United States District Court, D. New Mexico
ANDREW T. ROMERO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing With Supporting
Memorandum (Doc. 19), filed September 29, 2016
(hereinafter “motion”). On January 3, 2017,
Defendant filed a response (Doc. 23) to
Plaintiff's motion and, on January 18, 2017, Plaintiff
filed a reply (Doc. 24). In accordance with 28
U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73(b), the parties
have consented to have the undersigned United States
Magistrate Judge conduct all proceedings and enter a final
judgment in this case. See [Docs. 4 and
8]. The Court has considered Plaintiff's motion,
Defendant's response, Plaintiff's reply, and the
relevant law. Additionally, the Court has meticulously
reviewed and considered the entire administrative record.
[Doc. 13]. For the reasons set forth below, the
Court FINDS that Plaintiff's motion should be DENIED in
part and GRANTED in part and that the decision of the
Commissioner of the Social Security Administration
(hereinafter “Commissioner”) should be REMANDED
for rehearing on the issue of availability of work that
Plaintiff can perform.
2, 2009, Plaintiff filed applications for Disability
Insurance Benefits (hereinafter “DIB”) and
Supplemental Security Income (hereinafter “SSI”),
alleging disability that began on February 1, 2007 (Doc.
13-7 at 2-6). Plaintiff's DIB and SSI applications
were denied at the initial level on November 16, 2009
(Doc. 13-6 at 2), and at the reconsideration level
on July 7, 2010 (id. at 11). Plaintiff requested a
hearing to review the denial of his applications
(id. at 18), and Administrative Law Judge Barry
O'Melinn (hereinafter “ALJ”) conducted a
hearing on November 15, 2011 (Doc. 13-4 at 2-43).
Plaintiff appeared, represented by his former attorney, and
testified. Id. at 7-33, 41. Vocational Expert
Elizabeth Wheeler also appeared, by phone, and testified.
Id. at 33-41. On March 13, 2012, the ALJ issued a
decision (Doc. 13-3 at 11-20) (hereinafter
“2012 Decision”) finding that Plaintiff
“has not been under a disability within the meaning of
the Social Security Act from February 1, 2007, through the
date of this decision” (id. at 11). On May 8,
2012, Plaintiff requested that the Appeals Council review the
ALJ's 2012 Decision. [Doc. 13-3 at 7]. On March
18, 2013, the Appeals Council denied Plaintiff's request
for review on the ground that there was “no reason
under our rules to review the [ALJ]'s decision.”
Id. at 2. Shortly thereafter, on May 1, 2013,
Plaintiff filed new applications for SSI and DIB benefits,
alleging an onset date of March 14, 2012. [Doc.
13-17 at 4-10 and 13-14, respectively]. Plaintiff's
2013 DIB application was denied on May 6, 2013, on the ground
that he did not qualify for disability benefits because he
did not have enough work credits. [Doc. 13-15 at 6].
Plaintiff's 2013 SSI application was denied initially on
August 12, 2013 (id. at 9), and at the reconsideration level
on December 30, 2013 (id. at 20). Plaintiff appealed
the Appeals Council's March 18, 2013 ruling on his first
claims to this Court, which subsequently issued a decision
reversing and remanding that decision, on the ground that the
ALJ impermissibly failed to discuss the weight he assigned to
Dr. [K.] Glass's [November 2009] opinion.”
Romero v. Colvin, 13-0458 SMV, Doc. 34 at 5
(D. N.M. September 8, 2014) (unpublished).
remand, the Appeals Council issued an October 23, 2014 order
that: (1) vacated the ALJ's 2012 decision; (2) remanded
the case back to the ALJ; and (3) directed the ALJ to combine
Plaintiff's two pending claim files, create a single
electronic record, and issue a new decision on the
consolidated cases. [Doc. 13-14 at 44-45]. Pursuant
to that order, the ALJ held a new hearing on August 26, 2015
(hereinafter “2015 Hearing”), at which Plaintiff
appeared, represented by his current attorney, and testified.
[Doc. 13-13 at 3, 9-27]. Vocational Expert Sandra M.
Trost also appeared and testified. Id. at 27-30. At
the 2015 Hearing, Plaintiff's counsel requested to amend
the alleged onset date of Plaintiff's disability to
September 8, 2008. Id. at 6-7. That request was
granted by the ALJ. Id. On October 19, 2015, the ALJ
issued a new decision (hereinafter the “2015
Decision”), finding that Plaintiff “has not been
under a disability . . . from September 1, 2008 through the
date of this decision.” [Doc. 13-12 at 6].
