United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
FASHING UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on plaintiff Wilson Chee's
Motion to Reverse and Remand for a Rehearing with Supporting
Memorandum, filed November 18, 2016, and fully briefed on
March 6, 2017. Docs. 18, 22, 23, 26. The parties have
consented to my entering a final judgment in this case. Doc.
33. Having meticulously reviewed the entire record and being
fully advised in the premises, the Court finds that the
administrative law judge's (“ALJ”) decision
is supported by substantial evidence, and that she applied
the correct legal standards. I therefore DENY Mr. Chee's
motion and dismiss this case.
Standard of Review
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).
“The 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 and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
evidence is such relevant evidence as 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 or if there is a mere scintilla of
evidence supporting it.” Id. While the Court
may not reweigh 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
ALJ'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)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
the claimant is not engaged in “substantial gainful
activity;” (2) the claimant 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) the
impairment(s) either meet or equal one of the
Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1261. If the claimant cannot show that his or her
impairment meets or equals a Listing but proves that he or
she is unable to perform his or her “past relevant
work, ” the burden then 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
residual functional capacity (“RFC”), age,
education, and work experience. Id.
Background and Procedural History
Chee is a 34-year-old man who attended school through the
11th grade and later obtained his GED. AR 110, 144, 411,
423. Mr. Chee suffered a traumatic head injury as a child. AR
283, 306, 332, 659, 663, 695, 698. He testified that he is
unable to live alone, and during the pendency of this case he
has resided with two different girlfriends and his sister. AR
36, 110, 415, 420, 424. Mr. Chee previously has worked at
various jobs for short periods of time, including work as an
account member at a casino, a cashier, a roustabout, a
stocker, a janitor, and a utility clerk. AR 32-34, 145, 150,
February 12, 2010, Mr. Chee applied for Supplemental Security
Income (SSI) and for Disability Insurance Benefits (DIB),
alleging disability since February 9, 2010. AR 110-16. Mr.
Chee alleged he was disabled due to a head injury,
“left side problems, ” depression, problems with
memory, and anger issues. AR 143. Mr. Chee's application
was denied initially and upon reconsideration, and Mr. Chee
requested a hearing before an ALJ. AR 48-53, 54-63, 65-73,
76-77. ALJ Myriam Fernandez Rice held a hearing on March 13,
2012. AR 26-47. The ALJ issued her unfavorable decision a
month later. AR 9-25. The Appeals Council denied Mr.
Chee's request for review on July 26, 2013, and Mr. Chee
appealed the ALJ's decision to the United States District
Court for the District of New Mexico. AR 1-6, 439-42. Upon
the agreement of the parties, the District Court remanded the
case to the Commissioner for further proceedings. AR 443-44.
The Appeals Council remanded the case to the ALJ. AR 445-49.
November 12, 2015, ALJ Fernandez Rice conducted a second
hearing. AR 408-38. The ALJ issued her second unfavorable
decision on January 5, 2016. AR 386-407. At step one, the ALJ
found that Mr. Chee had “not engaged in substantial
gainful activity since February 9, 2010, the alleged onset
date.” AR 392. At step two, the ALJ found that Mr. Chee
had the severe impairments of depression, personality
disorder secondary to traumatic brain injury, seizures,
obesity, and a traumatic brain injury in 1996. Id.
The ALJ also found that that Mr. Chee had nonsevere
impairments, including left leg weakness and diabetes
mellitus. Id. At step three, the ALJ found that none
of Mr. Chee's impairments-alone or in combination-met or
medically equaled a Listing. AR 393. Because none of the
impairments met a Listing, the ALJ moved to step four.
[C]laimaint has the residual functional capacity to perform
work at all exertional levels except he cannot climb ladders,
ropes or scaffolds. The claimant must also avoid even
moderate use of moving machinery, and exposure to unprotected
heights. He can maintain, understand, and remember simple
work instructions with only occasional changes in work
setting. He should have only occasional contact with the
public and co-workers.
AR 394-95. The ALJ noted that Mr. Chee had no past relevant
and, therefore, proceeded to step five. AR 399. Based on the
testimony of a vocational expert, at step five the ALJ
determined that there were jobs that exist in significant
numbers in the national economy that Mr. Chee could perform,
including hand packager, hand polisher, and hand
cleaner/polisher. AR 399-400. Accordingly, the ALJ found that
Mr. Chee is not disabled. AR 400.
Chee did not file exceptions to the ALJ's decision, and
the Appeals Council did not assume jurisdiction, making the
ALJ's decision the final decision of the Commissioner.
Doc. 18 at 4; Doc. 22 at 2; see also 20 C.F.R.
§§ 404.984(a), 416.1484(a) (“when a case is
remanded by a Federal court for further consideration, the
decision of the administrative law judge will become the
final decision of the Commissioner after remand on your case
unless the Appeals Council assumes jurisdiction of the
case”). Mr. Chee timely filed his appeal to this Court
on April 29, 2016. Doc. 1; see also 20 C.F.R.
§§ 404.984(c), (d), 416.1484(c), (d) (ALJ's
decision becomes final if Appeals Council does not assume
jurisdiction within 60 days); 42 U.S.C. § 405(g)
(claimant may obtain judicial review of any final decision of
the Commissioner by commencing civil action within 60 days
after the mailing of notice of the final decision).
Mr. Chee's Claims
Chee raises three arguments on appeal. He contends that the
ALJ erred by: 1) improperly rejecting the medical opinion of
his treating physician, David Schultz, M.D.; 2) improperly
rejecting the findings of examining psychologist John
Koewler, Ph.D.; and 3) failing to incorporate portions of the
medical opinion of State agency consultant Ralph Robinowitz,
Ph.D., into Mr. Chee's RFC without explanation, contrary
to Social Security Rulings (“SSR”) 96-6p and
96-8p. I find that the ALJ properly weighed each opinion, and
that her explanations were supported by substantial evidence.