United States District Court, D. New Mexico
LORETTA L. LOPEZ-MARTINEZ, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on the
Social Security Administrative Record (Doc. 10) filed October
24, 2016 in support of Plaintiff Loretta L.
Lopez-Martinez'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. On December 20, 2016,
Plaintiff filed her Motion to Reverse or Remand
Administrative Agency Decision and Memorandum in Support
(“Motion”). (Doc. 13.) The Commissioner filed a
Response in opposition on March 21, 2017 (Doc. 17), and
Plaintiff filed a Reply on April 5, 2017. (Doc. 18.) 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 well taken and is
Background and Procedural Record
Loretta L. Lopez-Martinez (“Ms. Lopez-Martinez”)
alleges that she became disabled on November 15, 2009, at the
age of forty-two because of fibromyalgia, depression,
glaucoma, migraine headaches, post-traumatic stress disorder
(PTSD), and kidney problems. (Tr. 123, 128, 163,
171-172.) Ms. Lopez-Martinez completed twelfth
grade, and worked as a greenhouse supervisor, retail lead
sales person, and public school kitchen manager. (Tr. 130.)
Ms. Lopez-Martinez last met the insured status requirements
of the Social Security Act on December 31, 2013. (Tr. 475.)
April 8, 2010, Ms. Lopez-Martinez 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. 113-14, 123.) Ms. Lopez-Martinez's
application was initially denied on June 7, 2010. (Tr. 48,
49, 52-55.) It was denied again at reconsideration on
December 3, 2010. (Tr. 50, 51, 60-72.) On January 24, 2011,
Ms. Lopez-Martinez requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 63-64.)
The ALJ conducted a hearing on April 4, 2012. (Tr. 28-47.)
Ms. Lopez-Martinez appeared in person at the hearing and
waived her right to representation. (Tr. 30-31, 96.) The ALJ
took testimony from Ms. Lopez-Martinez (Tr. 35-42), and an
impartial vocational expert (“VE”), Pamela
Bowman. (Tr. 42-46, 89, 91-92.) On June 25, 2012, the ALJ
issued an unfavorable decision. (Tr. 8-23.) On August 14,
2013, the Appeals Council issued its decision denying Ms.
Lopez-Martinez's request for review and upholding the
ALJ's final decision. (Tr. 1-6.)
October 11, 2013, Ms. Lopez-Martinez timely filed a Complaint
seeking judicial review of the Commissioner's final
decision. (USDC Civ. No. 13-989 GBW, Doc. 1.) The parties
fully briefed the issues raised for judicial review.
(Id., Docs. 17, 18, 21, 24.) On February 26, 2015,
Magistrate Judge Gregory B. Wormuth, presiding by consent,
entered an Order Granting Plaintiff's Motion to Reverse
and Remand. (Id., Doc. 26, Tr. 499-524.) Judge
Wormuth held that the ALJ erred in assigning weight to
Plaintiff's treating source opinions and in assessing her
RFC. (Tr. 524.)
March 15, 2016, ALJ Gerald L. Meyer conducted a second
hearing pursuant to the Appeals Council's order remanding
the case. (Tr. 552-92.) Ms. Lopez-Martinez appeared in person
at the hearing with her attorney Michael Liebman.
(Id.) The ALJ took testimony from Ms. Lopez-Martinez
(Tr. 557-583), and from an impartial VE, Diane Webber (Tr.
583-91). On April 28, 2016, the ALJ issued an unfavorable
decision. (Tr. 470-87.) Because this case had already been
remanded following judicial review, Ms. Lopez-Martinez 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).
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; 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); 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. 20 C.F.R. § 404.1520(a)(v); Grogan,
399 F.3d at 1261.
made his decision that Ms. Lopez-Martinez was not disabled at
step five of the sequential evaluation. He found that Ms.
Lopez-Martinez had the residual functional capacity to
perform light work as defined in 20 CFR § 404.1567(b).
The ALJ explained that
[s]pecifically, the claimant could lift or carry ten pounds
frequently or twenty pounds occasionally, stand and walk
about six or sit six hours in an eight hour day with normal
breaks, but must be allowed to stretch or change positions
every hour. The claimant could occasionally climb ramps and
stairs, stoop, kneel, and crouch. The claimant could never
climb ropes, ladders, or scaffolding, crawl, be exposed to
extreme heat or extreme cold, noxious odors or gases,
unprotected heights or dangerous machinery, vibrating
surfaces, or excessive noise. Mentally, the claimant was
limited to understanding, remembering and carrying out only
simple instructions (just one to three step tasks) that were
routine or repetitive without frequent changes in duties. The
claimant was limited to only occasional contact with the
(Tr. 479-80.) Based on the RFC and the testimony of the VE,
the ALJ concluded that Ms. Lopez-Martinez was not capable of
performing her past relevant work, but that considering her
age, education, work experience, and RFC, there were jobs
that existed in significant numbers in the national economy
that she could perform and she was therefore not disabled.
