United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA United States Magistrate Judge.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 14) filed September 7, 2016, in
support of Plaintiff Salvador Flores's ("Plaintiff)
Complaint (Doc. 1) seeking review of the decision of
Defendant Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration, ("Defendant" or
"Commissioner") denying Plaintiffs claim for Title
II disability insurance benefits and for Title XVI
supplemental security income benefits. On December 13, 2016,
Plaintiff filed his Motion to Reverse and Remand for
Rehearing With Supporting Memorandum ("Motion").
(Doc. 20.) The Commissioner filed a Response in opposition on
February 13, 2017 (Doc. 22), and Plaintiff filed a Reply on
February 27, 2017. (Doc. 23.) The Court has jurisdiction to
review the Commissioner's final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed
the entire record and the applicable law and being fully
advised in the premises, the Court finds the Motion is well
taken and is GRANTED.
Background and Procedural Record
Salvador Flores (“Mr. Flores”) alleges that he
became disabled on December 30, 2010, at the age of forty-six
because of herniated cervical disc, right hand surgery, and
eczema. (Tr. 169, 171, 214.) Mr. Flores went to school in
Mexico through the sixth grade (Tr. 61), and worked as a
construction laborer. (248-259.)
January 24, 2012, Mr. Flores protectively filed an
application for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et seq., and
concurrently filed an application for Supplemental Security
Income (“SSI”) under Title XVI of the Act, 42
U.S.C. § 1381 et seq. (Tr. 169-70, 171-80, 210.) Mr.
Flores's applications were initially denied on July 25,
2012. (Tr. 69, 70, 71-83, 84-96, 116-19, 120-23.) They were
denied again at reconsideration on June 25, 2013. (Tr.
98-113, 114, 115.) On June 25, 2013, Mr. Flores requested a
hearing before an Administrative Law Judge
(“ALJ”). (Tr. 135-36.) The ALJ conducted a
hearing on May 29, 2014. (Tr. 40-68.) Mr. Flores appeared in
person at the hearing with attorney Michael Armstrong.
(Id.) The ALJ took testimony from Mr. Flores (Tr.
48-62), and an impartial vocational expert
(“VE”), Sandra Trost. (Tr. 63-67.)
September 5, 2014, the ALJ issued an unfavorable decision.
(Tr. 23-34.) In arriving at her decision, the ALJ determined
that Mr. Flores met the insured status requirements of the
Act through December 31, 2017,  and that Mr. Flores had not
engaged in substantial gainful activity since his alleged
disability onset date. (Tr. 25-26.) The ALJ found that Mr. Flores
suffered from severe impairments of status post fusion of C5
to C7 vertebrae, depression, borderline intellectual
functioning, degenerative joint disease of the right elbow,
and degenerative joint disease of the right knee. (Tr. 26.)
However, the ALJ found that these impairments, individually
or in combination, did not meet or medically equal one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
she found that Mr. Flores's impairments did not meet a
Listing, the ALJ then went on to assess Mr. Flores's
residual functional capacity (“RFC”). The ALJ
[a]fter careful consideration of the entire record, I find
that since December 30, 2010, the claimant has had the
residual functional capacity to perform light work as defined
in 20 CFR 404.1567(a) and 416.967(a) except that he can only
occasionally climb, balance, and stoop; he cannot kneel,
crouch, or crawl; he can frequently but not constantly handle
and reach; and he can make simple work related decisions with
few workplace changes.
(Tr. 27.) Based on the RFC and the testimony of the VE, the
ALJ concluded that Mr. Flores was not capable of performing
his past relevant work, but that considering Mr. Flores's
age, education, work experience, and RFC, there were jobs
that existed in significant numbers in the national economy
that he could perform, and he was therefore not disabled.
February 10, 2016, the Appeals Council issued its decision
denying Mr. Flores's request for review and upholding the
ALJ's final decision. (Tr. 1-3.) On April 11, 2016, Mr.
Flores timely filed a Complaint seeking judicial review of
the Commissioner's final decision. (Doc. 1.)
