United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for a Rehearing with Supporting
Memorandum” (“Motion”), filed on September
6, 2016. ECF No. 18. The Commissioner responded on December
2, 2016. ECF No. 23. Plaintiff replied on December 21, 2016.
ECF No. 24. Having meticulously reviewed the entire record
and the parties' briefs, the Court
RECOMMENDS that Plaintiff's Motion be
was born on November 15, 1958, and graduated high school in
1976. Administrative R. (“AR”) 229, 234. Upon
graduation, Plaintiff enlisted in the U.S. Army, where she
completed basic and advanced individual training in 1977.
Pl.'s Mot. 3. Plaintiff was honorably discharged in 1979.
1979 to 2006, Plaintiff maintained semi-continuous
employment. AR 219-26. For example, between 1998 and 2000,
she worked two years at Bigelow Components Corporation in New
Jersey as a supervisory quality control inspector. AR
41-43. Plaintiff then moved to California, where
she resumed employment as a quality control inspector with
Mosey's Production Machinists, Inc., from 2000 to 2002.
Pl.'s Mot. 4. From there, Plaintiff worked approximately
six months in customer service at a dry cleaning business and
several months at a casino as a maintenance worker before
returning to factory work in 2002 and 2003. Id.
Plaintiff was last employed as a home health provider from
2005 to 2006. Id.
filed an application for Disability Insurance Benefits and
Supplemental Security Income on August 6, 2012. Id.
at 3. Plaintiff claimed disability beginning on February 1,
2006, based on emphysema, esophageal spasms, osteoporosis,
and high blood pressure. AR 228. The Social Security
Administration (“SSA”) denied Plaintiff's
application initially on March 19, 2013, and upon
reconsideration on September 13, 2013. AR 75, 76. At her
request, Plaintiff received a de novo hearing before
Administrative Law Judge (“ALJ”) Eric Weiss on
May 13, 2015, at which Plaintiff, her attorney, and a
vocational expert (“VE”) appeared. AR 37-74. On
June 5, 2015, the ALJ issued his decision, finding that
Plaintiff was not disabled within the meaning of the Social
Security Act (“the Act”). AR 18-29. Plaintiff
appealed to the SSA Appeals Council, but it declined review
on December 4, 2015. AR 1-4. As a consequence, the ALJ's
decision became the final decision of the Commissioner. 20
C.F.R. § 422.210(a) (2016).
timely filed her appeal with the U.S. District Court on
February 3, 2016. ECF No. 1.
advances two grounds for relief. First, she argues that the
ALJ erred by finding that her past work as a customer service
representative constituted substantial gainful activity.
Pl.'s Mot. 10-12. In addition, Plaintiff contends that
the ALJ failed to resolve a conflict between the VE's
testimony and the Dictionary of Occupational Titles
(“DOT”) concerning the environmental limitations
that would attend her return to employment as an inspector.
Id. at 12-14.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. The Court's review of that final
agency decision is both factual and legal. See 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)) (“The standard
of review in a social security appeal is whether the correct
legal standards were applied and whether the decision is
supported by substantial evidence.”).
factual findings at the administrative level are conclusive
“if supported by substantial evidence.” 42 U.S.C.
§ 405(g) (2012). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” 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). 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;
Hamlin, 365 F.3d at 1214. Substantial evidence does
not, however, require a preponderance of the evidence.
See 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)). 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
the review of the ALJ's legal decisions, the Court
reviews “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
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. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2016). At the first three steps, the ALJ
considers the claimant's current work activity, the
medical severity of the claimant's impairments, and the
requirements of the Listing of Impairments. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt.
404, Subpt. P, App'x 1. If a claimant's impairments
are not equal to one of those in the Listing of Impairments,
then the ALJ proceeds to the first of three phases of step
four and determines the claimant's residual functional
capacity (“RFC”). See Winfrey, 92 F.3d
at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In
phase two, the ALJ determines the physical and mental demands
of the claimant's past relevant work, and in the third
phase, compares the claimant's RFC with the functional
requirements of her past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from
performing her past work, then she is not disabled. 20 C.F.R.
§§ 404.1520(f), 416.920(f). The claimant bears the
burden of proof on the question of disability for the first
four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482
U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d
1456, 1460 (10th Cir. 1987). If the claimant cannot return to
her past work, then the Commissioner bears the burden, at the
fifth step, of showing that the claimant is capable of
performing other jobs existing in significant numbers in the
national economy. See Thomas, 540 U.S. at 24-25;
see also Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (discussing the five-step sequential
evaluation process in detail).
THE ALJ'S DECISION
issued his decision on June 5, 2015. AR 29. At step one, he
found that Plaintiff had not engaged in substantial gainful
activity since the alleged disability onset date of February
1, 2006. AR 20. Because Plaintiff had not engaged in
substantial gainful activity for at least twelve months, the
ALJ proceeded to step two. AR 20-23. There, he found that
Plaintiff suffered from the following severe impairments: (1)
chronic obstructive pulmonary disease (“COPD”);
(2) moderate degenerative disc disease at ¶ 4-L5 with
moderate lumbar facet arthropathy; and (3) mild degenerative
osteoarthrosis of the hips. AR 20. Along with these findings,
the ALJ found the following impairments to be non-severe (and
provided substantiation for doing so): (1) hypertension; (2)