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 Rehearing, with Supporting Memorandum
[Doc. 23] (“Motion”), filed on February 6, 2017.
The Commissioner responded on April 21, 2017. [Doc. 27].
Plaintiff replied on May 19, 2017. [Doc. 28]. The parties
have consented to the undersigned's entering final
judgment in this case. [Doc. 7]. Having meticulously reviewed
the entire record and being fully advised in the premises,
the Court finds that the Administrative Law Judge
(“ALJ”) failed to provide an adequate reason for
rejecting the opinion of the consultative examiner in favor
of the opinions of the non-examiners. Accordingly, the Motion
will be granted, and the case will be remanded for further
proceedings. See 42 U.S.C. § 405(g) (sentence
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). 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). Courts
must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. 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.” Id. 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
qualify for disabled widow's benefits under Title II of
the Social Security Act, a claimant must be a widow of a
deceased wage earner, have attained the age of 50, be
unmarried (or meet one of the exceptions at 20 C.F.R. §
404.335(c)(3)), and be under a “disability” as
defined by the Act no later than seven years after the wage
earner's death or seven years after she was last entitled
to Survivor's Benefits. See 20 C.F.R. §
“disability” under the Act, a claimant 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. § 423(d)(1)(A); 20 C.F.R.
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) she is not engaged in
“substantial gainful activity”; and (2)
she 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 (3) her impairment(s) either meet or equal one
of the “Listings” of presumptively disabling
impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If
she cannot show that her impairment meets or equals a
Listing, but she proves that she is unable to perform her
“past relevant work, ” the burden of proof then
shifts to the Commissioner, at step five, to show that the
claimant is able to perform other work in the national
economy, considering her residual functional capacity
(“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.
applied for disabled widow's benefits on November 27,
2012. Tr. 26. She alleged a disability-onset date of December
23, 2011. Id. Her claim was denied initially and on
reconsideration. Id. Plaintiff requested a hearing
before an ALJ. Id. ALJ Ann Farris held a hearing on
September 4, 2014, in Albuquerque, New Mexico. Id.,
Tr. 41-70. Plaintiff appeared in person and was represented
by an attorney. Tr. 26, 41-70. The ALJ heard testimony from
Plaintiff, through a Spanish language interpreter, and an
impartial vocational expert, Nicole B. King. Tr. 26, 41-70.
issued her unfavorable decision on January 20, 2015. Tr. 35.
She found that Plaintiff met the non-disability requirements
for disabled widow's benefits and that her prescribed
period ended on June 30, 2015. Tr. 28. At step one the ALJ
found that Plaintiff had not engaged in substantial gainful
activity since the onset date of her alleged disability.
Id. 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 one severe impairment: fibromyalgia.
Id. Further she found that: “[Plaintiff]'s
medically determinable mental impairments of depression,
conversion disorder; histrionic and narcissistic traits,
considered singly and in combination, do not cause more than
minimal limitation in [Plaintiff]'s ability to perform
basic mental work activities and are therefore
non-severe.” Tr. 29 .
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 30. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 30-34. The ALJ found
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §] 404.1567(b) the claimant can lift up to 20
pounds occasionally; lift or carry up to 10 pounds frequently
in light work as defined by the regulations; she can stand or
walk for approximately 6 hours per 8 hour workday and sit for
approximately 2 hours per 8 hour work day, with normal breaks
except she is limited to occasional stooping, kneeling and
crouching. She is able to frequently reach, handle (use of
the whole hand to seize, hold, grasp, and turn) and finger
(use of the fingers to pick, pinch, etc.).
Tr. 30. At step four the ALJ found that Plaintiff was able to
return to her past relevant work as a waitress. Tr. 34.
Therefore, 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
she denied the claim. Tr. 34-35. Plaintiff submitted new
evidence to the Appeals Council and requested review by the
Appeals Council. The Appeals Council made the new evidence
part of the record but determined that it did “not
provide a basis for changing the [ALJ]'s decision.”
Tr. 2. The ...