United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's Motion to
Reverse and Remand for Rehearing with Supporting Memorandum
(Doc. 23), filed January 11, 2017. Pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure
73(b), the parties have consented to me serving as the
presiding judge and entering final judgment. Doc. 9.
Having reviewed the parties' submissions, the relevant
law, and the relevant portions of the Administrative Record,
the Court will deny the Motion.
who elected to appear at her administrative hearing without
counsel, contends that the Administrative Law Judge
(“ALJ”) who held that hearing failed to fully
inquire into the effects of her headaches and obesity,
resulting in his failure to consider them in concluding that
she is not disabled. After careful review of the record,
however, the Court is confident that the ALJ considered these
impairments. Even assuming he did not, the Court finds any
such error to be harmless, as Plaintiff has failed to
demonstrate any further limiting effects these impairments
may impose beyond those recognized by the ALJ.
filed applications with the Social Security Administration
for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act on
August 3 and 31, 2010. AR at 171-78. In these
applications, Plaintiff alleged two different disability
onset dates: August 1, 2008, and August 3, 2010. AR
at 171, 175. Regardless, Plaintiff stopped working full-time
on August 3, 2010, due to osteoarthritis in her knees,
migraines, obesity, high blood pressure, and thyroid
problems. AR at 205. Prior to claiming disability,
Plaintiff worked as a receptionist at a doctor's office,
janitor at a school, and cashier at a gas station.
AR at 72-73, 206. Plaintiff testified that she can
no longer work as a cashier because of the standing and
lifting requirements of that job. AR at 72-73.
However, Plaintiff continues to work part-time as an
assistant librarian. AR at 66.
agency denied Plaintiff's claims initially and upon
reconsideration, and she requested a de novo hearing
before an administrative law judge. AR at 87-116.
ALJ Barry O'Melinn held an evidentiary hearing on March
12, 2014, at which Plaintiff appeared via video
teleconference. AR at 61. Although ALJ O'Melinn
advised her of her right to be represented by counsel,
Plaintiff elected to proceed on her own. AR at
the ALJ issued an unfavorable decision on August 29, 2014.
AR at 41-53. Plaintiff, now represented by counsel,
submitted a Request for Review of the ALJ's Decision to
the Appeals Council, which the Council declined on April 22,
2016. AR at 1-7, 36-37. As such, the ALJ's
decision became the final decision of the Commissioner.
Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
2003). This Court now has jurisdiction to review the decision
pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. §
claimant seeking disability benefits 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); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505(a), 416.905(a). The Commissioner must
use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. §§
One of the sequential evaluation process, the ALJ found that
while Plaintiff continues to work part-time as an assistant
librarian, she has not engaged in substantial gainful
activity during the relevant time period. AR at 43.
At Step Two, he determined that Plaintiff has the severe
impairments of “bilateral knee disorder, morbid
obesity, hypertension, hypothyroidism, back/hip pain,
diabetes mellitus type 2, bipolar panic, and post-traumatic
stress disorder (‘PTSD').” AR at 43.
At Step Three, the ALJ concluded that Plaintiff's
impairments, individually and in combination, did not meet or
medically equal the regulatory “listings.”
AR at 43-44.
plaintiff does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. §§ 404.1520(e),
416.920(a)(4). RFC is a multidimensional description of the
work-related abilities a plaintiff retains in spite of her
medical impairments. 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). “RFC is not the least an
individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8P, 1996
WL 374184, at *1. In this case the ALJ determined that
Plaintiff retained the RFC to
perform sedentary work activity, as defined in 20 CFR
404.1567(a) and 416.967(a), except that she could balance,
stoop, kneel, crouch, crawl, and climb ramps/stairs only
occasionally. She would need to avoid concentrated exposure
to moving machinery, hazardous machinery, and unprotected
heights. She could understand, carry out, and remember
detailed but not complex instructions and make commensurate
work-related decisions, responding appropriately to
supervision, coworkers, and work situations, deal with
routine changes in work setting, maintain concentration,
persistence, and pace for up to and including two hours at a
time with normal breaks throughout the workday.
AR at 44-45. Employing this RFC at Step Four, the
ALJ determined that Plaintiff is able to return to her past
relevant work as a receptionist. AR at 53.
Accordingly, the ALJ did not proceed to Step Five, having
determined that Plaintiff was not disabled from her alleged
onset date through the date of his decision, and he denied
benefits. AR at 47.
Court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence and whether the correct legal standards
were applied.” Vigil v. Colvin, 805 F.3d 1199,
1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area
is grounds for remand. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012). “In order to
determine whether the [Commissioner's] decision is
supported by substantial evidence, [this Court] must
meticulously examine the record.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). However,
this Court “cannot reweigh the evidence or substitute
[its] judgment for the administrative law judge's.”
Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir.
2016) (citation omitted).
argues that the ALJ committed reversible error by failing to
fully explore the facts regarding her headaches, migraines
and obesity during the administrative hearing. Doc.
23 at 4 (citing Musgrave v. Sullivan, 966 F.2d
1371, 1374 (10th Cir. 1992)). Plaintiff quotes
Musgrave for the proposition that a social security
disability hearing is nonadversarial, imparting upon an ALJ
the duty to “inform himself about the facts relevant to
his decision and to learn the claimant's own version of
the facts.” Doc. 23 at 4. The
Musgrave Court went on to note that this duty
“to develop the record is heightened when a claimant is
unrepresented.” Musgrave, 966 F.2d at 1374.
permitting an unrepresented claimant to proceed before an ALJ
is not improper. To the contrary, an ALJ will still meet his
duty of inquiry in an unrepresented case if he asks
“sufficient questions to ascertain (1) the nature of a
claimant's alleged impairments, (2) what on-going
treatment and medication the claimant is receiving, and (3)
the impact of the alleged impairment on a claimant's
daily routine and activities.” Id. (citation
omitted). That said, “[t]he ALJ does not have to
exhaust every possible line of inquiry in an attempt to
pursue every potential line of questioning.”
Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir.
1997). “The standard is one of reasonable good
judgment. The duty to develop the record is limited to
‘fully and fairly develop[ing] the record as to
material issues.'” Id. (quoting Baca
v. Dep't of Health & Human Servs., 5 F.3d 476,
479-80 (10th Cir. 1993)).
posits that ALJ O'Melinn failed to adequately question
her about the impact of her migraines, headaches and obesity.
She contends that this alleged error led to the ALJ's
subsequent failure to discuss and consider her migraines and
headaches in his Step Two analysis and Step Four findings,
and to his failure “to discuss and assess the effect of
[Plaintiff's] obesity on the RFC.” See Doc.
23 at 7-9. For the reasons that ...