United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
Fashing, United States Magistrate Judge
MATTER comes before the Court on plaintiff Tracy Curry's
Motion to Reverse and Remand for Rehearing (Doc. 16), which
was fully briefed June 9, 2016 (Docs. 20, 21, 22). The
parties consented to my entering final judgment in this case.
Docs. 6, 8. Having meticulously reviewed the entire record
and being fully advised in the premises, I find that Ms.
Curry's motion to reverse and remand is not well-taken,
and it will be DENIED.
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). 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 and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A 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 the 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
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] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that 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. § 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, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
the claimant is not engaged in “substantial gainful
activity;” (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 (3) the
impairment(s) either meet or equal 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), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1260-61. If the claimant cannot show that his or
her impairment meets or equals a Listing but proves that he
or she is unable to perform his or her “past relevant
work, ” the burden of proof shifts to the Commissioner,
at step five, to show that the claimant is able to perform
other work in the national economy, considering the
claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Background and Procedural History
Curry was born on June 15, 1965, completed two years of
college, and has past relevant work as a bus driver, bus
cleaner, car rental clerk, inventory clerk, hardware clerk,
and assistant manager. AR 137, 162, 830. On November 21,
2006, Ms. Curry suffered a stroke. AR 686.
Curry filed an application for disability insurance benefits
(“DIB”) on October 23, 2009-alleging disability
since November 6, 2006 due to a stroke, memory problems, left
side paralysis, and high blood pressure. AR 137-40, 161. Ms.
Curry was insured for disability benefits through March 31,
2008. AR 141, 775. On January 23, 2009, while
her claim was pending, Ms. Curry suffered a second stroke. AR
323-33. The Social Security Administration
(“SSA”) denied her claims initially on January
19, 2010. AR 83-86. The SSA denied her claims on
reconsideration on July 7, 2010. AR 93-95. Ms. Curry
requested a hearing before an Administrative Law Judge
(“ALJ”). AR 96-97. On June 9, 2011, ALJ Barry
Robinson held a hearing. AR 28-79. ALJ Robinson issued an
unfavorable decision on February 22, 2012. AR 11-25. Ms.
Curry requested review by the Appeals Council, which denied
her request. AR 3-7, 9-10. Ms. Curry submitted additional
evidence, but, on September 21, 2012, the Appeals Council
declined to reopen or change the decision. AR 1-2. Ms. Curry
filed her first appeal to this Court on October 18, 2012.
See Curry v. Social Security Administration, No.
12-cv-1074 WJ/SMV, Doc. 1 (D.N.M. Oct. 18, 2012). On April
22, 2013, while her first appeal was pending, Ms. Curry filed
a subsequent application for supplemental security income
(“SSI”). AR 1021-29. On November 1, 2013, the
Honorable District Judge William P. Johnson remanded Ms.
Curry's case based on two errors: (1) the ALJ's
failure to conduct a proper function-by-function analysis and
(2) the ALJ's failure to explore the physical and mental
demands of Ms. Curry's past relevant work.
Curry, No. 12-cv-1074 WJ/SMV, Doc. 24 at 4-9.
remand, the Appeals Council remanded the case to an ALJ for a
new hearing. AR 883-86. ALJ Ann Farris held a hearing on
February 10, 2015. AR 802-39. At the hearing, Ms. Curry
agreed to consolidate her subsequent application for SSI with
her remanded case for DIB. AR 773, 804-05. ALJ Farris issued
her partially favorable decision on March 13, 2015. AR
found that Ms. Curry was insured for DIB through March 31,
2008. AR 777. At step one, the ALJ found that Ms. Curry had
not engaged in substantial, gainful activity since November
6, 2006. Id. Because Ms. Curry had not engaged in
substantial gainful activity for at least twelve months, the
ALJ proceeded to step two. AR 777-79. At step two, the ALJ
found that Ms. Curry suffered from the following severe
impairments since November 6, 2006: status post cerebral
vascular accident with residual left-hand weakness and
hypertension, AR 777-78, and the following severe impairments
since January 23, 2009: status post two cerebral vascular
accidents with no functional use of her left arm and left leg
weakness, hypertension, and a mental impairment
“variously diagnosed to include schizophrenia, anxiety,
PTSD, and a cognitive disorder, ” AR 778. At step
three, the ALJ found that none of Ms. Curry's
impairments, alone or in combination, met or medically
equaled a Listing. AR 779. Because the ALJ found that none of
the impairments met a Listing, the ALJ assessed Ms.
Curry's RFC-both before and after January 23, 2009. AR
779-82, 782-88. The ALJ found that, prior to
January 23, 2009, Ms. Curry had the RFC to “perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that she was limited to occasional handling and
fingering with her left upper extremity.” AR 779. The
ALJ found that, after January 23, 2009, Ms.
