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. 17] (“Motion”), filed on December 23, 2016.
The Commissioner responded on March 20, 2017. [Doc. 21].
Plaintiff replied on April 10, 2017. [Doc. 24]. The parties
have consented to the undersigned's entering final
judgment in this case. [Doc. 8]. Having meticulously reviewed
the entire record and being fully advised in the premises,
the Court finds that the ALJ failed to adequately explain why
he rejected portions of Dr. Blacharsh's and Dr. Cox's
opinions. Accordingly, the Motion will be granted, and the
case will be remanded for further proceedings. See
42 U.S.C. § 405(g) (sentence four).
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 to deny benefits 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 may 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
court's review is limited to the Commissioner's final
decision. 42 U.S.C. § 405(g). Generally, the
Commissioner's final decision is that of the
administrative law judge (“ALJ”), but in some
cases, it is that of the Appeals Council. Williams v.
Bowen, 844 F.2d 748, 749 (10th Cir. 1988). Where the
Appeals Council has modified the ALJ's decision, the
Appeals Council's decision is the final decision of the
Commissioner, White v. Schweiker, 725 F.2d 91, 94
(10th Cir. 1984), regardless of whether the Appeals Council
officially granted or denied review, McDaniel v.
Sullivan, No. 91-5188, 1992 U.S. App. LEXIS 18471, at *4
(10th Cir. July 31, 1992) (unpublished) (citing Williams
v. Bowen, 844 F.2d 748, 749 (10th Cir. 1988)). However,
if the Appeals Council denies review and does not modify the
ALJ's decision, the ALJ's decision becomes the
Commissioner's final decision, and the district court
reviews the ALJ's decision. O'Dell v.
Shalala, 44 F.3d 855, 858 (10th Cir. 1994) (citing 20
C.F.R. § 404.981).
the Tenth Circuit Court of Appeals has held that in some
situations, a district court must review the ALJ's
decision but also consider evidence beyond that which was
considered by the ALJ. Martinez v. Barnhart, 444
F.3d 1201, 1207-08 (10th Cir. 2006); O'Dell, 44
F.3d at 859. Pursuant to 20 C.F.R. § 416.1470(b), any
new and material evidence that relates to the period on or
before the date of the ALJ's decision must be considered
by the Appeals Council in determining whether to review the
ALJ's decision. Because a court reviews the final
decision based on “the record as a whole, ” a
court considers the evidence that was before the ALJ as well
as the new and material evidence that was before the Appeals
Council. O'Dell, 44 F.3d at 858 (citing
Castellano v. Sec'y of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).
Considering all of the evidence in the administrative record,
a court decides whether the ALJ's findings were supported
by substantial evidence and whether the correct legal
standards were applied. Martinez, 444 F.3d at 1204;
Vallejo v. Berryhill, 849 F.3d 951, 956 (10th Cir.
2017). Accordingly, here, the Court reviews the ALJ's
decision (not the Appeals Council's denial of review)
considering the entire record, including the opinions of
counselor Hallford, which were added to the record by the
Appeals Council after the ALJ issued his decision.
See Tr. 2, 5, 374-78.
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 February 27,
2013. Tr. 26. He alleged a disability-onset date of May 1,
2011. Id. His claim was denied initially and on
reconsideration. Id. Plaintiff requested a hearing
before an ALJ. Id. ALJ Thomas Cheffins held a
hearing on September 12, 2014, in Phoenix, Arizona.
Id. Plaintiff appeared pro se and by telephone from
Albuquerque, New Mexico. Tr. 26, 41. Among other things,
Plaintiff testified that he had recently started treatment
with a new counselor named Gary Hallford, whom he was seeing
once per week. Tr. 45. The ALJ asked Plaintiff to sign a
release for counselor Hallford's records, and Plaintiff
agreed. Tr. 45-46, 58-59.
issued his unfavorable decision on December 19, 2014. Tr. 34.
At step one of the sequential evaluation process, he found
that Plaintiff had engaged in some substantial gainful
activity, for the fourth quarter of 2013 (prior to the
application date) and for “only a short period
subsequent to the application date.” Tr. 28.
Nevertheless, the ALJ gave Plaintiff “the benefit of
the doubt, ” and proceeded with the five-step
sequential evaluation process for the entire period since the
application date. Id. At step two the ALJ found that
Plaintiff suffered from the following severe impairments:
post-traumatic stress disorder (“PTSD”), anxiety
disorder, and substance use disorder. Tr. 28-29. At step
three the ALJ found that none of Plaintiff's impairments,
alone or in combination, met or medically equaled a Listing.
none of Plaintiff's impairments met or medically equaled
a Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
31-33. The ALJ found that
[Plaintiff] has the [RFC] to perform a full range of work at
all exertional levels but with the following non-exertional
limitations: [Plaintiff] can understand, remember, and carry
out detailed work instructions and make decisions. He can
respond appropriately to basic work setting changes. He can
also respond appropriately to supervision, co-workers, and
Tr. 31. At step four, the ALJ found that Plaintiff could
return to his past relevant work as a laborer. Tr. 33.
Because he found that Plaintiff could return to his past
work, the ALJ did not proceed to step five. Ultimately, the
ALJ found that Plaintiff had not been under a disability, as
defined by the Act, during the relevant time period, and he
denied the claim. Tr. 34.
the ALJ denied the claim, Plaintiff hired an attorney, who
submitted opinions as to Plaintiff's functional
limitations from counselor Hallford to the Appeals
Council. Tr. 20-22. The Appeals Council accepted
the evidence and made it part of the record. Tr. 2, 5.
However, the Appeals Council found that counselor
Hallford's reports “[did] not provide a basis for
changing the [ALJ]'s decision.” Tr. 2. No
further reasoning or analysis was provided. See Tr.
1-5. Remaining unpersuaded, the Appeals ...