United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 12) filed November 25, 2016 in
support of Plaintiff Patrick Feary's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claim for Title II disability
insurance benefits and for Title XVI supplemental security
income benefits. On February 6, 2017, Plaintiff filed his
Motion to Reverse and Remand for Rehearing With Supporting
Memorandum (“Motion”). (Doc. 17.) The
Commissioner filed a Response in opposition on April 7, 2017
(Doc. 19), and Plaintiff filed a Reply on April 21, 2017.
(Doc. 20.) The Court has jurisdiction to review the
Commissioner's final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed
the entire record and the applicable law and being fully
advised in the premises, the Court finds the Motion is not
well taken and is DENIED.
Background and Procedural Record
Patrick Feary (“Mr. Feary”) alleges that he
became disabled on February 3, 2011, at the age of
thirty-three because of severe rheumatoid arthritis and
obesity. (Tr. 95-96, 97-102, 142.) Mr. Feary is a high school
graduate, and worked as a laborer and laborer/forklift
driver. (Tr. 143.)
26, 2011, Mr. Feary protectively filed an application for
Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
seq. (Tr. 95-96, 138.) On June 22, 2011, Mr. Feary filed
for Supplemental Security Income (“SSI”) under
Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr.
97-102.) Mr. Feary's applications were initially denied
on August 19, 2011. (Tr. 53, 54, 60-63.) They were denied
again at reconsideration on October 11, 2011. (Tr. 55, 56,
67, 68.) On October 21, 2011, Mr. Feary requested a hearing
before an Administrative Law Judge (“ALJ”). (Tr.
69-70.) ALJ Daniel Dadabo conducted a hearing on October 11,
2012. (Tr. 20-52.) Mr. Feary appeared in person at the
hearing and was represented by Attorney Stephen
McCarty. (Id.) The ALJ took testimony from
Mr. Feary (Tr. 24-42), and an impartial vocational expert
(“VE”), Craig Johnston (Tr. 42-51). On December
11, 2012, the ALJ issued an unfavorable decision. (Tr. 8-18.)
On January 31, 2014, the Appeals Council issued its decision
denying Mr. Feary's request for review and upholding the
ALJ's final decision. (Tr. 1-5.)
26, 2014, Mr. Feary timely filed a Complaint seeking judicial
review of the Commissioner's final decision. (USDC Civ.
No. 14-301 CG, Doc. 1.) The parties fully briefed the issues
raised for judicial review. (Id., Docs. 15, 17, 18.)
On February 23, 2015, Magistrate Judge Carmen Garza,
presiding by consent, entered an Order Granting
Plaintiff's Motion to Reverse and Remand. (Id.,
Doc. 20, Tr. 523-37.) Judge Garza held that the ALJ erred in
failing to expressly address Dr. Lucio Martinez's
opinion. (Tr. 536.)
January 20, 2016, ALJ D'Lisa Simmons conducted a second
hearing pursuant to the Appeals Council's order remanding
the case. (Tr. 470-502.) Mr. Feary appeared in
person at the hearing with his attorney Michael Armstrong.
(Id., Tr. 589.) The ALJ took testimony from Mr.
Feary (Tr. 476-489), and from an impartial VE, Diane Webber
(Tr. 490-501). On March 4, 2016, the ALJ issued an
unfavorable decision. (Tr. 444-463.) Because this case had
already been remanded following judicial review, Mr. Feary
did not file written exceptions with the Appeals Council and
instead timely filed the instant action before this Court as
permitted by 20 C.F.R. §§ 404.984(d), 416.1484(d).
Standard of Review
Court reviews the Commissioner's decision to determine
whether the factual findings are supported by substantial
evidence in the record and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Hamlin
v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Langley v. Barnhart, 373 F.3d 1116, 1118
(10th Cir. 2004). A decision is based on
substantial evidence where it is supported by “relevant
evidence . . . a reasonable mind might accept as adequate to
support a conclusion.” Langley, 373 F.3d at
1118. A decision “is not based on substantial evidence
if it is overwhelmed by other evidence in the record[,
]” Langley, 373 F.3d at 1118, or
“constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). The Commissioner's decision must “provide
this court with a sufficient basis to determine that
appropriate legal principles have been followed.”