Curry had the RFC “to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except that she has no
functional use of her left arm. She also would be limited to
simple and unskilled work.” AR 782.
four, the ALJ concluded that Ms. Curry was unable to perform
any of her past relevant work. AR 789. At step five, relying
on the testimony of a vocational expert (“VE”),
the ALJ found that, prior to January 23, 2009, Ms. Curry was
not disabled, concluding that she still could perform jobs
that exist in significant numbers in the national economy
such as school bus monitor, bakery worker, and counter clerk.
AR 789-90. She further found that, after January 23, 2009,
Ms. Curry was disabled, as there were no jobs that exist in
significant numbers in the national economy that she could
perform. AR 790-91. Because this Court previously remanded
Ms. Curry's case, Ms. Curry was not required to seek
Appeals Council review again, and the ALJ's decision
stands as the final decision of the Commissioner.
See 20 C.F.R. § 404.984(a). Ms. Curry timely
appealed to this Court on July 10, 2015. Doc. 1.
Ms. Curry's Claims
Curry raises several arguments for reversing and remanding
this case: (1) the ALJ failed to follow and apply SSR 83-20;
(2) the ALJ failed to do a function-by-function assessment as
required by SSR 96-8p; (3) the ALJ's step five findings
are not supported by substantial evidence; and (4) the ALJ
committed legal error at step five by applying the
“Grids.” Doc. 16 at 2. For the reasons discussed
below, none of these claims merits remand.
The ALJ did not err by failing to follow and apply SSR
83-20; the ALJ was not required to consult a medical
Curry argues that the ALJ erred by not following SSR 83-20 in
determining the onset date of her “post 2006 cerebral
vascular accident with residuals and late effects,
schizophrenia, and cognitive disorder, which are impairments
of non-traumatic origin.” Doc. 16 at 11-12. She says
that she has a “slowly progressive impairment”
where the “onset date must be inferred”- thereby
requiring the ALJ to call on the services of a medical
advisor. Id. at 12. I disagree.
must determine whether a claimant is disabled, as well as an
onset date of disability. SSR 83-20, 1983 WL 31249, at *1.
SSR 83-20 establishes guidelines for determining the onset of
disability dates in DIB and SSI cases, and it
sets forth an analytical framework for assessing the date of
onset for a disability of traumatic or non-traumatic origin.
It provides that a disability is of “traumatic origin,
” where after the date of injury, “the individual
is thereafter expected to die as a result or expected to be
unable to engage in substantial gainful activity (SGA) (or
gainful activity) for a continuous period of at least 12
months.” SSR 83-20, at 2. Where a disability is of
traumatic origin, the date of onset is the date of the
traumatic injury. Id.
Additionally, SSR 83-20 provides a framework for examining
injuries that are not considered of “traumatic
origin” under the regulation. SSR 83-20 states that
“[i]n disabilities of nontraumatic origin, the
determination of onset involves consideration of the
applicant's allegations, work history, if any, and the
medical and other evidence concerning impairment
severity.” Id. The date alleged by the
claimant is the starting point for determining disability
onset, and the date the claimant stopped working is also of
significance in selecting the onset date. Id.
Medical evidence, however, is the “primary
element” for the onset determination, as the onset date
“can never be inconsistent with the medical evidence of
record.” Id. at 2-3.
SSR 83-20 also provides that, when medical evidence does not
establish the precise onset date, the ALJ may have to
“infer the onset date from the medical and other
evidence that describe the history and symptomatology of the
disease process.” Id. at 2. The regulation
provides two examples of situations where it may be necessary
to infer an onset Dated: (1) in the case of a slowly
progressing impairment, “when, for example, the alleged
onset and the date last worked are far in the past and
adequate medical records are not available, ” and (2)
when “onset of a disabling impairment(s) occurred some
time prior to the date of the first recorded medical
examination.” Id. at 3. “At the hearing,
the [ALJ] should call on the services of a medical advisor
when onset must be inferred.” Id.
Blea v. Barnhart, 466 F.3d 903, 909-10 (10th Cir.
medical advisor need be called only if the medical evidence
of onset is ambiguous.” Reid v. Chater, 71
F.3d 372, 374 (10th Cir. 1995) (internal citation and
quotation omitted). If a disability is of traumatic
origin, the onset date will be self-evident, and there is no
need for the ALJ to consult a medical advisor. Blea,
466 F.3d at 910. In addition,
whether a medical advisor is required under SSR 83-20 does
not turn on whether the ALJ could reasonably have determined
that [the claimant] was not disabled before [her last insured
date]. Rather, when there is no contemporaneous medical
documentation, we ask whether the evidence is ambiguous
regarding the possibility that the onset of her disability
occurred before the expiration of her insured status. If the
medical evidence is ambiguous and a retroactive inference is
necessary, SSR 83-20 requires the ALJ to call upon the
services of a medical advisor to insure that the
determination of onset is based upon a “legitimate
Id. at 911 (quoting Grebenick v. Chater,
121 F.3d 1193, 1200-01 (8th Cir. 1997)).
case, the ALJ was not required to consult a medical advisor
because the onset date was not ambiguous. Ms. Curry's
2006 stroke is an injury of nontraumatic
origin. As such, in determining an onset date for
disability, the ALJ was required to consider “the
applicant's allegations, work history, if any, and the
medical and other evidence concerning impairment
severity.” Blea, 466 F.3d at 909. The ALJ
thoroughly discussed all of these factors in her step two and
RFC findings. See AR 777-82. Other than asserting
that the ALJ did not conduct an adequate function-by-function
analysis-an argument the Court does not find persuasive,
see discussion in section B, infra-Ms.
