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 [Doc. 16] (“Motion”), filed on
July 25, 2016. The Commissioner responded on October 17,
2016. [Doc. 20]. Plaintiff replied on October 28, 2016. [Doc.
21]. The parties have consented to the undersigned's
entering final judgment in this case. [Doc. 10]. Having
meticulously reviewed the entire record and being fully
advised in the premises, the Court finds that the
Administrative Law Judge (“ALJ”) erred in
evaluating the opinion of consultative examiner Dr. Kenney.
Accordingly, the Motion will be granted, and the case will be
remanded for further proceedings. See 42 U.S.C.
§ 405(g) (sentence four).
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). 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).
“The 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
omitted). Courts must meticulously review the entire record
but may neither reweigh the evidence nor substitute their
judgment for that of the Commissioner. Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. 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.” Id. While a court
may not reweigh 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) (quoting
Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir.
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); 20 C.F.R.
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (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 (3) her impairment(s) either meet or equal one
of the Listingsof presumptively disabling impairments;
or (4) she is unable to perform her “past
relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv);
Grogan, 399 F.3d at 1261. If she cannot show that
her impairment meets or equals a Listing, but she proves that
she is unable to perform her “past relevant work,
” the burden of proof then shifts to the Commissioner,
at step five, 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 1261.
applied for a period of disability and disability insurance
benefits on October 20, 2011. Tr. 91. She alleged a
disability-onset date of October 22, 2010. Id. Her
claims were denied initially and on reconsideration.
Id. Plaintiff requested a hearing before an ALJ.
Id. ALJ Donna Montano held a hearing by
videoconference on March 5, 2014. Id. Plaintiff
appeared with her former attorney. The ALJ heard testimony
from Plaintiff and from an impartial vocational expert,
Evelyn R. Hartman. Tr. 91, 107-144.
issued her unfavorable decision on August 22, 2014. Tr.
91-102. She found that Plaintiff met the insured status
requirements through December 31, 2015. Tr. 93. At step one,
she found that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date. Id.
Because Plaintiff had not engaged in substantial gainful
activity for at least 12 months, the ALJ proceeded to step
two. Id. There, she found that Plaintiff suffered
from the following severe impairments: “obesity,
inflammatory arthritis rule out Rheumatoid Arthritis (RA),
psoriasis, abdominal hernia, right shoulder impingement with
a full range of motion[.]” Tr. 93-94. At step three,
the ALJ found that none of Plaintiff's impairments, alone
or in combination, met or medically equaled a Listing. Tr.
none of Plaintiff's impairments met or medically equaled
a Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
94-96. Initially, the ALJ found that “[Plaintiff] has
the [RFC] to perform the full range of light work as defined
in 20 [C.F.R. §] 404.1567(b).” Tr. 94.
Confusingly, though, later in the decision, the ALJ refers
three times to Plaintiff's RFC as a “reduced range
of light work.” Tr. 96. At step four, the ALJ found
that Plaintiff was able to perform all of her past relevant
work (as an employer interviewer, retail security guard, and
as a mental retardation aide). Tr. 96-97. However, as is
explicitly listed in the ALJ's decision, work as a mental
retardation aide is classified as requiring medium exertion.
Tr. 96. Of course, as Defendant concedes, medium exertion is
more than (and thus would be precluded by a restriction to)
either light work or a reduced range of light work. In any
event, the ALJ ultimately found that Plaintiff had not been
under a disability, as defined by the Act, during the
relevant time period, and she denied the claims. Id.
the ALJ denied the claims, Plaintiff submitted additional
evidence to the Appeals Council. See Tr. 2. Some of
the evidence pre-dated the ALJ's decision, and other
evidence post-dated it. The Appeals Council accepted the
pre-decision evidence and made it part of the record. Tr. 2,
741-61. The Appeals Council considered it but found that it
“[did] not provide a basis for changing the [ALJ]'s
decision.” Id. On the other hand, the evidence
that post-dated the ALJ's decision was not made part of
the record, and the Appeals Council did not consider it. Tr.
2, 8-68, 76-80, 83-87. The Appeals Council found that the
“new information [was] about a later time[, and
therefore did] not affect the [ALJ's ...