United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
CARMEN E. GARZA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Veronica
Alvarez's Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum (the
“Motion”), (Doc. 29), filed September 19, 2016;
Defendant's Brief in Response to Plaintiff's
Motion to Reverse and Remand for a Rehearing (the
“Response”), (Doc. 32), filed December 2, 2016;
and Ms. Alvarez's Reply in Support of Motion to
Reverse and Remand for Rehearing with Supportive
Memorandum (the “Reply”), (Doc. 34), filed
December 16, 2016. District Judge C. LeRoy Hansen referred
this case to Magistrate Judge Carmen E. Garza to perform
legal analysis and recommend an ultimate disposition of the
case. (Doc. 8).
17, 2007, Veronica Alvarez applied for Supplemental Social
Security Income under Title II of the Social Security Act,
alleging disability beginning on June 1, 2005.
(Administrative Record “AR” 129-131). Ms.
Alvarez's claim was initially denied on July 16, 2010,
(AR 68-71), and again upon reconsideration on September 15,
2010. (AR 72-75). A request for a hearing was filed, (AR
80-81), and a hearing was held on August 2, 2011, before
Administrative Law Judge David R. Wurm. (AR 39-63). Ms.
Alvarez, John W. Hickman, an impartial medical expert, and
Mary Diane Weber, an impartial vocational expert
(“VE”) testified at the hearing. (AR 39-63). Ms.
Alvarez was represented at the hearing by non-attorney
representative Will Sanchez. (AR 25). The ALJ issued an
unfavorable decision on September 20, 2011, finding that Ms.
Alvarez was not disabled under the SSA. (AR 22-38).
current counsel, Michael D. Armstrong, Ms. Alvarez filed an
application for review by the Appeals Council on October 24,
2011, (AR 16-17), which was denied on February 22, 2013, (AR
1-5), making the decision of ALJ Wurm the final decision of
the Commissioner of the Social Security Administration (the
“Commissioner” and “SSA”). This Court
reviewed the case and remanded it back to the ALJ to
“consider the entire record.” (AR 410).
Eric Weiss held a second hearing for Ms. Alvarez on August
12, 2015. (AR 336-374). Ms. Alvarez and VE Evelyn Hartman
testified at the hearing. (Id.). ALJ Weiss issued a
partially favorable decision on August 28, 2015. (AR
312-335). ALJ Weiss found Ms. Alvarez disabled from February
23, 2010 through January 27, 2013. (AR 316). However, the ALJ
determined that beginning on January 28, 2013, Ms. Alvarez
showed medical improvement related to her ability to work;
therefore, her disability ended on January 28, 2013. (AR
316-17). Ms. Alvarez filed an application for review by the
Appeals Council, which was denied on February 22, 2013, (AR
418-422), making the decision of ALJ Weiss the final decision
of the Commissioner for purposes of this appeal.
Alvarez argues that the ALJ committed reversible, legal error
by failing to (1) analyze whether her disabling impairments
were in “temporary remission, ” and (2)
demonstrate that any medical improvement was
“related” to her ability to work.
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 ALJ did not consider whether Ms. Alvarez's
medical improvement was based on a temporary remission, the
Court RECOMMENDS that the Motion be GRANTED.
Standard of Review
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).
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)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income, a person
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 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,
first four steps of the SEP, the claimant has the burden to
show that: (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) either meet or equal one of the
“Listings” of presumptively disabling impairments; 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); Grogan, 399 F.3d at 1261. If
the ALJ determines the claimant cannot engage in past
relevant work, he 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 in the national economy, considering her RFC, age,
education, and work experience. Grogan, 399 F.3d at