Curry does not challenge any of the ALJ's step two or RFC
findings. The ALJ thoroughly examined Ms. Curry's
limitations after her first stroke, and supported her RFC
finding that she could perform light work, with the
additional limitation to occasional handling and fingering,
with substantial evidence. See discussion in section
B, infra. Ms. Curry's unsupported allegations
that the onset date was ambiguous and that her 2006 stroke
was a slowly progressive impairment are without merit. The
Court finds no error in the ALJ's decision not to consult
a medical advisor about this impairment.
Curry's only support for her claim that the record is
ambiguous and that the ALJ was therefore required to consult
a medical advisor is that “there is . . . a question
about what triggered Ms. Curry's second stroke, ”
and that “[h]er severe problems did not develop
overnight.” Doc 16 at 14. The medical evidence Ms.
Curry offers, however, does not support this assertion.
See Id. Ms. Curry argues that the fact that Dr.
Craig Jensen, a doctor treating her after her January 23,
2009 stroke, found that she had “acute renal failure,
an acute cerebrovascular accident, anemia and profound
hyponatremia, ” and that “the etiologies of her
such severe decompensation [were] unclear” creates an
ambiguity in the medical record about whether she was
disabled by her 2006 stroke, and whether she was disabled
before March 31, 2008, her date last insured. Doc. 16 at 14.
Curry repeatedly characterizes her 2006 stroke as a
“cerebrovascular accident with residuals and late
effects.” E.g., Doc. 16 at 11. But she cites
no medical or other evidence to support her assertion that
she got progressively worse after her first stroke. As the
Commissioner argues, “[Ms. Curry] appears to suggest in
her brief that her stroke residuals were ‘slowly
progressive, ' but the record simply fails to support
such a suggestion.” Doc. 20 at 5. Instead of showing a
“slowly progressing impairment, ” the record
evidence shows that Ms. Curry's symptoms gradually
improved after her first stroke. See AR 227
(2009 Progress Note Report stating, “Individual had a
previous CVA [“cerebrovascular accident”] ¶
2006 which involved slurred speech, dysarthria and some
weakness to her lower extremities. She gradually improved and
gained complete control of her functions following that
Curry also argues that “the medical evidence regarding
the onset of Ms. Curry's schizophrenia, and cognitive
disorder is ambiguous and there is a dearth of medical
information regarding its progress.” Doc. 16 at 12. The
Commissioner argues that Ms. Curry's mental
impairments/schizophrenia was not a slowly progressive
impairment which required the ALJ to infer a disability onset
date. Doc. 20 at 6. I agree with the Commissioner.
Curry admits that she did not receive psychological care
during the relevant time period (between November 2006, the
date of alleged onset, and March 31, 2008, the date last
insured). She argues, however, that, because there are
medical records from before and after this period, the ALJ
was required to consult a medical advisor to determine the
onset date of disability from these impairments. Doc. 16 at
12-14. In support of her argument, Ms. Curry states that she
has a history of delusions between 1997 and 2000.
Id. at 12-13. She also cites the mental health
treatment she received in 2010. Id. at 13.
thoroughly analyzed her reasons for concluding that Ms. Curry
did not have a severe mental impairment prior to January 23,
2009. See AR 778-79. The record shows that the ALJ
considered all of the medical records about Ms. Curry's
treatment for mental impairments. AR 778. The ALJ also
reviewed the paragraph B criteria for evaluating mental
disorders: activities of daily living, social functioning,
concentration/persistence/pace, and episodes of
decompensation. AR 778-79. The ALJ concluded that “the
record does not contain any treatment notes, diagnosis, or
complaints to establish any limitations due to these
conditions between November 2006 and March 2008.” AR
778. The ALJ acknowledged that Ms. Curry stated that she
could not afford care during this time, but she also found
that Ms. Curry did not “require any psychiatric
emergency care and was able to work above substantial gainful
levels after April 2000.” Id. The ALJ also
noted that Ms. Curry's mental health treatment was many
years after her alleged onset date, and that the treatment
notes “indicate on several occasions that the claimant
sought mental health treatment at her attorney's
request.” Id. The ALJ further noted that
“the lack of treatment between 2006 and March 2008
suggests that these conditions did not impair her ability to
work at that time.” Id. Ms. Curry does not
specifically challenge any of the ALJ's reasons for