Plaintiff did not file exceptions to the ALJ's 2015
decision, and the Appeals Council did not assume jurisdiction
within sixty days. Therefore, pursuant to 20 C.F.R. §
404.984(d), the ALJ's decision became the final decision
of the Commissioner. On February 19, 2016, Plaintiff filed
his complaint in this case. [Doc. 1].
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. See 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. Hamlin, 365
F.3d at 1214; Langley, 373 F.3d at 1118.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118 (citation and quotation
marks omitted); Hamlin, 365 F.3d at 1214 (citation
and quotation marks omitted); Doyal, 331 F.3d at 760
(citation and quotation marks omitted). 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 (citation and quotation
marks omitted); Hamlin, 365 F.3d at 1214 (citation
and quotation marks omitted). 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)
(citations omitted). “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
purposes of social security disability claims, a person
establishes a disability when he or 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. § 1382c(a)(3)(A); 20 C.F.R.
§ 416.905(a). In light of this definition for
disability, a five-step sequential evaluation process
(hereinafter “SEP”) has been established for
evaluating a disability claim. 20 C.F.R. § 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) the claimant is not engaged in
“substantial gainful activity;” and (2) the
claimant 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) the claimant's impairment(s) meet(s) or
equal(s) one of the “Listings” of presumptively
disabling impairments; or (4) the claimant is unable to
perform his or her “past relevant work.” 20
C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d
at 1261. At the fifth step of the evaluation process, the
burden of proof shifts to the Commissioner to show that the
claimant is able to perform other work in the national
economy, considering his or her residual functional capacity
(hereinafter “RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
Plaintiff's Age, Education, Work Experience, and Medical
History; and the ALJ's Decision
was born on October 1, 1966, and was 41 years old on
September 1, 2008, the alleged date of disability onset.
[Doc. 13-12 at 5 and 20]. On October 22, 2015, the
date of the ALJ's 2015 Decision, Plaintiff was age 49.
Thus, Plaintiff was both a “younger person age
18-44” and a “younger person age
45-49” at all times pertinent to the ALJ's
2015 Decision regarding his disability claims. Although
Plaintiff suffers from several severe joint impairments, he
has not challenged the ALJ's ruling on the basis of those
impairments. Instead, Plaintiff asserts that the ALJ erred in
his determination of the limitations imposed by his mental
impairments, as well as that VE Trost provided unreliable
information at step five of the SEP. Therefore, the Court
will not discuss Plaintiff's physical or exertional
limitations in any detail. It is sufficient to note that
those physical impairments led the ALJ to find that Plaintiff
now has the RFC only to perform “sedentary” work.
medical records include: progress notes dated March 8, 2012
from Valencia Counseling Services, Inc. (Doc. 13-20
at 2-6); psychiatric evaluation dated June 26, 2013 by Carol
Lynn Hunter, CNS (Doc. 13-25 at 37-41); Mental RFC
dated July 28, 2015 by Paul Weeks, LPCC (Doc. 13-28
at 19-22); treatment records for the period from October 4,
2013 to July 31, 2014 (Doc. 13-27 at 15-51), and the
period from August 22, 2014 to July 7, 2015 (Doc.
13-28 at 24-48), from Valle del Sol; and treatment
records from University of New Mexico Health Sciences Center
for the period from October 22, 2013 to August 5, 2015
(Doc. 13-29 at 3-40). Where relevant,
Plaintiff's medical records are discussed in more detail
one of the five-step evaluation process, the ALJ found that,
Plaintiff “has not engaged in substantial gainful
activity since September 1, 2008, the alleged onset
date.” [Doc. 13-12 at 8]. At step two, the ALJ
found that Plaintiff has the following severe impairments:
“degenerative disc disease of the lumbar spine,
degenerative joint disease of the right hip, degenerative
joint disease of the shoulders, osteoarthritis of the left
metatarsal phalangeal joint status post[-]surgical fusion, an
affective disorder, and an anxiety related disorder.”
Id. At the third step, the ALJ found that Plaintiff
“does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926).” Id. at 10.
In so finding, the ALJ considered Listings 1.02 (major
dysfunction of a joint, 1.04 (disorders of the spine), 12.04
(affective disorders), and 12.06 (anxiety related disorders).
Id. With respect to the paragraph B criteria for
these Listings, the ALJ found that Plaintiff has mild
restriction of his activities of daily living, mild
difficulties with social functioning, moderate difficulties
with concentration, persistence or pace, has had ...