United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Diane Marie
Farden's Motion to Reverse or Remand Administrative
Agency Decision, filed May 16, 2016, and fully briefed on
August 28, 2016. Docs. 23, 26, 27. The parties have consented
to my entering a final judgment in this case. Docs. 12, 29,
30. Having meticulously reviewed the entire record and being
fully advised in the premises, I find that the Administrative
Law Judge (“ALJ”) failed to apply the correct
legal standards when assessing Ms. Farden's credibility.
I therefore GRANT Ms. Farden's motion and remand this
case to the Commissioner for proceedings consistent with this
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. § 404.1505(a).
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
Farden was born on July 21, 1978. AR 32, 223. She has a seventh
grade education and a history of working as a baby sitter,
adult caregiver, cashier, waitress, and as the owner of a
landscape business. AR 32, 241, 261, 880, 902-03. At the time
of the hearing before ALJ Hertzig (the ALJ whose decision is
at issue in this case), Ms. Farden was married and living
with her husband and youngest daughter in Clovis, New Mexico.
Farden initially applied for Supplemental Security Income
benefits on March 17, 2008, alleging disability since March
13, 2007. AR 223-29. Ms. Farden alleged she was disabled due
to arthritis in her spine, headaches, depression, insomnia,
bulging discs in her back, pain in both her legs, shooting
pain from the bottom of her spine to the top of her head,
degenerative disc disease, and a ventral hernia. AR 240.
time of her March 2008 application, Ms. Farden lived in
Dallas, Texas. AR 224. While her application was pending, Ms.
Farden moved to Clovis, New Mexico, and from Clovis, she
moved to California. AR 77-79. In June of 2014, Ms. Farden
moved back to Clovis, New Mexico. AR 1174.
Farden's March 2008 application for benefits was denied
initially and upon reconsideration, and Ms. Farden requested
a hearing before an ALJ. AR 98-99, 109-11. On February 17,
2010, ALJ Lowell Fortune conducted a hearing, but because he
did not have all of the relevant medical evidence, he
continued the hearing. AR 53-88. ALJ Fortune held a
supplemental hearing on June 4, 2010. AR 29-52. ALJ Fortune
issued his unfavorable decision on July 21, 2010. AR 9-28.
The Appeals Council denied Ms. Farden's request for
review, and on March 29, 2012, Ms. Farden appealed the
Commissioner's decision to the United States District
Court for the Central District of California. AR 1007-11,
1013-15. The district court in California reversed and
remanded the Commissioner's decision for further
proceedings on March 25, 2013. AR 1020-43.
ALJ Fortune's decision was under review in California,
Ms. Farden filed a second application for supplemental
security income on October 7, 2011, continuing to allege
disability as of March 13, 2007. AR 921. Her second
application was denied initially and upon reconsideration,
and ALJ Jennifer Simmons held a hearing on May 21, 2012.
Id. ALJ Simmons issued an unfavorable decision on
July 17, 2012. AR 918-932, 1081-92. The Appeals Council
consolidated Ms. Farden's appeal of ALJ Simmons'
decision with ALJ Fortune's remanded decision and issued
an order remanding the consolidated case to an administrative
law judge. AR 913-17, 1048-52.
Michael Hertzig held a hearing on March 20, 2015. AR 872-912.
ALJ Hertzig issued his unfavorable decision on May 15, 2015.
AR 833-69. ALJ Hertzig's decision is the one at issue in
this appeal. See Doc. 2. At step one, ALJ Hertzig
found that Ms. Farden had not engaged in substantial, gainful
activity since her alleged onset date of March 17, 2008. AR
839. Because Ms. Farden had not engaged in
substantial gainful activity for at least 12 months, ALJ
Hertzig proceeded to step two. At step two, ALJ Hertzig found
that Ms. Farden suffered from the severe impairments of
“morbid obesity, lumbar spine arthritis, and mixed
connective tissue disease.” Id. ALJ Hertzig
found that Ms. Farden had several nonsevere impairments: knee
pain, restless leg syndrome, Sjögren's syndrome,
systemic lupus erythematosus, rheumatoid arthritis, chronic
obstructive pulmonary disease, hiatal hernia, gastric reflux,
depression, anxiety, pelvic pain, hypothyroid disease, hiatal
hernia, gastroesophageal reflux disease, diverticulosis, and
chronic obstructive pulmonary disease and/or asthma. AR
840-50. At step three, ALJ Hertzig found that none of Ms.
Farden's impairments-alone or in combination-met or
medically equaled a Listing. AR 850-52.
none of the impairments met a Listing, ALJ Hertzig moved to
step four. At step four, ALJ Hertzig found that:
[C]laimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 416.967(a) except can
stand 30 minutes at one time, and then must alternate
position in place for a few minutes; can sit 60 minutes at
one time, and then can change position for a few minutes in
place; never climbing ladders, ropes, or scaffolds;
occasional climbing ramps and stairs; occasional balancing,
stooping, kneeling, crouching, or crawling; avoid all
exposure to unprotected heights; can frequently be exposed to
temperature extremes; can occasionally be exposed to
vibration and uneven surfaces.
AR 852. ALJ Hertzig determined that Ms. Farden was capable of
performing her past relevant work as an accounts
receivable/payable clerk and payroll clerk and, therefore,
was not disabled. AR 861-62.
Farden requested-and the Appeals Council granted-an extension
of time for filing exceptions to ALJ Hertzig's decision
until August 13, 2015. AR 827-28, 832. Ms. Farden did not
file exceptions, and the Appeals Council did not review the
decision on its own, making ALJ Hertzig's decision the
final decision of the Commissioner and prompting this ...