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
Remand or Reverse [Doc. 23] and her Brief in Support [Doc.
24] (collectively, “Motion”), filed on July 29,
2016. The Commissioner responded on October 26, 2016. [Doc.
28]. Plaintiff replied on November 21, 2016. [Doc. 31]. The
parties have consented to the undersigned's entering
final judgment in this case. [Doc. 16]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that Plaintiff fails to meet her
burden as the movant to show that the Administrative Law
Judge's (“ALJ”) decision did not apply the
correct legal standards or was not supported by substantial
evidence. Accordingly, the Motion will be denied and the
Commissioner's final decision affirmed.
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 May 27, 2009.
Tr. 18. She alleged a disability-onset date of November 5,
2008. Id. Her claims were denied initially, on
reconsideration, and by an ALJ. Id. The Appeals
Council denied review, and Plaintiff appealed to this Court.
Presiding by consent, the Honorable Gregory B. Wormuth,
United States Magistrate Judge, granted Plaintiff's
motion to reverse the ALJ's decision and remand the
matter to the Commissioner. Tr. 529-51; Pacheco v.
Colvin, No. 13-cv-0848 GBW (D.N.M. Oct. 6, 2014)
Wormuth held that remand was warranted because the ALJ had
failed to apply the correct legal standards in evaluating the
reports from Plaintiff's treating psychiatrist, Margaret
Conolly, M.D. In particular, Dr. Connolly had assed
Plaintiff's global assessment of functioning
(“GAF”) scores at 45 and 35,  in 2008 and 2011,
respectively. Tr. 330, 440. The ALJ had not even mentioned
Dr. Conolly's treatment records at all, much less the GAF
scores. The Commissioner argued that there was no error in
the ALJ's failure to discuss the GAF scores. Judge
Wormuth disagreed. He found that the GAF scores were
significantly probative, and thus, it was reversible error
for the ALJ not to address them. Tr. 544-49.
Wormuth also found that the ALJ had failed to apply the
correct legal standard in evaluating the consultative opinion
of Martin Trujillo, M.D. Tr. 549-50; see Tr. 351-53
(Dr. Trujillo's report). Dr. Trujillo had concluded,
inter alia, that Plaintiff was “a poor
candidate for routine employment, although should do well
returning to school.” Tr. 353. The ALJ assigned limited
weight to Dr. Trujillo's opinion because, the ALJ
figured, “if she can return to school, she ought to be
able to return to sedentary work.” Tr. 25. Judge
Wormuth found error because, in rejecting Dr. Trujillo's
opinion, the ALJ had relied on her own speculation instead of
applying the six applicable regulatory factors. Tr. 549
(citing Social Security Ruling (“SSR”) 96-5p; 20
C.F.R. §§ 404.1527, 416.927). Judge Wormuth
remanded the case to the Commissioner for further proceedings
consistent with his opinion.
to Judge Wormuth's remand order, the Appeals Council
vacated the decision of the first ALJ. Tr. 554-55. Because
Plaintiff had filed subsequent claims for benefits, the
Appeals Council ordered a new ALJ to consolidate the new
claims with the ones remanded by Judge Wormuth. The new ALJ
was to create a new, single administrative record and issue a
new decision on the consolidated claims. Tr. 554; Tr. 476
(second ALJ's discussion of the procedural posture).
Deborah Rose held a second hearing on August 4, 2015. Tr.
473. Plaintiff appeared with her attorney. Tr. 447, 475. The
ALJ heard testimony from Plaintiff and an impartial
vocational expert (“VE”), Mary Diane Weber. Tr.
issued her unfavorable decision on October 28, 2015. Tr. 466.
She found that Plaintiff met the insured status requirements
for disability insurance benefits through December 31, 2013.
Tr. 450. At step one, she found that Plaintiff had not
engaged in substantial gainful activity since November 5,
2008, the onset date of her alleged disability. 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: “fibromyalgia,
degenerative joint disease, obesity, bipolar disorder, panic
disorder, and posttraumatic stress disorder[.]”
