United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
[Doc. 20] (“Motion”), filed on September 9, 2016.
The Commissioner responded on December 2, 2016. [Doc. 24].
Plaintiff replied on January 16, 2017. [Doc. 28]. The parties
have consented to the undersigned's entering final
judgment in this case. [Doc. 9]. Having meticulously reviewed
the entire record and being fully advised in the premises,
the Court finds that there is not substantial evidence to
support the administrative law judge's
(“ALJ”) findings at step five. Accordingly, the
Motion will be granted, and the case will be remanded for
further proceedings. See 42 U.S.C. § 405(g)
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) (citing Hamilton v. Sec'y of Health &
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)).
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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). 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 at 1214.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. The 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. While a court may not re-weigh 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 [Commissioner]'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) (citing
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
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
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant must
establish that he 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. § 1382c(a)(3)(A); 20 C.F.R.
light of this definition for disability, a five-step
sequential evaluation process has been established for
evaluating a disability claim. 20 C.F.R. § 416.920;
Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the
first four steps of the evaluation process, the claimant has
the burden to 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 either (3) his impairment(s) either 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.
§ 416.920(a)(4)(i-iv); Grogan, 399 F.3d at
1261. At the fifth step of the evaluation process, the burden
of proof shifts to the Commissioner to show that the claimant
is able to perform other work in the national economy,
considering his residual functional capacity
(“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.
applied for supplemental security income on June 14, 2010.
Tr. 101. He alleged a disability-onset date of September 27,
2009. Id. His claims were denied initially, on
reconsideration, and by an ALJ. Id.; Tr. 107.
Plaintiff requested review by the Appeals Council. Tr.
113-15. On July 25, 2013, the Appeals Council remanded his
case to the ALJ for further proceedings. Id. ALJ Ann
Farris held a second hearing on February 19, 2014, in
Albuquerque, New Mexico. Tr. 35, 52-77. Plaintiff appeared in
person with his attorney. Tr. 52. The ALJ heard testimony
from Plaintiff and from an impartial vocational expert
(“VE”), Thomas A. Grenier. Tr. 35, 55-94.
issued her unfavorable decision on May 29, 2014. Tr. 45. At
step one, she found that Plaintiff had not engaged in
substantial gainful activity since the date of application.
Tr. 38. Because Plaintiff had not engaged in substantial
gainful activity for at least 12 months, the ALJ proceeded to
step two. Id. There, she found that Plaintiff
suffered from the following severe impairments:
“degenerative disc disease of the lumbar spine, type II
diabetes mellitus, status post open reduction and internal
fixation of his right wrist, obesity, and mild hearing loss
in his left ear[.]” Id. She further found that
Plaintiff had no medically determinable mental impairment.
Id. At step three, the ALJ found that none of
Plaintiff's impairments, alone or in combination, met or
medically equaled a Listing. Tr. 38-39.
none of Plaintiff's impairments met or medically equaled
a Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
39-44. The ALJ found that:
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §] 416.967(b) except that he can perform no
more than occasional handling with his right (dominant) hand;
lift no more than 15 pounds; never kneel, couch, or crawl;
should avoid exposure to more than moderate noise levels; and
should avoid exposure to uneven terrain.
four, the ALJ found that Plaintiff was unable to return to
his past relevant work. Tr. 44. At step five, the ALJ found
that, based on Plaintiff's RFC, age, education, and work
experience and the testimony of the VE, Plaintiff could
perform work that exists in significant numbers in the
national economy. Tr. 44-45. Ultimately, the ALJ found that
Plaintiff had not been under a disability, as defined by the
Act, during the relevant time period, and she denied the
claim. Tr. 45.
the ALJ denied the claim, Plaintiff requested review by the
Appeals Council again. See Tr. 1-4. He submitted
additional evidence to the Appeals Council that had not been
before the ALJ. Tr. 2. All of that evidence post-dated the
ALJ's decision. See Id. The Appeals Council
found that the “new information [was] about a later
time[, and therefore did] not affect the [ALJ's
decision].” Tr. 2. Remaining unpersuaded, the Appeals
Council denied Plaintiff's request for review on November
19, 2015. Tr. 1-4. Plaintiff timely filed the instant action
on January 21, 2016. [Doc. 1].
fails to show that the Appeals Council erred in declining to
consider the reports of Dr. Williams and Ms. Grana. However,
on review of the ALJ's decision based on the evidence
that was before her, the Court finds that substantial
evidence does not support her findings at step five.
Therefore, remand is warranted. The Court declines to address
the other errors alleged by Plaintiff at this time.
Plaintiff fails to meet his burden to show that the
records at issue are chronologically pertinent and
submitted evidence to the Appeals Council that post-dated the
ALJ's May 29, 2014 decision. Tr. 2, 7-26. The evidence
comprised: (1) a neurobehavioral evaluation by Betty L.
Williams, Ph.D., dated July 27, 2015, (2) a Medical
Assessment of Ability to do Work-Related Activities (Mental)
by Patricia Grana, LSW, dated February 26, 2015, (3) an MRI
dated August 25, 2014, and (4) a psychological assessment
from Rio Grande Counseling and Guidance dated August 12,
2014. Tr. 7-26. The Appeals Council declined to consider the
new evidence. Tr. 2 (“This new information is about a
later time. Therefore, it does not affect the decision about
whether you were disabled beginning on or before May 29,
2014.”). Plaintiff argues that Dr. Williams' and
Ms. Grana's reports should have been considered and
included in the record by the Appeals Council. [Doc. 20] at
12-17. He makes no argument about the other evidence. See
Id. Because Plaintiff does not allege any error
regarding the psychological assessment or the MRI, the Court
need not address them further.
evidence qualifies for consideration by the Appeals Council
is a question of law subject to de novo review. Threet v.
Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003).
Additional evidence should be considered only if it is new,
material, and chronologically pertinent. 20 C.F.R. §
416.1470(b). Evidence is new “if it is not duplicative
or cumulative, ” and material “if there is a
reasonable possibility that it would have changed the
outcome.” Threet, 353 F.3d at 1191
(alterations and internal quotation marks omitted). Evidence
is chronologically ...