Standard of Review
Court will not disturb the Commissioner's denial of
disability benefits if the final decision is supported by
substantial evidence and the Commissioner applied the correct
legal standards to evaluate the evidence. 42 U.S.C. §
405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004); Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004). In
conducting its review, the Court meticulously examines 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. 2007). In other words, the Court does
not reexamine the issues de novo, and the Court
“may not displace the agency's choice between two
fairly conflicting views, ” even if it would have
“made a different choice had the matter been before it
de novo.” Oldham v. Astrue, 509 F.3d
1254, 1257-58 (10th Cir. 2007); see also Sisco
v. U.S. Dep't. of Health & Human Servs., 10 F.3d
739, 741 (10th Cir. 1993).
decision is based on substantial evidence where it is
supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d
at 1118, or “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374
(10th Cir. 1992). Substantial evidence is
“more than a scintilla but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007).
Commissioner's decision must “provide this court
with a sufficient basis to determine that appropriate legal
principles have been followed.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir.
2005). Therefore, although an ALJ is not required to discuss
every piece of evidence, “the record must demonstrate
that the ALJ considered all of the evidence, ” and
“the [ALJ's] reasons for finding a claimant not
disabled” must be “articulated with sufficient
particularity.” Clifton v. Chater, 79 F.3d
1007, 1009-10 (10th Cir. 1996). The ALJ's
decision should discuss the evidence supporting his decision,
along with any “uncontroverted evidence he chooses not
to rely upon, as well as significantly probative evidence he
rejects.” Id.; Mays v. Colvin, 739
F.3d 569, 576 (10th Cir. 2014).
Applicable Law and Sequential Evaluation
claimant is disabled under the Social Security Act if that
individual has a severe medically determinable physical or
mental impairment or impairments which can be expected to
result in death or have lasted or can be expected to last for
a continuous period of twelve months and that render the
claimant unable to engage in any substantial gainful work in
the national economy. 42 U.S.C. § 423(d)(1)(A) &
(2)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486
(10thCir. 1993). In considering an application for
disability insurance benefits, the Commissioner uses a
five-step sequential evaluation process. 20 C.F.R.
§§ 404.1520 and 416.920; Bowen v. Yuckert,
482 U.S. 137, 140 (1987). The claimant bears the burden of
proof at the first four steps and must show that: (1) he is
not engaged in “substantial gainful activity”;
and (2) he 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) his impairment(s) meet or
equal one of the Listings of presumptively disabling impairments;
or (4) he is unable to perform his “past
relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). If the claimant can show that his impairment meets or
equals a listed impairment at step three, the claimant is
presumed disabled. However, if at step three the
claimant's impairment does not meet or equal a listed
impairment, before moving on to step four of the analysis,
the ALJ must consider all of the relevant medical and other
evidence, including all of the claimant's medically
determinable impairments whether “severe” or not,
and determine what is the “most [the claimant] can
still do” in a work setting despite his physical and
mental limitations. 20 C.F.R. §§
404.1545(a)(1)-(3). This is the claimant's residual
functional capacity (“RFC”) which the ALJ uses to
determine whether the claimant can perform his past relevant
work. 20 C.F.R. §§ 404.1545(a)(1) & (a)(3),
404.1520(a)(4), 404.1520(e), 416.945(a)(1) & (a)(3);
416.920(a)(4), 416.920(e). If the claimant establishes that
he cannot perform his past relevant work, the burden of proof
then shifts to the Commissioner at step five of the
sequential evaluation process, to show that the claimant is
able to perform other work in the national economy,
considering his RFC, age, education, and work experience.
Id.; Grogan, 399 F.3d at 1261.
the claimant bears the burden of proving disability in a
Social Security case, because such proceedings are
nonadversarial, “[t]he ALJ has a basic obligation in
every social security case to ensure that an adequate record
is developed during the disability hearing consistent with
the issues raised.” Henrie v. U.S. Dep't of
Health & Human Servs., 13 F.3d 359, 360-61
(10th Cir. 1993); Madrid v. Barnhart, 447
F.3d 788, 790 (10th Cir. 2006). “This is
true despite the presence of counsel.” Henrie,
13 F.3d at 361. “The duty is one of inquiry and factual
development, ” id., “to fully and fairly
develop the record as to material issues.” Hawkins
v. Chater, 113 F.3d 1162, 1167 (10th Cir.
