United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse or Remand the Administrative Decision” [ECF
No. 18] and “Memorandum Brief in Support of
Plaintiff's Motion to Reverse or Remand the
Administrative Decision” (collectively,
“Motion”),  filed on February 22, 2017. ECF No. 19.
The Commissioner responded on April 28, 2017. ECF No. 21.
Plaintiff replied on May 10, 2017. ECF No. 22. 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 16, 1961, in Santa Fe, New Mexico.
Administrative R. (“AR”) 233-34. He attended
school until the tenth grade but did not receive a diploma.
AR 271. Plaintiff later obtained a General Educational
Development (“GED”) certificate while he was
incarcerated. AR 85. Plaintiff's work history included
employment as a prep cook, handyman, and auto mechanic. AR
filed an application for Supplemental Security Income
(“SSI”) on November 27, 2012, alleging disability
beginning on July 30, 2012, due to paranoid schizophrenia,
bipolar disorder, anxiety disorder, and physical limitations
stemming from back and right shoulder injuries. AR 238. The
Social Security Administration (“SSA”) denied
Plaintiff's application initially on March 19, 2013 [AR
138], and upon reconsideration on July 19, 2013. AR 153. At
his request, Plaintiff received a de novo hearing
before ALJ John W. Rolfe on October 2, 2014, at which
Plaintiff, his attorney, and a vocational expert
(“VE”) appeared. AR 81-119. On January 16, 2015,
the ALJ issued his decision, finding that Plaintiff was not
disabled within the meaning of the Social Security Act
(“the Act”). AR 60-73. Plaintiff appealed to the
SSA Appeals Council (“Appeals Council”), but it
declined review on June 27, 2016. AR 1-4. As a consequence,
the ALJ's decision became the final decision of the
Commissioner. 20 C.F.R. § 422.210(a) (2016).
timely filed his appeal in this Court on August 12, 2016. ECF
advances five grounds for relief. First, he argues that the
ALJ erroneously evaluated the medical evidence and misapplied
relevant governing regulations. Pl.'s Mot. 6-9, ECF No.
19. Second, he contends the ALJ improperly assessed his
limitations under the “paragraph B” criteria of
the mental Listings of Impairments (“Listings”).
Id. at 9-14. Third, Plaintiff alleges that the ALJ
impermissibly failed to incorporate certain limitations into
his residual functional capacity (“RFC”).
Id. at 14-19. Fourth, Plaintiff claims that the
ALJ's adverse credibility finding is fraught with legal
error. Id. at 19-21. Lastly, he challenges the
ALJ's step five findings. Id. at 20-24.
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.”)
factual 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
reviews “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) (2016). 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'x 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 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). The claimant 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.
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 his decision on January 16, 2015. AR 57. At step one,
he found that Plaintiff had not engaged in substantial
gainful activity since the protective filing
of November 27, 2012. AR 62. At step two, the ALJ found that
Plaintiff suffered from the following severe impairments: (1)
obesity; (2) diabetes mellitus; (3) status post right
shoulder injury; (4) schizophrenia/psychotic disorder not
otherwise specified (in remission); and (5) anxiety disorder
(not otherwise specified). AR 62.
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 63-65. The ALJ began with
Plaintiff's physical impairments, and found that
Plaintiff did not meet or medical equal Listing 1.02 for
major dysfunction of a joint. To meet that Listing, Plaintiff
would have had to establish that his back pain or shoulder
pain resulted in “an inability to ambulate
effectively” or the “inability to perform fine
and gross movements effectively.” AR 63. The ALJ
addressed Plaintiff's back pain by noting that in his
“Function Report - Adult, ” Plaintiff
self-reported that “he does not require assistive
devices to ambulate.” AR 63 (citing AR 267). He further
observed that during a consultative examination, Plaintiff
“was able to get on and off the exam table without
difficulty.” AR 63 (citing AR 564). As to
Plaintiff's shoulder injury, the ALJ recounted that
Plaintiff does not “allege that he is unable to perform
fine and gross movements effectively.” AR 63.
Additionally, the ALJ took account of Plaintiff's
statement “that he has spent time working on cars,
which requires fine and gross movement of the upper
extremity.” AR 63. Thus, because Plaintiff could
ambulate independently and effectively perform relevant
movements with his affected upper extremity, the ALJ found he
did not meet or medically equal Listing 1.02.
the ALJ considered Plaintiff's diabetes mellitus under
Listing 9.00, which directed the ALJ to assess
Plaintiff's condition under applicable listings for other
body systems.AR 63. The ALJ framed the discussion by
stating, “[d]iabetes is not a listed impairment,
however, its effects on other body systems, if sufficiently
severe, may meet [L]istings for those body systems.” AR
63. Upon review, the ALJ did not find the required severity
of symptoms in any of Plaintiff's other body systems, and
therefore, he found that Plaintiff's diabetes mellitus
did not meet or medically equal Listing 9.00. AR 63.
then turned to Plaintiff's obesity, which he pointed out
“is not a listed impairment, ” but “may be
found to equal a [L]isting, or alternatively, may increase
the severity of coexisting or related impairments to the
extent that the combination of impairments meets the
requirements of a [L]isting.” AR 63 (internal citation
and quotation marks omitted). He noted that “the record
does contain references to [Plaintiff's] obesity, ”
but also found that the record indicated Plaintiff “has
been able to exercise frequently” and engage in
activities “like walking around town with his
wife.” AR 63. As a consequence, the ALJ found ...