United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT, UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for a Rehearing With Supporting
Memorandum” (“Motion”), filed on January
12, 2017. ECF No. 15. The Commissioner responded on April 3,
2017. ECF No. 19. Plaintiff replied on April 24, 2017. ECF
No. 20. Having meticulously reviewed the briefing and the
entire record, the Court finds that Plaintiff's Motion is
well taken and that the Administrative Law Judge's
(“ALJ's”) ruling should be
REVERSED and REMANDED.
Therefore, and for the further reasons articulated below, the
Court will GRANT Plaintiff's Motion.
was born on September 30, 1969, in San Leandro, California.
Administrative R. (“AR”) 495. She received high
marks in high school, but dropped out her senior year. AR
495. Plaintiff later earned her general equivalency diploma
(“GED”) and went on to serve six years in the Air
National Guard. AR 495. Plaintiff also accrued a significant
body of past relevant work, including positions as a
technical writer, editor of technical publications, systems
analyst, environmental compliance manager, training
specialist, and residential aide. AR 32.
filed an application for Disability Insurance Benefits
(“DIB”) on June 26, 2014. AR 76. Plaintiff
claimed disability beginning on May 6, 2013, based on bipolar
disorder, major depression, severe anxiety, post-traumatic
stress disorder (“PTSD”), subluxation of the neck
and brain, chronic pain, insomnia, chronic fatigue,
cholesterol, and allergies. AR 78, 207. Plaintiff had
previously filed a DIB claim in 2013 that was denied. AR 78.
The Social Security Administration (“SSA”) denied
Plaintiff's 2014 application initially on January 2, 2015
[AR 95], and upon reconsideration on April 15, 2015. AR 113.
At her request, Plaintiff received a de novo hearing
before ALJ Lillian Richter on December 9, 2015, at which
Plaintiff, her attorney, and a vocational expert
(“VE”) appeared. AR 41-75. On January 13, 2016,
the ALJ issued her decision, finding that Plaintiff was not
disabled within the meaning of the Social Security Act
(“the Act”). AR 21-33. Plaintiff appealed to the
SSA Appeals Council, but it declined review on April 18,
2016. AR 1-3. As a consequence, the ALJ's decision became
the final decision of the Commissioner. 20 C.F.R. §
timely filed her appeal with this Court on June 21, 2016. ECF
advances four grounds for relief. First, she argues that the
ALJ committed legal error in her analysis of the opinion of
Plaintiff's treating psychologist, Dr. Louis Wynne, Ph.D.
Pl.'s Mot. 13-16, ECF No. 15. Next, she contends that
remand is warranted under Sentence Six of 42 U.S.C. §
405(g) (2012) for consideration of new and material evidence.
Id. at 16-19. Lastly, Plaintiff's third and
fourth claims allege that the ALJ failed to resolve conflicts
between the Dictionary of Occupational Titles
(“DOT”) and the VE's testimony regarding
sit/stand options and reaching limitations. Id. at
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. The Court's review of that final
agency decision is both factual and legal. See 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)) (“The standard
of review in a social security appeal is whether the correct
legal standards were applied and whether the decision is
supported by substantial evidence.”).
findings at the administrative level are conclusive “if
supported by substantial evidence.” 42 U.S.C. §
405(g) (2012). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” 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). An ALJ's 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. Substantial evidence does
not, however, require a preponderance of the evidence.
See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for that of the Commissioner.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
the review of the ALJ's legal decisions, the Court
examines “whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
if substantial evidence supports the ALJ's findings and
the correct legal standards were applied, the
Commissioner's decision stands and the plaintiff is not
entitled to relief. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2017). At the first three steps, the ALJ
considers the claimant's current work activity, the
medical severity of the claimant's impairments, and the
requirements of the Listing of Impairments. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt.
404, Subpt. P, App. 1. If a claimant's impairments are
not equal to one of those in the Listing of Impairments, then
the ALJ proceeds to the first of three phases of step four
and determines the claimant's residual functional
capacity (“RFC”). See Winfrey, 92 F.3d
at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In
phase two, the ALJ determines the physical and mental demands
of the claimant's past relevant work, and in the third
phase, compares the claimant's RFC with the functional
requirements of her past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from
performing her past work, then she is not disabled. 20 C.F.R.
§§ 404.1520(f), 416.920(f). [Plaintiff] bears the
burden of proof on the question of disability for the first
four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482
U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d
1456, 1460 (10th Cir. 1987).
claimant cannot return to her past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is nonetheless capable of performing other
jobs existing in significant numbers in the national economy.
