United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR United States Magistrate Judge.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
[Doc. 18] (“Motion”), filed on May 24, 2016. The
Commissioner responded on August 18, 2016. [Doc. 21].
Plaintiff replied on September 1, 2016. [Doc. 22]. The
parties have consented to the undersigned's entering
final judgment in this case. [Doc. 9]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that substantial evidence does not
support the Administrative Law Judge's
(“ALJ”) reasons for rejecting the opinion of the
treating physician. Accordingly, the Motion will be granted,
and the case will be remanded for further proceedings.
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 Commissioner'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.
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. The 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 [Commissioner]'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] 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.
failure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant 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),
light of this definition for disability, a five-step
sequential evaluation process has been established for
evaluating a disability claim. 20 C.F.R. §§
404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137,
140 (1987). At the first four steps of the sequential
process, the claimant has the burden to show that: (1) she is
not engaged in “substantial gainful activity”;
and (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. 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
her residual functional capacity (“RFC”), age,
education, and work experience. Grogan, 399 F.3d at
applied for a period of disability, disability insurance
benefits, and supplemental security income on July 12, 2012.
Tr. 25. She alleged a disability-onset date of May 1, 2012.
Id. Her claims were denied initially and on
reconsideration. Id. Plaintiff requested a hearing
before an ALJ. Id. ALJ Michael S. Hertzig held a
hearing on April 2, 2014. Id. Plaintiff appeared
with her attorney and her adult daughter, Eileen Harry. Tr.
25, 60. The ALJ heard testimony from Plaintiff, Ms. Harry,
and an impartial vocational expert (“VE”), Mary
Diane Weber. Tr. 25, 60-101.
issued his unfavorable decision on May 13, 2014. Tr. 34. At
step one, he found that Plaintiff had not engaged in
substantial gainful activity since the onset date of her
alleged disability. Tr. 27. Because Plaintiff had not engaged
in substantial gainful activity for at least 12 months, the
ALJ proceeded to step two. Id. There, he found that
Plaintiff suffered from the following severe impairments:
“seronegative rheumatoid arthritis and anemia with
status post hysterectomy[.]” Id. At step
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 28.
none of Plaintiff's impairments met or medically equaled
a Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
28-33. In doing so, the ALJ rejected the opinions of
Plaintiff's treating physician, Erin Nealon, D.O., as to
Plaintiff's functional limitations and, instead, adopted
the opinions of the non-examining physicians, Drs. Whaley and
Malak. Tr. 29, 30, 32-33 (ALJ's rejecting Dr.
Nealon's opinions); Tr. 32 (ALJ's adopting the
opinions of Drs. Whaley and Malak). The ALJ found that
“[Plaintiff] has the [RFC] to perform light work as
defined in 20 [C.F.R. §§] 404.1567(b) and
416.967(b) with occasional climbing.” Tr. 28. At step
four, the ALJ found that Plaintiff was unable to perform any
past relevant work. Tr. 33. At step five, the ALJ found that,
based on Plaintiff's RFC, age, education, and work
experience and the testimony of the VE, Plaintiff could
perform work that exists in significant numbers in the
national economy. Tr. 33-34. Ultimately, the ALJ found that
Plaintiff had not been under a disability, as defined by the
Act, during the relevant time period, and he denied the
claims. Tr. 34.
the ALJ denied the claim, Plaintiff submitted additional
evidence to the Appeals Council. Tr. 2. The Appeals Council
accepted the evidence and made it part of the record. Tr. 2,
5, 711-30. Nevertheless, the Appeals Council found that it
“[did] not provide a basis for changing the [ALJ]'s
decision” and denied Plaintiff's request for review