Id. The ALJ further found that Plaintiff's sleep
apnea and hypertension were not severe. Id. At step
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 450-53.
none of Plaintiff's impairments met or medically equaled
a Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
453-64. In doing so, the ALJ essentially rejected the
opinions of Plaintiff's treating physician, Gilbert
Aragon, D.O., and treating physician's assistant
(“PA”), Lisa Wentling, PA-C. Tr. 460-62
(ALJ's rejection of Dr. Aragon's opinion), 442 (Dr.
Aragon's opinion), 462-63 (ALJ's rejection of PA
Wentling's opinion), 841-44 (PA Wentling's opinion).
Instead, the ALJ accorded “significant weight” to
the opinions of non-examining physicians Janice Kando, M.D.,
and N.D. Nickerson, M.D. Tr. 463. Drs. Kando and Nickerson
had opined that Plaintiff could perform light work with some
additional postural and environmental limitations. See Id
. However, to accommodate Plaintiff's combination of
impairments (including fibromyalgia, degenerative join
disease, and obesity), the ALJ found that Plaintiff could
only perform a limited range of sedentary work. Tr. 463
(ALJ's discussion of Dr. Kando and Dr. Nickerson's
opinions), 453 (ALJ's RFC assessment).
further assessing Plaintiff's RFC, the ALJ considered the
GAF scores assessed by Plaintiff's treating psychiatrist,
Margaret Conolly, M.D. However, she found them to be
“of limited evidentiary value” because she (the
ALJ) believed GAF scores in general to be unreliable
indicators of a claimant's ability to do work. Tr.
463-64. Further, the ALJ found that Dr. Conolly's GAF
scores reflected “economic and environmental factors
that [were] not intrinsic components of [Plaintiff's]
mental functioning with respect to the ability to perform . .
. simple, unskilled work.” Tr. 464. The ALJ found that
the low GAF scores assessed by Dr. Conolly reflected
Plaintiff's “lack of employment, unresolved grief
issues, and homelessness . . . which are not necessarily
factors in the disability evaluation.” Tr. 463. The ALJ
gave significant weight to the non-examining opinion of
Elizabeth Chiang, M.D., who opined that Plaintiff should be
restricted to simple work. Id. (ALJ's evaluation
of Dr. Chiang's opinion); see Tr. 412 (relevant
portion of Dr. Chiang's opinion). However, to accommodate
Plaintiff's combination of physical and mental
impairments, including pain, the ALJ found that beyond a
restriction to simple work, Plaintiff could only have
superficial and incidental contact with coworkers and
supervisors, and no interaction with the public. Tr. 463.
[Plaintiff] has the [RFC] to perform a range of sedentary
work as defined in 20 [C.F.R. §§] 414.1547(a),
416.967(a). Specifically, [Plaintiff] can occasionally lift,
carry, push, and/or pull 10 pounds, stand and/or walk (with
normal breaks) for a total of about 2 hours in an 8-hour
workday, sit (with normal breaks) for a total of about 6
hours in an 8[-]hour workday. [Plaintiff] can occasionally
climb, balance, stoop, kneel, crouch, crawl, but never climb
ladders, ropes, or scaffolds or tolerate exposure to hazards.
She can understand and perform simple instructions, attend,
and concentrate for 2 hours with superficial and incidental
contact with coworkers and supervisors, but not public
Tr. 453. Based on this RFC and the testimony of the VE, the
ALJ found at step four that Plaintiff was unable to perform
any past relevant work. Tr. 464. 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. 465. Ultimately, the ALJ found that
Plaintiff had not been under a disability, as defined by the
Act, during the relevant time period, and she denied the
claims. Tr. 466. Plaintiff filed the instant action on
January 27, 2016, rather than requesting review by the
Appeals Council, as permitted by 20 C.F.R. §§
404.984(d), 416.1484(d). [Doc. 1].
makes numerous arguments attacking the second ALJ's
decision. The Court finds that these arguments are either
unpersuasive or inadequately developed for review. The