Jensen v. Barnhart, 436 F.3d 1163, 1165
(10th Cir. 2005). Therefore, although an ALJ is
not required to discuss every piece of evidence, “the
record must demonstrate that the ALJ considered all of the
evidence, ” and “the [ALJ's] reasons for
finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
considering an application for disability insurance benefits,
the Commissioner uses a five-step sequential evaluation
process. 20 C.F.R. §§ 404.1520, 416.920; Bowen
v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears
the burden of establishing a prima facie case of disability
at steps one through four. 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). If the claimant successfully meets that burden, the
burden of proof shifts to the Commissioner at step five to
show that the claimant is able to perform other work in the
national economy, considering the claimant's RFC, age,
education, and work experience. 404.1520(a)(v),
416.920(a)(v); Grogan, 399 F.3d at 1261.
made her decision that Mr. Feary was not disabled at step
five of the sequential evaluation. She found that Mr. Feary
had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except
he can sit, stand, or walk a total of 6 hours each,
intermittently, throughout the 8-hour workday; frequently
reach; frequently handle bilaterally; frequently finger
bilaterally; no job requiring use of scaffolding, ropes, or
ladders; should avoid hazardous work environments involving
use of dangerous machinery or exposure to unprotected
heights; no exposure to environments with extreme cold; and
should alternate between sitting and standing every 30 to 35
(Tr. 451.) Based on the RFC and the testimony of the VE, the
ALJ concluded that considering Mr. Feary's age,
education, work experience, and residual functional capacity,
there were jobs that existed in significant numbers in the
national economy that he could perform and that he was
therefore not disabled. (Tr. 461.)
Feary asserts three arguments in support of his Motion as
follows: (1) the ALJ improperly rejected Dr. Lucio
Martinez's medical opinion; (2) the ALJ's RFC
findings were internally inconsistent; and (3) the ALJ failed
to resolve the conflict between the DOT and the VE's
testimony regarding Mr. Feary's need to alternate between
sitting and standing for short periods of time. (Doc. 17 at
15-24.) For the reasons discussed below, the Court finds that
the ALJ applied the correct legal standards in determining
that Mr. Feary is not disabled and that her determination is
supported by substantial evidence.
Treating Physician Dr. Lucio Martinez
Feary saw Dr. Lucio Martinez eight times over thirteen months
from January 7, 2010, through February 24, 2011. (Tr. 890,
892, 895, 898, 900, 904-05, 913, 918.) Mr. Feary's chief
complaints at those appointments were hypertension and
diverticulitis, although he also complained at some visits of
increased arthritic pain in his hands, knees and left ankle
for which Dr. Martinez referred him to rheumatologist Dr.
Rovinder Singh Saini. (Id.) Dr. Martinez performed
brief physical exams at each of the eight visits and noted
for each exam, inter alia, that Mr. Feary had no
extremity cyanosis, clubbing or edema. (Id.) On
August 23, 2011, Dr. Martinez completed an Arthritic Report
(Degenerative or Inflammatory) on Mr. Feary's behalf.
(Tr. 272-73.) He noted that Mr. Feary complained of pain,
tenderness, stiffness, redness, warmth and swelling in his
ankles, knees, hips, fingers and wrists, due to rheumatoid
arthritis and morbid obesity. (Tr. 272.) Dr. Martinez
indicated physical findings of edema and swelling in Mr.
Feary's fingers and toes, mild redness, and no warmth.
(Id.) Dr. Martinez did not measure Mr. Feary's
grip, but noted some swelling in his thumbs. (Id.)
Dr. Martinez also noted that Mr. Feary had loss of joint
motion in his fingers and toes. (Tr. 273.) Dr. Martinez
indicated that Mr. Feary had normal ambulation and gait, and
did not need an assistive device. (Id.) Dr. Martinez
assessed that Mr. Feary had (1) significant limitations in
his ability to do repetitive reaching, handling or fingering;
(2) significant limitations in his ability to grasp, turn and
twist objects; (3) occasional difficulties with holding
utensils and turning a door knob; (4) ...