United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITEDC STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand to Agency for a Rehearing, With
Supporting Memorandum” (“Motion”), filed on
November 7, 2016. ECF No. 22. The Commissioner responded on
February 7, 2017. ECF No. 26. Plaintiff replied on March 6,
2017. ECF No. 27. Having meticulously reviewed the entire
record and the parties' pleadings, the Court finds that
Plaintiff's Motion is not well taken and that the
Administrative Law Judge's (“ALJ's”)
ruling should be AFFIRMED. Therefore, and for the further
reasons articulated below, the Court will DENY
was born on October 16, 1974, in Pennsylvania. Administrative
R. (“AR”) 125, 397. Plaintiff graduated from high
school in 1993 and worked thereafter as a cashier in various
capacities and as a home health care provider. AR 291. She
quit working sometime in 2011. AR 291.
filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on December 13, 2012. AR 265-276.
Plaintiff claimed disability beginning on July 31, 2011,
based on a mental problem, an emotional problem, depression,
anxiety attacks, a neck injury, migraines, chronic neck and
shoulder pain, and deformity of the spine. The Social
Security Administration (“SSA”) denied
Plaintiff's application initially on March 13, 2013, and
upon reconsideration on May 30, 2013. AR 138, 152, 168, 183.
At her request, Plaintiff received a de novo hearing
before ALJ Gerardo Perez on October 2, 2014, at which
Plaintiff, her attorney, and vocational expert
(“VE”) Thomas Munget appeared. AR 66-95. On
August 5, 2014, the ALJ issued his decision, finding that
Plaintiff was not disabled within the meaning of the Social
Security Act (“the Act”). AR 60. Plaintiff
appealed to the SSA Appeals Council, but it declined review
on February 17, 2016. AR 1-4. As a consequence, the ALJ's
decision became the final decision of the Commissioner. 20
C.F.R. § 422.210(a) (2016). Plaintiff timely filed her
appeal with this Court on March 24, 2016. ECF No. 1.
advances two grounds for relief. First, Plaintiff argues that
the ALJ failed to properly consider and incorporate the
limitations caused by her migraines into her residual
functional capacity (“RFC”). Pl.'s Mot. 8-11,
ECF No. 22. Additionally, she contends the ALJ committed
legal error by improperly evaluating the opinion of
consultative examiner Dr. John Koewler, Ph.D. Id. at
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 [he] 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) (2016). 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 her 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 she 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 in
THE ALJ'S DECISION
issued his decision on December 19, 2014. AR 47. At step one,
he found that Plaintiff had not engaged in substantial
gainful activity since the alleged disability onset date of
July 31, 2011. AR 52. At step two, the ALJ found
Plaintiff's degenerative disc disease, affective
disorder, personality disorder, and anxiety to be severe
impairments. AR 52. In contrast, the ALJ found
Plaintiff's migraines to be non-severe. AR 53.
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 53-54. The ALJ began his
discussion with Plaintiff's mental impairments, which he
considered under Listing 12.04 (affective disorders), 12.06
(anxiety-related disorders), and 12.08 (personality
disorders). AR 53. The ALJ determined the paragraph B
criteria of these Listings were not met “[b]ecause the
claimant's mental impairments do not cause at least two
‘marked' limitations or one ‘marked'
limitation and ‘repeated' episodes of
decompensation, each of extended duration.” AR 54. He
then explained his reasoning regarding paragraph B's four
the ALJ evaluated Plaintiff's activities of daily living
and found her to have only a mild restriction. The ALJ
recalled Plaintiff's testimony that “during the
day, she is able to care for her personal grooming; cook
simple meals, wash dishes[, ] do laundry[, ] fold and put
away clothes; and sweep, mop, dust[, ] and vacuum for short
periods.” AR 53. Moreover, he observed that Plaintiff
“is able to drive and grocery shop.” AR 53.
the ALJ catalogued the dichotomy in Plaintiff's social
functioning, noting on the one hand that she “isolates
herself from the world and avoids talking to people, ”
“prefers to sleep, ” and “does not attend
church, ” while on the other, “she has friends
and associates” and “gets along with her mother
and children.” AR 53. The ALJ accounted for these
seeming contradictions by finding the claimant has moderate
difficulties with social functioning. AR 53.
as to Plaintiff's concentration, persistence, and pace,
the ALJ found Plaintiff had moderate difficulties. To
buttress the finding, the ALJ turned to Plaintiff's
testimony that she has “memory problems and forgets
things, ” “has problems recalling people's
names, ” “forgets the movies she has watched,
” and “has also forgotten that she was cooking
after she began another project.” AR 54.
regarding episodes of decompensation, the ALJ found that
Plaintiff “has experienced no episodes of
decompensation, which have been of extended duration.”
AR 54. This corresponded with his finding that the paragraph
C criteria of the relevant listings were not met. AR 54.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 54-58. “After careful
consideration of the entire record, ” the ALJ
determined that Plaintiff:
[H]as the residual functional capacity to perform light work
as defined in 20 [C.F.R. §§] 404.1567(b) and
416.967(b) except no climbing of ladders[, ] ropes[, ] or
scaffolds; [may] occasional[ly] climb[ ] ramps and stairs;
occasional[ly] balance, stoop, kneel, crouch and crawl; no
overhead reaching above shoulder level bilaterally; limited
to understanding, remembering[, ] ...