United States District Court, D. New Mexico
GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for Rehearing, With Supporting
Memorandum” (“Motion”), filed on October
14, 2016. ECF No. 20. The Commissioner responded on December
19, 2016. ECF No. 21. Plaintiff replied on January 3, 2017.
ECF No. 23. Having meticulously reviewed the entire record
and the parties' pleadings, the Court finds that
Plaintiff's Motion should be GRANTED IN PART and DENIED
IN PART. The Court further ORDERS that the instant matter be
REVERSED and REMANDED for the limited reason set forth
was born on January 7, 1972. Administrative R.
(“AR”) 49. She did not graduate high school, but
she did receive her general equivalency degree
(“GED”). AR 38. From 1997 to 2010, Plaintiff held
semi-continuous employment as a cashier at a dairy facility,
change clerk at a casino, and as a home health care provider.
AR 33-37. Plaintiff last worked as a home health care
provider, but quit the position in 2010 because she
“ha[d] a hard time concentrating.” AR 33.
filed an application for Disability Insurance Benefits
(“DIB”) on July 27, 2012. AR 132. Plaintiff
claimed disability beginning on March 1, 2012, based on
diabetes, blurred vision, foot pain, high cholesterol,
incontinence, high blood sugar, memory loss, and
concentration loss. AR 49. The Social Security Administration
(“SSA”) denied Plaintiff's application
initially on January 14, 2013, and upon reconsideration on
May 3, 2013. AR 60, 75. At her request, Plaintiff received a
de novo hearing before ALJ Barry O'Melinn on
March 25, 2014, at which Plaintiff, her attorney, and a
vocational expert (“VE”) appeared. AR 28-47. On
August 29, 2014, the ALJ issued his decision, finding that
Plaintiff was not disabled within the meaning of the Social
Security Act (“the Act”). AR 11-22. Plaintiff
appealed to the SSA Appeals Council, but it declined review
on February 26, 2016. AR 1-3. 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 this Court on April 7, 2016. ECF
advances two grounds for relief. First, she argues that the
ALJ erred by improperly evaluating her urinary frequency as
non-severe at step two and by failing to account for the
impairment as part of her residual functional capacity
(“RFC”) determination at step four. Pl.'s
Mot. 7-10, ECF No. 10. Second, she contends the ALJ should be
reversed for failing to resolve a conflict between the
testimony of the VE and the Dictionary of Occupational Titles
at step four. Id. at 11-12.
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
examines “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) (2017). 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. 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 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 his past relevant work to
determine if the claimant is still capable of performing his
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 his past work, then he 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).
claimant cannot return to his past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is nonetheless 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
THE ALJ'S DECISION
issued his decision on August 29, 2014. AR 8. At step one, he
found that Plaintiff had not engaged in substantial gainful
activity since the alleged disability onset date of March 1,
2012. At step two, the ALJ found Plaintiff's diabetes
mellitus, obesity, and depression to be severe impairments.
AR 13. In contrast, the ALJ found Plaintiff's urinary
frequency to be non-severe. AR 13.
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. AR 14-16. The ALJ began with
Plaintiff's diabetes mellitus, which the regulations
directed the ALJ to assess under applicable listings for
other body systems. AR 14.
the ALJ considered “evidence of diabetic ketoacidosis,
chronic hyperglycemia, and hypoglycemia in determining
whether [Plaintiff's] diabetes me[t] or equal[ed] a
listing.” AR 14. In conclusion, he found that
“the evidence does not establish that [Plaintiff's]
diabetes mellitus meets or medically equals the criteria of
any Listing.” AR 14.
his examination of Plaintiff's physical impairments, the
ALJ considered whether Plaintiff's mental impairment met
the criteria of Listing 12.04 (affective disorders). AR 14.
He began by evaluating paragraph B of the Listing and
Plaintiff's activities of daily living
(“ADLs”). AR 15. There, the ALJ found Plaintiff
to have only a mild restriction. Among other things, the ALJ
observed that Plaintiff “cared for herself, [her]
three-year-old son, and her chickens and dog while her
husband worked full time as a plumber.” AR 15.
Additionally, he noted that Plaintiff “read her son
stories, gave him baths, and walked him.” AR 15 (citing
the ALJ found Plaintiff had only mild difficulties with
social functioning. The ALJ cited approvingly to the Third
Party Function Report completed by Plaintiff's husband,
wherein he reported that Plaintiff “visited with her
mother and sister once a week.” AR 15 (citing AR 167).
The ALJ found this to accord with Plaintiff's own
statement that she “shopped every day, drove, and
participated in a weekly play group with her son.” AR
15 (citing AR 176-77).
the ALJ found that Plaintiff had moderate difficulties with
concentration, persistence, and pace. In support, he cited to
Plaintiff's testimony that “she would lose items
such as her money card, her husband's money card[, ] and
her to do list.” AR 15. He also mentioned
Plaintiff's written statements, where she “noted
she could pay attention for a few minutes, did not finish
what she started, had to read written instructions over and
over again, and did not follow oral instructions very
well.” AR 15. Plaintiff also documented that “she
did not do well under stress and did not handle changes in
routine at all.” AR 15 (citing AR 178-79). These
reports corresponded with the findings of the non-examining
state consultants, who “opined [Plaintiff] had moderate
difficulties in concentration, persistence, and pace.”