See Thomas, 540 U.S. at 24-25; see also Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)
(discussing the five-step sequential evaluation process in
THE ALJ'S DECISION
issued her decision on January 13, 2016. AR 18. At step one,
she found that Plaintiff had not engaged in substantial
gainful activity since the alleged disability onset date of
May 6, 2013. AR 23. At step two, the ALJ found Plaintiff to
suffer from numerous severe impairments, including: (1)
dysthymic disorder; (2) alcohol use disorder, in remission;
(3) degenerative changes in the cervical spine; (4) bipolar
disorder; (5) cervical spondylosis with disc osteophyte
complexes at ¶ 5-C6 and C6-C7; (6) cervical facet
syndrome; (7) enthesopathy of right hip region; (8)
degenerative joint disease of the thoracic spine; (9)
degenerative joint disease of the lumbar spine L4-L5 and
L5-Sl; (10) osteoarthritis of the hips and sacroiliac
(“SI”) joint; and (11) PTSD. AR 23.
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. AR 24-26. This finding included
an analysis of Plaintiff's mental impairments, which the
ALJ found did not meet or medically equal the criteria of
Listing Sections 12.04 (affective disorders) or 12.06
(anxiety-related disorders). AR 24-26.
found that the paragraph B criteria of Listings 12.04 and
12.06 were not met “[b]ecause the
claimant's mental impairments do not cause at least two
‘marked' limitations or one ‘marked'
limitation and ‘repeated' episodes of
decompensation, each of extended duration.” AR 25. She
then explained her reasoning regarding paragraph B's four
subparts, beginning with activities of daily living. There,
the ALJ found Plaintiff to have a moderate restriction. The
ALJ first looked to Plaintiff's own function statement,
noting that despite her mental impairments, “she lives
alone and is able to maintain her own household” and
that “she has two small dogs she cares for; she watches
television; she can prepare a simple meal; she can go to the
gym; she is very organized and likes to have things in order;
she does her laundry; and performs all her own household
chores.” AR 24. In addition, the ALJ cited
Plaintiff's testimony that she “goes to the gym
five times a week and works out about an hour each
time.” AR 34. Taken together, Plaintiff's reports
led the ALJ to opine that Plaintiff “[c]learly”
has “no more than a moderate degree of limitation on
her activities of daily living.” AR 24.
social functioning, the ALJ found Plaintiff to suffer
moderate difficulties. The ALJ noted that the evidence showed
Plaintiff could “interact appropriately and effectively
with other individuals on a sustained basis, ” but that
Plaintiff was nonetheless “a recovering
alcoholic.” AR 25. Similarly, the ALJ detailed the
various methods by which Plaintiff assists others through
Alcoholics Anonymous, but also considered Plaintiff's
continuing difficulty with securing employment and with
venturing out in public, even when she had traveled to
another state to visit a friend. AR 25.
the ALJ turned to Plaintiff's ability to maintain
concentration, persistence, and pace, and again found
Plaintiff to have moderate difficulties. The ALJ observed
that “[t]he evidence shows [Plaintiff] has some
problems with detailed or complex tasks, ” but
nonetheless “is able to sustain concentration and
attention long enough to perform simple, routine tasks in a
timely and efficient manner.” AR 25. She likewise
recounted that while Plaintiff “reportedly has problems
with her memory, ” she is still “able to manage
her appointments, medications, and other social events
without any help.” AR 25.
concluded her paragraph B discussion by finding that
Plaintiff “has experienced no episodes of
decompensation, which have been of extended duration.”
AR 18. This same finding also supported the ALJ's
conclusion that Plaintiff had failed to establish the
‘paragraph C' criteria.” AR 26. To that
point, the ALJ further explained that Plaintiff “does
not have a residual disease process with very marginal
adjustment and she is able to function outside a highly
supportive living arrangement.” AR 26.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 26-32. “After careful
consideration of the entire record, ” the ALJ
determined that Plaintiff has the residual functional
capacity to perform a range of light work, as defined in 20
C.F.R. § 404.1567(b), with the following limitations:
Plaintiff can lift and/or carry twenty pounds occasionally
and ten pounds frequently. [Plaintiff] can stand and/or walk
for six hours out of an eight-hour workday with normal
breaks. [Plaintiff] can sit for six hours out of an
eight-hour workday with normal breaks. [Plaintiff] can push
and/or pull twenty pounds occasionally and ten pounds
frequently. [Plaintiff] should alternate between sitting and
standing once every hour for ten minutes. [Plaintiff] can
occasionally reach overhead. [Plaintiff] can frequently climb
ramps and stairs, but never climb ladders, ropes, or
scaffolds. [Plaintiff] can frequently balance. She can
occasionally stoop, kneel, crouch, and crawl. She is limited
to hearing and understanding simple oral instructions. She is
limited to simple routine tasks. She could not perform at an
assembly-line production pace but could meet end of day
goals. [Plaintiff] can have occasional contact with
supervisors and co-workers. She can have incidental contact
with the public. She is limited to making simple work related
decisions in a workplace with few changes in the routine work
setting. [Plaintiff] should not be exposed to unprotected
heights, moving mechanical parts, or vibration, and should
not operate a motor vehicle.