the work performed. She is limited to
simple, unskilled work.
AR at 26. Employing this RFC at Steps Four and Five,
the ALJ determined that Plaintiff was unable to perform her
past relevant work. AR at 35. However, the ALJ found
that there were jobs that exist in significant numbers in the
national economy that Plaintiff can perform; specifically,
the ALJ determined that Plaintiff maintains the RFC to work
as an assembly worker, a garment sorter, and a wire cutter
stripper. AR at 35-36. Accordingly, the ALJ
determined that Plaintiff was not disabled from her alleged
onset date through the date of his decision, and denied
benefits. AR at 47.
Court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence and whether the correct legal standards
were applied.” Vigil v. Colvin, 805 F.3d 1199,
1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area
is grounds for remand. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012).
Dr. Owen's Opinion
was little evidence pertaining to Plaintiff's mental
health in the record prior to the hearing before the ALJ,
which took place on June 13, 2013. AR at 44. In
fact, Plaintiff testified at the hearing that she had not
received treatment for any mental or emotional health issues
- although her sisters recommended that she do so - due to
her lack of insurance. AR at 69. Given this
testimony, the ALJ thought it prudent to send Plaintiff for a
consultative psychological examination. AR at 20,
was evaluated by John Owen, Ph.D., on September 10, 2013.
AR at 533. Ultimately, Dr. Owen diagnosed Plaintiff
with “Adjustment Disorder with Mixed Anxiety and
Depressed Mood. Social Anxiety, provisional.”
AR at 534. In his statement of opinion of abilities
Dr. Owen made the following findings:
1. Understand and Remember
A. Detailed or complex instructions: mild difficulty
B. Very short and simple instructions: no difficulty
2. Sustained Concentration and Task Persistence
A. Ability to carry out instructions: moderate to marked