United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
(Doc. 19), filed April 5, 2017. Pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure
73(b), the parties have consented to me serving as the
presiding judge and entering final judgment. Doc. 8.
Having reviewed the parties' submissions, the relevant
law, and the relevant portions of the Administrative Record,
the Court will grant the Motion.
asserts that she became disabled and unable to sustain any
substantial gainful activity at the age of 26 due to various
impairments. The Administrative Law Judge (“ALJ”)
assigned to review her case reached the opposite conclusion.
Plaintiff now appeals to this Court, asserting that the ALJ
improperly discounted the opinion of her treating nurse
practitioner and relied on unsound information provided by
the vocational expert (“VE”), who testified that
Plaintiff can still work. The Court agrees that the ALJ's
reasons for discounting the opinions of Plaintiff's
treating nurse practitioner do not withstand scrutiny, and
therefore will remand on this basis.
September 24, 2012, Plaintiff protectively filed applications
with the Social Security Administration for disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. AR at
79-80, 187-88. Plaintiff alleged a disability onset date
of May 12, 2012, the day she stopped working, due to
diabetes, migraines, Cushing's syndrome, degenerative
disk disease, polycystic ovary syndrome (“PCOS”)
and recurring abscesses. AR at 208, 219. Plaintiff
had most recently worked as a caregiver for the disabled.
AR at 55. She testified that she can no longer do
this kind of work because it was too hard on her back, she
“was calling in constantly due to the pain” and
because she was “getting a lot of abscesses that [she]
had to get removed surgically.” AR at 56.
Plaintiff has neither looked for work nor engaged the
services of the state Division of Vocational Rehabilitation
since she stopped working in this capacity. AR at
agency denied Plaintiff's claims initially and upon
reconsideration, and she requested a de novo hearing
before an administrative law judge. AR at 79-124,
140. ALJ Barry O'Melinn held an evidentiary hearing on
August 6, 2014, at which Plaintiff and Vocational Expert
(“VE”) Diane Weber testified. AR at
50-78. Plaintiff was represented by Ruth Cohen, of the office
of Bill Gordon & Associates, at the hearing. AR
at 51. Ms. Cohen stipulated to Ms. Weber's credentials.
AR at 72.
issued an unfavorable decision on February 2, 2015.
AR at 30-43. Ms. Cohen subsequently withdrew from
Plaintiff's case, AR at 29, and Plaintiff's
current counsel, Michael Armstrong, entered his appearance on
March 9, 2015. AR at 26-28.
submitted a Request for Review of the ALJ's Decision to
the Appeals Council, which the Council denied on June 24,
2016. AR at 28, 1-4. As such, the ALJ's decision
became the final decision of the Commissioner. Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court
now has jurisdiction to review the decision pursuant to 42
U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
claimant seeking disability benefits must establish that 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. §
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),
416.905(a). The Commissioner must use a five-step sequential
evaluation process to determine eligibility for benefits. 20
C.F.R. §§ 404.1520(a)(4),
One of the sequential evaluation process, ALJ O'Melinn
found that Plaintiff has not engaged in substantial gainful
activity since her alleged onset date. AR at 35. At Step Two,
he determined that Plaintiff has the severe impairments of
“diabetes mellitus; hypertension; obesity; back
disorder; hypothyroid; headaches; polyarthralgias;
depression; and fibromyalgia.” AR at 35. At Step Three,
the ALJ concluded that Plaintiff's impairments,
individually and in combination, do not meet or medically
equal the regulatory “listings.” AR at 36-37.
claimant does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. §§ 404.1520(e),
416.920(e). RFC “is the most you can still do despite
your limitations.” 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). “RFC is not the
least an individual can do despite his or her
limitations or restrictions, but the most.”
SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ
determined that Plaintiff retains the RFC to
perform a range of sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) and SSR 83-10 specifically as
follows: the claimant can lift and/or carry 10 pounds
occasionally and less than 10 pounds frequently; she can
stand and/or walk for six hours out of an eight-hour workday
with regular breaks; she can sit for six hours out of an
eight-hour workday with regular breaks and she is unlimited
with respect to pushing and/or pulling, other than as
indicated for lifting and/or carrying. Claimant must never
climb ladders, ropes or scaffolds. She is limited to
occasional climbing of ramps, stairs, balancing, stooping,
kneeling, crouching and crawling. She must avoid concentrated
exposure to extreme cold, heat, exposure to operation control
of moving machinery, unprotected heights and hazardous
machinery. The claimant can understand, carry out, and
remember simple instructions and make commensurate work
related decisions, respond appropriately to supervision,
coworkers and works situations, deal with routine changes in
work setting, maintain concentration persistence and pace of
up to and including 2 hours at a time with normal breaks
throughout the workday.
AR at 37-38.
this RFC at Steps Four and Five, and relying on the
unchallenged testimony of the VE, the ALJ determined that
Plaintiff is unable to perform her past relevant work as a
home attendant, cashier, or salesperson. AR at 41.
However, the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform despite her limitations. AR at 41-42.
Specifically, the ALJ determined that Plaintiff retains the
residual functional capacity to work as an addresser, final