United States District Court, D. New Mexico
DIANA L. BROOKBANK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Diana L.
Brookbank's Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum (the
“Motion”), (Doc. 16), filed August 21, 2017;
Defendant Commissioner Nancy A. Berryhill's Brief in
Response to Plaintiff's Motion to Reverse and Remand the
Agency's Administrative Decision (the
“Response”), (Doc. 18), filed October 19, 2017;
and Plaintiff's Reply in Support of Plaintiff's
Motion to Reverse and Remand for a Rehearing with Supportive
Memorandum, (Doc. 19), filed November 2, 2017.
March 25, 2013, Ms. Brookbank applied for disability
insurance benefits and supplemental security income claiming
disability beginning August 8, 2008. (Administrative Record
“AR” 208-18). In both applications, Ms. Brookbank
claimed post-traumatic stress disorder, depression, anxiety,
and obsessive compulsive disorder limited her ability to
work. (AR 76, 89). Ms. Brookbank's applications were
denied initially on August 27, 2013, (AR 76-101), and on
reconsideration on October 17, 2013, (AR 104-31). Ms.
Brookbank requested a hearing before an Administrate Law
Judge (“ALJ”), (AR 149-51), which was granted,
and a hearing was held on September 25, 2015 before ALJ
Lillian Richter, (AR 37-75). Ms. Brookbank represented
herself and testified at the hearing, and Leslie J. White, an
impartial vocational expert (“VE”), also
testified. (AR 33-34).
November 9, 2015, ALJ Richter issued her decision finding Ms.
Brookbank not disabled at any time from her alleged onset
date through the date of the decision. (AR 32). Ms. Brookbank
requested review by the Appeals Council, (AR 16), which was
denied, (AR 5-8), making the ALJ's decision the
Commissioner's final decision for purposes of this
Brookbank has appealed the ALJ's decision, arguing the
ALJ committed reversible error by failing to resolve a
conflict between the VE's testimony and the Dictionary of
Occupational Titles (“DOT”). (Doc. 16 at 1). The
Court has reviewed the Motion, the Response, the Reply, and
the relevant law. Additionally, the Court has meticulously
reviewed the administrative record. Because the ALJ did not
err in failing to resolve any conflict, the Court finds Ms.
Brookbank's application should be
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); Hamilton v. Sec'y of Health & Human
Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). 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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). The ALJ's failure to
apply the correct legal standards or demonstrate that he has
done so is grounds for reversal. Winfrey v. Chater,
92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v.
Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court
should meticulously review the entire record but should
neither re-weigh the evidence nor substitute its judgment for
the Commissioner's. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court's review is
limited to the Commissioner's final decision, 42 U.S.C.
§ 405(g), which is generally the ALJ's decision,
rather than the Appeals Council's denial of review.
O'Dell v. Shalala, 44 F.3d 855, 858 (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; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
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
ALJ]'s 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. 2004)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income, a claimant
establishes a disability when 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) (2015), 42
U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §
416.905(a). In order to determine whether a claimant is
disabled, the Commissioner follows a five-step sequential
evaluation process (“SEP”). Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (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 either (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. §
416.920(a)(4)(i-iv); see Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the
claimant cannot engage in past relevant work, the ALJ will
proceed to step five of the evaluation process. At step five
the Commissioner must show the claimant is able to perform
other work in the national economy, considering the
claimant's RFC, age, education, and work experience.
Grogan, 399 F.3d at 1261.
Brookbank applied for supplemental security income and
disability insurance benefits claiming post-traumatic stress
disorder, anxiety, depression, and obsessive compulsive
disorder limited her ability her work. (AR 76, 89). At step
one, the ALJ found Ms. Brookbank had not engaged in
substantial gainful activity since her alleged onset date.
(AR 23). At step two, the ALJ determined Ms. Brookbank has
three severe impairments: an anxiety related disorder, an
affective disorder, and a substance dependence disorder.
Id. At step three, the ALJ found Ms. Brookbank's
impairments do not, either singly or in combination, meet or
medically equal the severity of a Listed impairment. (AR 25).
four, the ALJ found that Ms. Brookbank has the residual
functional capacity to perform a full range of work at all
exertional levels, but with the following nonexertional
limitations: she is limited to performing simple, routine,
and repetitive tasks; she is unable to work in close
proximity with others without becoming distracted from work
tasks; she cannot work at production pace but can meet
end-of-day goals; she can interact frequently with
supervisors and the public, but can only interact
occasionally with coworkers; and she can tolerate few changes
in the ...