United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on plaintiff Vanessa Lynne
Montoya's Motion to Reverse and Remand (Doc. 18), which
was fully briefed September 7, 2016. Docs. 22, 23, 24. The
parties consented to my entering final judgment in this case.
Docs. 4, 11, 12. Having meticulously reviewed the entire
record and being fully advised in the premises, I find that
the Administrative Law Judge (“ALJ”) failed
either to incorporate, or to explain why he rejected,
limitations assessed by the two consulting psychologists who
examined Ms. Montoya. The ALJ also failed to adequately
develop the record to determine whether Ms. Montoya suffers
from an intellectual disability that meets or equals the
requirements of a Listing. I therefore GRANT Ms.
Montoya's motion and remand this case to the Commissioner
for proceedings consistent with this opinion.
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, 416.920; 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), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1260-61. 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 of proof 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.
Background and Procedural History
Montoya was born in 1986 and completed some middle school. AR
42-44, 71. She testified that she attempted to attend
a high school for six or seven months, but she dropped out
“because [she] didn't understand it.” AR 43.
She testified she was in special education the entire time
she was in school. AR 44-45. She was in special education
because she could not “do math, ” nor could she
“read or write.” AR 45. She believed that she may
have attained a second or third grade reading level, and
thought that her school should have records of that.
Montoya had worked in the past for several fast food
restaurants, but she was fired for various reasons.
See AR 46, 51-52, 247-48, 283. She was self-employed
as a house cleaner from about 2010 to 2012. See AR
60, 248-49, 283. Beginning in 2013, she worked part-time as a
care giver for her mother and step-father. See AR
Montoya filed applications for disability insurance benefits
and supplemental security income on January 10, 2013,
alleging disability since December 1, 2011, due to a torn
ligament and water in both knees, mental problems, a learning
disability, and stroke. AR 223- 29, 258. The Social Security
Administration (“SSA”) denied her claims
initially on July 26, 2013. AR 155-61. The SSA denied her
claims on reconsideration on September 24, 2013. AR 164-73.
Ms. Montoya requested a hearing before an ALJ. AR 174-76. On
April 15, 2015, ALJ Eric Weiss held a hearing. AR 27-68. ALJ
Weiss issued his unfavorable decision on June 5, 2015. AR
one, the ALJ found that Ms. Montoya had not engaged in
substantial, gainful activity since December 1, 2011. AR 13.
Because Ms. Montoya had not engaged in substantial gainful
activity for at least twelve months, the ALJ proceeded to
step two. Id. At step two, the ALJ found that Ms.
Montoya suffered from the following severe impairments: left
knee anterior cruciate ligament tear, medial meniscus tear,
lateral meniscus tear status post ACL reconstruction
hamstring autograft, medial meniscus repair, and partial
lateral menisectomy; learning disability in reading and
mathematics; depressive disorder; and paranoid personality
traits. AR 13-14. At step three, the ALJ found that none of
Ms. Montoya's impairments, alone or in combination, met
or medically equaled a Listing. AR 14-16. The ALJ
specifically considered and rejected the possibility that Ms.
Montoya's mental impairments, singly or in combination,
met or medically equaled the criteria of Listings 12.04 and
12.06, relating to depressive disorders and anxiety and
obsessive-compulsive disorders, respectively. Id.
The ALJ did not consider whether Ms.
mental impairments met or medically equaled the criteria of
Listing 12.05, relating to intellectual disorders, despite
Ms. Montoya's request that he do so. See AR
14-16, 30, 66, 329-30.
the ALJ found that none of the impairments met a Listing, the
ALJ assessed Ms. Montoya's RFC. AR 16-19. The ALJ found
the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant is able to lift 20 pounds occasionally
and lift or carry 10 pounds frequently, and push or pull the
same. She may walk or stand for 6 hours per 8 hour day and
sit for 6 hours per 8 hour day with normal breaks. She may
occasionally climb ramps and stairs but never ladders, ropes
and scaffolds. She may occasionally balance, stoop, crouch,
kneel and crawl. She must avoid more than frequent exposure
to moving machinery and unprotected heights. She is able to
understand, carry out, and remember simple instructions and
make commensurate work related decisions. She is able to
maintain concentration, persistence and pace for 2 hours at a
time with normal breaks throughout the workday. She is
limited to occasional interaction with co-workers and
supervisors but no interaction with the public. In addition,
I have determined the claimant has the ability to perform no
more than the full range of light work with above-stated
limitations or extensions. Unless otherwise noted, the
claimant can lift, carry, push or pull no more than 20 pounds
at a time and frequently lift, carry, push or pull objects
weighing up to 10 pounds. “Frequent” means
occurring from one-third to two-thirds of an eight-hour
workday. The claimant can walk off-and-on for no more than
about six hours during an eight-hour workday, stand
off-and-on for no more than about six hours during an
eight-hour workday, and can stand or walk off-and-on for a
total of about six hours during an eight-hour workday. The
claimant can sit for approximately six hours total during an
eight-hour workday. The claimant may stoop occasionally,
which means stooping for very little up to one third of an
four, the ALJ concluded that Ms. Montoya was unable to
perform her past relevant work as a house cleaner and
“home attendant.” AR 20, 59-61. The ALJ found Ms.
Montoya not disabled at step five, concluding that she still
could perform jobs that exist in significant numbers in the
national economy, such as a “cleaner, ” a
“marker, ” and a “hand presser.” AR
Montoya requested review by the Appeals Council, which, on
December 3, 2015, denied the request. AR 1-6, 344-50. Ms.
Montoya timely ...