United States District Court, D. New Mexico
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. 17) filed October 26, 2016
(hereinafter “motion”). On January 25, 2017,
Defendant filed a response (Doc. 21) to
Plaintiff's motion and, on February 21, 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. 6 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. 12]. For the reasons set forth below, the
Court FINDS that Plaintiff's motion should be GRANTED, in
part, and DENIED, in part, and the Commissioner's
decision in this case should be REMANDED for further
proceedings in accordance with this decision.
12, 2012, Plaintiff protectively filed an application for
Supplemental Security Income (hereinafter “SSI”).
[Doc. 12-9 at 16-17]. Plaintiff's application
was denied at the initial level on October 26, 2012 (Doc.
12-6 at 2), and at the reconsideration level on April 1,
2013 (id. at 9). On April 19, 2013, Plaintiff
requested a hearing to review the denial of his application.
Id. at 14. Administrative Law Judge Barry
O'Melinn (hereinafter “ALJ”) conducted a
hearing on April 23, 2014. [Doc. 12-4 at 2-30].
Plaintiff appeared, unrepresented, and testified
(id. at 8-16), as did his mother, Rosella Monte Baca
(id. at 16-19), and his father, Franklin Baca
(id. at 19-22). Vocational Expert Nicole King
(hereinafter “VE”) also appeared and testified
(id. at 26-29).
August 28, 2014, the ALJ issued a decision (Doc.
12-3 at 21-28) finding that, under the relevant sections
of the Social Security Act, Plaintiff was not disabled from
the date his application was filed (id. at 21).
Plaintiff requested that the Appeals Council review the
ALJ's decision. Id. at 15. On January 27, 2016,
the Appeals Council entered an order indicating it had
received additional evidence from Plaintiff, which it made a
part of the record. Id. at 6. On January 27, 2016,
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.
The Appeals Council indicated that it had
“considered” the additional evidence, and found
that “this information does not provide a basis for
changing the [ALJ]'s decision.” Id. at 3.
This decision was the final decision of the Commissioner. On
March 25, 2016, Plaintiff filed his complaint in this case.
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 Process
purposes of SSI, 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. § 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 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 April 25, 1994 and was 18 years old on July 12,
2012, the date he filed his disability application. [Doc.
12-9 at 16]. Thus, for the purposes of his disability
claim, Plaintiff is considered to be a “younger
person.” In his application, Plaintiff claimed to
be disabled due to having broken both legs at the ankle,
broken his kneecap, and asthma. Id. at 20. Plaintiff
completed high school with a diploma (Doc. 12-4 at
11), and reads, writes, and understands English (Doc.
12-9 at 19). At the hearing, Plaintiff testified that he
weighed 420 pounds (Doc. 12-4 at 13), and that he
lives with his parents (id. at 8-9).
medical records include: knee MRI reports dated July 11, 2012
(Doc. 12-12 at 6-8) and March 18, 2013 (Doc.
12-19 at 13-14) by Carlos Mena, M.D.; operative report
dated September 10, 2012 by Douglas C. Allen, M.D. (Doc.
12-12 at 9-11); treatment records for the period from
July 19, 2011 to January 10, 2013 (id. at 12 through
Doc. 12-13 at 3), and dated May 28, 2013 (Doc.
12-19 at 16-17), from New Mexico Orthopaedics; emergency
and physical therapy records for the period from July 14,
2011 to January 31, 2013 (Doc. 12-14 at 6 through
Doc. 12-18 at 39), and treatment records for the
period from February 27, 2014 to March 17, 2014 (Doc.
12-19 at 18-33) from Alamo Navajo Health Center.
Additional records, consisting of treatment records for the
period from February 27, 2014 to September 25, 2014
(id. at 34-41) from Alamo Navajo Health Center, and
medical assessments dated September 26, 2014 (id. at
44-45) from Wren T. Kennedy, CRNP, were submitted to the
Appeals Council sometime between September 26, 2014, when the
last such document was created, and January 27, 2016, when
the documents were made part of the record (see Doc.
12-3 at 6). Where relevant, Plaintiff's medical
records are discussed in more detail below.
one of the five-step evaluation process, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since the filing of his disability application on July 12,
2012. [Doc. 12-3 at 23]. At step two, the ALJ found
that Plaintiff has the following severe impairments:
“obesity, knee disorder, asthma, hypertension, and
chronic edema.” 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 416.920(d), 416.925, and
416.926).” Id. In reaching his conclusion, the
ALJ considered Listings 1.02 (Major Dysfunction of Joints),
3.03 (Asthma), and 4.00(H)(1) (Evaluating Hypertension), as
well as Soc. Sec. Rep. 02-1p (Obesity). Id. Before
step four, the ALJ found that Plaintiff had the RFC:
to perform sedentary work as defined in 20 CFR 416.967(a)
except occasionally climb ramps and stairs, never climb
ladders, ropes and scaffolds, occasionally balance with a
hand held assistive device, occasionally stoop, kneel,
crouch, and crawl, should avoid concentrated exposure to
extreme cold, extreme heat, pulmonary irritants such as
fumes, odors, dusts, gases, poorly ventilated areas, moving
hazardous machinery, and unprotected heights, and can
understand remember and carry out simple instructions and
make commensurate work related decisions, respond
appropriately to supervision, coworkers and work situations,
deal with routine changes in a work setting, maintain
concentration, persistence and pace for up to and including
two hours at a time with normal breaks throughout the work
Id. at 24. In support of this RFC assessment, the
ALJ stated that “[Plaintiff] and his witnesses were
generally credible. However, when taken in combination with
the objective medical evidence, the record supports the
conclusions [sic] that [he] can work within I [sic] the
limits I have fashioned herein.” Id. at 25.
four, the ALJ found that Plaintiff had no past relevant work.
Id. at 26. At step five, the ALJ found that jobs
exist in significant numbers in the national economy that
Plaintiff can perform. Id. at 27. In support of this
finding, the ALJ relied on the VE's testimony that an
individual of Plaintiff's age, with the same education,
work experience, and RFC, could perform representative jobs
such as document preparer (DOT 249.587-018), with 2, 500, 000
jobs nationally; final assembler (DOT 713.687-018), with 235,
000 jobs nationally; and table worker (DOT 739.687-182), with
430, 000 jobs nationally. Id. All three of these
representative jobs have a designated SVP rating of 2. The
ALJ concluded that Plaintiff was not disabled within the
meaning of the Social Security Act “since July 12,
2012, the date the application was filed.” Id.