1997). This may include, for example, an obligation to obtain
pertinent medical records or to order a consultative
examination. Madrid, 447 F.3d at 791-92. The duty is
triggered by “some objective evidence in the record
suggesting the existence of a condition which could have a
material impact on the disability decision requiring further
investigation.” Hawkins, 113 F.3d at 1167.
Flores asserts four arguments in support of his Motion as
follows: (1) the ALJ failed to give legitimate reasons for
rejecting the opinion of consultative examining physician
John R. Vigil, M.D.; (2) the ALJ offered no explanation for
failing to include all of the nonexertional limitations
assessed by State agency nonexamining consultants Scott
Walker, M.D., and Ralph Robinowitz, Ph.D.; (3) the ALJ failed
to include a function-by-function assessment of Mr.
Flores's inability to communicate in English; and (4) the
ALJ failed to resolve the conflict between the VE's
testimony and the Dictionary of Occupation Titles
(“DOT”) regarding Mr. Flores's limitation to
simple work-related decisions and his ability to do the level
two and level three reasoning jobs the VE identified. (Doc.
20 at 15-26.) The Court finds grounds for remand as discussed
The ALJ Improperly Rejected Some But Not All of the
Nonexamining State Agency Consultants' More Restrictive
Section I Findings Without Explanation
Flores argues that the ALJ erred by failing to include
certain of the nonexamining State agency consultants'
Section I moderate limitations, and that had she done so, she
would have assessed a more restrictive mental RFC. (Doc. 20
at 18-21.) Specifically, Mr. Flores argues that the ALJ
failed to incorporate moderate limitations based on his pain,
borderline intellectual functioning, and limited English
skills, all of which impact his ability to sustain
concentration and persistence. (Id.) The
Commissioner contends that the consultants' Section III
narrative assessments demonstrate that they considered their
Section I moderate limitation findings, and that the ALJ
reasonably relied on the consultants' Section III
narrative assessments in determining Mr. Flores's RFC.
(Doc. 23 at 11-12.)
25, 2012, nonexamining State agency medical consultant Scott
Walker, M.D., reviewed Mr. Flores's medical records and
prepared a Psychiatric Review Technique and a Mental
Residual Functional Capacity Assessment
(“MRFCA”). (Tr. 75-76, 80-81, 88-89, 93-94.) In
Section I of the MRFCA, Dr. Walker found that Mr. Flores had
no social interaction limitations. (Tr. 81, 94.) Dr. Walker
found that Mr. Flores was not significantly limited
in his ability to (1) remember locations and work-like
procedures; (2) understand and remember very short and simple
instructions; (3) carry out very short and simple
instructions; and (4) work in coordination with or in
proximity to others without being distracted by them. (Tr.
80, 93-94.) Based on Mr. Flores's pain, borderline
intellectual functioning, and/or limited English skills, Dr.
Walker found that Mr. Flores had moderate
limitations in his ability to (1) understand and
remember detailed instructions; (2) carry out detailed
instructions; (3) maintain attention and concentration for
extended periods; (4) perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances; (5) sustain an ordinary routine without special
supervision; (6) make simple work-related decisions; (7)
complete a normal workday and workweek without interruptions
from psychologically based symptoms and perform at a
consistent pace without an unreasonable number and length of
rest periods; (8) respond appropriately to changes in the
work setting; (9) be aware of normal hazards and take
appropriate precautions; (10) travel in unfamiliar places or
use public transportation; and (11) set realistic goals or
make plans independently of others. (Tr. 80-81, 93-94.) In
Section III of the MRFCA, Dr. Walker assessed that
[t]he allegations are credible. But [claimant] may have some
limitations related to pain and Borderline intellectual
functioning as well as limited English skills.
The claimant can understand, remember and carry out simple
instructions, make simple decisions, attend and concentrate
for two hours at a time, interact adequately with co-workers
and supervisors, and respond ...