Lopez-Martinez asserts three arguments in support of her
Motion as follows: (1) the ALJ's RFC is not supported by
substantial evidence; (2) the ALJ failed to address the
VE's testimony that light and sedentary exertional level
jobs would be eliminated if Ms. Lopez-Martinez required
greater limitations than articulated in the ALJ's
hypothetical; and (3) the ALJ's evaluation of Ms.
Lopez-Martinez's symptoms pursuant to SSR 16-3p is not
supported by substantial evidence. (Doc. 13 at 20-26.) The
Court agrees that the RFC is not supported by substantial
evidence because the ALJ improperly evaluated the treating
physician opinions. For this reason, this case requires
Relevant Medical History
Lopez-Martinez has a long history of care and treatment for
fibromyalgia, migraines, depression and post-traumatic stress
disorder (“PTSD”). On March 8, 2012, Dr. Gerzain
Chavez represented in a “To Whom It May Concern”
letter that he treated Ms. Lopez-Martinez for six years
beginning in 2006 for fibromyalgia, depression, and
PTSD. (Tr. 410-11.) The Administrative Record,
however, only contains Dr. Chavez's treatment notes for
2009 and 2010. Those treatment notes indicate that from
February 9, 2009, through April 6, 2010, Dr. Chavez saw Ms.
Lopez-Martinez ten times and consistently assessed, inter
alia, myalgias/myositis and depression. (Tr. 221, 226,
230, 234, 237, 240, 244, 250, 255, 258.) Dr. Chavez also
consistently noted that Ms. Lopez-Martinez was positive for
decreased activity, generalized weakness, fatigue,
irritability, lethargy, pallor, insomnia, back pain, muscle
weakness, myalgias, neck stiffness, malaise, difficulty
concentrating and rheumatologic manifestations. (Tr. 219-220,
225, 228-29, 232-33, 236, 239, 243, 249, 253.) Dr. Chavez
prescribed various medications to treat Ms.
Lopez-Martinez's pain, depression and PTSD, including
Percocet, Lortab, Tramadol, Cymbalta, Xanax, Wellbutrin,
Temazepam, Ambien, Imitrex, Treximet, and Phenergan.
24, 2009, Ms. Lopez-Martinez established care at the Santa Fe
Community Guidance Center for Suboxone treatment related to
chronic pain and opioid addiction. (Tr. 195, 215.) There she
received primary physician care for administering and
monitoring her Suboxone treatment, and managing her chronic
pain and other health-related issues, and received
psychiatric and behavioral health care for managing her
mental health issues.
Mark Reininga provided primary care and Suboxone treatment
for Ms. Lopez-Martinez from July 24, 2009, through December
27, 2012. Over the course of this three and a half year
period, Dr. Reininga saw Ms. Lopez-Martinez approximately
monthly (forty-one times) and consistently assessed,
inter alia, opioid dependence and fibromyalgia. (Tr.
203, 205-06, 208-10, 213-15, 355-58, 397, 422-31, 726-88.)
Dr. Reininga's treatment notes indicate that Ms.
Lopez-Martinez regularly complained of fibromyalgia pain,
back pain and migraines. (Tr. 206, 208-09, 210, 214, 398-99,
400-02, 428-31, 720-25, 741, 744, 748, 750, 754, 762, 765-66,
770, 787.) Although her pain level fluctuated, Dr. Reininga
generally noted it between 5-7/10. (Tr. 203, 205-06, 208-10,
213-15, 355-58, 397, 422-31, 726-88.) Dr. Reininga noted many
times that Ms. Lopez-Martinez's level of distress was
anxious, and that her appearance was sad, chronically-ill
appearing, and depressed. (Tr. 745, 751, 757, 760, 763, 766,
770.) On March 21, 2012, Dr. Reininga prepared a “To
Whom It May Concern” letter and opined that Ms.
Lopez-Martinez suffered from serious symptoms of fibromyalgia
and migraine headaches that were exacerbated by her ...