United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiff Kenneth Gerald
Therrell's Motion to Reverse and Remand Administrative
Agency Decision, filed February 18, 2016, and fully briefed
on June 28, 2016. Docs. 18, 24, 25. The parties have
consented to my entering a final judgment in this case. Doc.
12. Having meticulously reviewed the entire record and being
fully advised in the premises, I find that the Administrative
Law Judge (“ALJ”) applied the correct legal
standards when formulating Mr. Therrell's residual
functional capacity and presented a proper hypothetical to
the vocational expert (“VE”). I further find that
the ALJ properly relied on the VE's testimony in
determining that there were a significant number of jobs
available in the national economy that Mr. Therrell could
perform. I therefore DENY Mr. Therrell's motion and
AFFIRM the decision of the Commissioner.
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; 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); Grogan, 399 F.3d at 1261. 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 then 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. Id.
Background and Procedural History
Therrell lives with his wife,  has a ninth-grade education, and
has a history of working as a service technician for heating
and cooling systems and in the construction trades.
41, 42-46, 67, 171-73. Mr. Therrell was 55 years old when he
applied for disability insurance benefits in July of 2012. AR
142. He originally alleged disability as of February 1, 2008,
due to a heart condition. AR 13, 68, 142. The Commissioner
denied his claim initially and upon reconsideration. AR
85-88, 91-96. Mr. Therrell requested a hearing before an ALJ,
and ALJ John W. Rolph held a hearing on June 5, 2014. AR
29-66, 97-98. At the hearing, Mr. Therrell amended his
alleged onset date to January 1, 2011. AR 35, 45.
issued his unfavorable decision on September 8, 2014. AR
10-28. The ALJ found that Mr. Therrell met the insured status
requirement of the Social Security Act through March 31,
2012. AR 15. At step one, the ALJ found that Mr. Therrell had
not engaged in substantial, gainful activity between his
alleged onset date of January 1, 2011 and his date last
insured. Id. Because Mr. Therrell had not engaged in
substantial gainful activity for at least 12 months, the ALJ
proceeded to step two. At step two, the ALJ found that Mr.
Therrell suffered from the severe impairments of
“minimal coronary artery disease with noncardiac chest
pain; syncopal episodes; and degenerative disc disease of the
cervical spine with disc protrusion of the C5-C6 vertebrae .
. . .” Id. The ALJ found that Mr. Therrell had
several nonsevere impairments: a gunshot wound to his left
arm, injuries sustained by falling due to syncope, a cyst in
his sinus, hypertension, hypokalemia, hypercholesterolemia,
lung hypoinflation with bibasilar atelectasis, right-sided
weakness in his arm and leg, anxiety with panic attacks,
alcohol abuse, tobacco abuse, and post-traumatic stress
disorder. AR 16-17. At step three, the ALJ found that none of
Mr. Therrell's impairments, alone or in combination, met
or medically equaled a Listing. AR 18.
none of the impairments met a Listing, the ALJ moved to step
four. At step four, the ALJ found that:
. . . the claimant had the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) except
that he may never climb ladders, ropes, and scaffolds, and he
must avoid all exposure to hazards such as dangerous
machinery and unsecured heights. He is able to perform work
tasks that do not involve operation of a motor vehicle.
Id. The ALJ found that Mr. Therrell was unable to
perform any of his past relevant work as a service technician
in heating and cooling, a tank inspector, a construction
worker, or a maintenance worker. AR 22.
five, relying on the testimony of the VE, the ALJ concluded
that, through the date he was last insured, “there were
jobs that existed in significant numbers in the national
economy that the claimant could have performed, ”
id., and that Mr. Therrell was “capable of
making a successful adjustment to other work that exists in
significant numbers in the national economy.” AR 24.
Accordingly, the ALJ found that Mr. Therrell was not
24, 2015, the Appeals Council denied Mr. Therrell's
request for review, making the ALJ's decision the final
decision of the Commissioner and prompting this appeal. AR
1-4. Mr. Therrell ...