AR 15 (citing AR 56, 72).
concluded his paragraph B discussion by finding that
Plaintiff “has experienced no episodes of
decompensation, which have been of extended duration.”
his paragraph B findings, the ALJ also considered whether
Plaintiff qualified under the paragraph C criteria. The ALJ
answered this inquiry in the negative, finding that
“the evidence fails to establish the presence of the
‘paragraph C' criteria.” AR 15. Specifically,
he recalled that Plaintiff “lived with her husband and
young son, cared for her chickens and dog, and her husband
worked full time.” AR 15. “Further, ” he
remarked, “the medical evidence showed minimal evidence
of mental health treatment.” AR 15.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 16-21. After “careful
consideration of the entire record, ” the ALJ
determined that Plaintiff has the residual functional
perform light work as defined in 20 [C.F.R. §]
404.1567(b) except [she] can occasionally climb ramps or
stairs, can never climb ladders, ropes or scaffolds, can
occasionally balance, stoop, kneel, crouch and crawl, and
must avoid concentrated exposure to operational control of
moving machinery and heights. Further, [Plaintiff] can
understand, remember and carry out simple instructions and
make commensurate work-related decisions. Finally,
[Plaintiff] can respond appropriately to supervision,
co-workers, and work situations, deal with changes in work
settings, and maintain concentration, persistence or pace for
up to and including two hours at a time throughout a workday
with normal breaks.
develop Plaintiff's RFC, the ALJ relied on four separate
grounds. First, the ALJ rendered an adverse credibility
finding against Plaintiff, opining that Plaintiff's
“statements concerning the intensity, persistence[, ]
and limiting effects of these symptoms are not entirely
credible.” AR 21. To support his finding, the ALJ
contrasted Plaintiff's contention “that she is
disabled because of her memory problems” with medical
reports showing Plaintiff had “forgot[ten] to take her
medicine, ” and generally, was in poor compliance with
her medicine regimen. AR 21. The ALJ found it
“significant” that Plaintiff “explained she
was ‘too busy' to take her medicine[ ].” AR
21 (citing AR 341). The ALJ similarly highlighted the
contradiction between Plaintiff's report of
“significant memory problems” and her
self-reported ability “to care for her young son and
her animals[, ] which included ‘a few' chickens and
a dog.” AR 21. Moving to Plaintiff's physical
impairments, the ALJ found “no objective
evidence” of Plaintiff's “increased urinary
frequency.” AR 21. “While she did report this
problem, ” the ALJ observed that “there was no
medical reason or cause for the increased urinary
frequency.” AR 21. He concluded that if Plaintiff's
“conditions were as limiting as she claimed, she would
have had more consistent medical treatment that would have
objectively supported the alleged [limitation].” AR 21.
derived additional support from his consideration of the
Third Party Function report completed by Plaintiff's
husband, Daniel V. Gallegos. AR 20-21 (citing AR 162-70). Mr.
Gallegos asserted that Plaintiff could not focus on certain
tasks and that her mind was in different places. AR 20. The
ALJ discounted this opinion, observing inter alia
that Mr. Gallegos “works full time and thus is unable
to observe [Plaintiff] when he works, ” and that his
report is “inconsistent with the objective evidence of
record.” AR 20-21. As a consequence, the ALJ accorded
“little weight to the opinion of Mr. Gallegos, ”
finding that his “report is unpersuasive and does not
credibly support that [Plaintiff] is disabled.” AR
the ALJ relied on the medical evidence of record. To begin,
the ALJ accorded “little weight” to the opinions
of the non-examining agency consultants who assessed
Plaintiff's physical impairments. AR 18-19. These two
doctors - Dr. Ronald Crow, D.O. and Dr. Stephen A. Whaley -
both opined that Plaintiff's diabetes was a non-severe
impairment. AR 18 (citing AR 54-55, 68). The ALJ took
exception with these opinions, finding instead that the
“hearing level evidence” supports the fact that
Plaintiff's diabetes “is a severe impairment as
opposed to a non-severe impairment.” AR 19.
also assigned little weight to the opinion of Dr. Raul
Young-Rodriguez, M.D., the consultative examiner who assessed
Plaintiff's physical limitations in December 2012. AR 19.
Following his examination of Plaintiff, Dr. Young-Rodriguez
concluded that “there was no clinical evidence to
support a limitation of [Plaintiff's] activity.” AR
19. The ALJ discounted this opinion, finding that “Dr.
Young-Rodriguez'[s] opinion that there was no evidence to
support a limitation of activity is inconsistent with the
objective findings.” AR 19. As an example, the ALJ
highlighted Dr. Young-Rodriguez's observation that
Plaintiff “could stand at one time for 20 minutes and
stand for two hours out of an eight-hour period.” AR
19. In the ALJ's opinion, that restriction “by
itself supports physical ...