United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Social Security
Administrative Record (Doc. 16) filed December 15, 2016, in
support of Plaintiff Anna Marie Salazar's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claim for Title II disability
insurance benefits and Title XVI supplemental security income
benefits. On February 7, 2017, Plaintiff filed her Motion to
Remand or Reverse (“Motion”). (Doc. 21.) The
Commissioner filed a Response in opposition on May 17, 2017
(Doc. 27), and Plaintiff filed a Reply on June 1, 2017. (Doc.
30.) The Court has jurisdiction to review the
Commissioner's final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed
the entire record and the applicable law and being fully
advised in the premises, the Court finds the Motion is well
taken and is GRANTED.
Background and Procedural Record
Anna Marie Salazar (“Ms. Salazar”) alleges that
she became disabled on October 1, 2009, at the age of
thirty-one because of panic/anxiety attacks, post-traumatic
stress disorder, major depression, cyst on left wrist, hip
and back pain, insomnia, and fibromyalgia. (Tr. 242-45,
288.) Ms. Salazar completed the ninth grade,
and worked as a hotel night auditor, health department
receptionist, retail sales representative, and waitress. (Tr.
March 23, 2011, Ms. Salazar protectively filed an application
for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
(Tr. 162, 242-45.) Ms. Salazar's application was
initially denied on August 11, 2011. (Tr. 162, 221-24.) It
was denied again at reconsideration on July 30, 2012. (Tr.
150, 212-14.) On December 20, 2012, Ms. Salazar requested a
hearing before an Administrative Law Judge
(“ALJ”). (Tr. 209.) The ALJ conducted a hearing
on January 10, 2014. (Tr. 577-605.) Ms. Salazar appeared in
person at the hearing with attorney Helen Lopez.
(Id.) The ALJ took testimony from Ms. Salazar (Tr.
580-99), and an impartial vocational expert
(“VE”), Judith Beard. (Tr. 599-604.) On March 14,
2014, the ALJ issued an unfavorable decision. (Tr. 136-49.)
March 4, 2016, the Appeals Council issued its decision
denying Ms. Salazar's request for review and upholding
the ALJ's final decision. (Tr. 3-6.) On April 7, 2016,
Ms. Salazar timely filed a Complaint seeking judicial review
of the Commissioner's final decision. (Doc. 1.)
Standard of Review
review the Commissioner's decision to determine whether
the factual findings are supported by substantial evidence in
the record and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Langley v. Barnhart, 373 F.3d 1116, 1118
(10th Cir. 2004). A decision is based on
substantial evidence where it is supported by “relevant
evidence . . . 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[,
]” Langley, 373 F.3d at 1118, or
“constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). The Commissioner's decision must “provide
this court with a sufficient basis to determine that
appropriate legal principles have been followed.”
Jensen v. Barnhart, 436 F.3d 1163, 1165
(10thCir. 2005). Therefore, although an ALJ is not
required to discuss every piece of evidence, “the
record must demonstrate that the ALJ considered all of the
evidence, ” and “the [ALJ's] reasons for
finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
considering an application for disability insurance benefits,
the Commissioner uses a five-step sequential evaluation
process. 20 C.F.R. §§ 404.1520, 416.920; Bowen
v. Yuckert, 482 U.S. 137, 140 (1987). The claimant bears
the burden of establishing a prima facie case of disability
at steps one through four. 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). If the claimant successfully meets that burden, the
burden of proof 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 RFC, age,
education, and work experience. 20 C.F.R. §§
404.1520(a)(v), 416.920(a)(v); Grogan, 399 F.3d at
made his decision that Ms. Salazar was not disabled at step
five of the sequential evaluation. He found that Ms. Salazar
had the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except
it should involve no more than incidental public contact; she
can perform detailed but not complex work instructions; and
she can perform no more than frequent reaching, handling, or
(Tr. 143.) Based on the RFC and the testimony of the VE, the
ALJ concluded that Ms. Salazar was incapable of performing
her past relevant work, but that there were jobs that existed
in significant numbers in the national economy that the
claimant could perform. (Tr. 148.)
Salazar asserts several arguments in support of her Motion.
Ms. Salazar argues that (1) the ALJ erred at step three by
failing to properly consider treating psychiatrist Margaret
Conolly, M.D.'s medical source statement regarding Ms.
Salazar's ability to do work-related mental activities;
(2) the ALJ erred at step five by failing to state the
correct burden of proof; (3) the ALJ failed to determine
whether the VE's testimony was consistent with the DOT;
(4) the Appeals Council erred in rejecting new additional
evidence; (5) the ALJ erred in rejecting treating physician
opinions; (6) the ALJ's RFC and credibility assessments
were contrary to the legal standards and not supported by
substantial evidence; and (7) the ALJ failed to develop the
record by recontacting Ms. Salazar's treating physicians,
if necessary. (Doc. 23 at 10-28.) The Court finds grounds for
remand as discussed below.
Opinion Evidence and RFC Assessment
Salazar argues that the ALJ erred in weighing the opinion
evidence. In particular, she asserts that the ALJ improperly
weighed her treating physician opinions, and improperly
accorded great weight to the State Agency medical consultant
opinions when their opinions were rendered well before her
treating physician opinions. (Doc. 23 at 19-25.) She further
asserts that the ALJ's RFC assessment is not supported by
substantial evidence because it was based on the outdated
State Agency opinions and ignored the contemporaneous
treating physician opinions that demonstrated greater
functional limitations. (Id. at 25-27.) The Court
Martin Trujillo, M.D.
August 8, 2011, Ms. Salazar presented to examining State
Agency medical consultant Martin Trujillo, M.D., for a
disability determination examination. (Tr. 486-88.) Ms.
Salazar reported a history of significant posterior neck,
shoulder, and upper back pain, along with headaches. (Tr.
486). She also reported a history of depression, anxiety, and
posttraumatic stress disorder. (Id.) She told Dr.
Trujillo she was diagnosed with fibromyalgia approximately
five months earlier by her primary care physician, but was
unaware of trigger point pain or laboratory values done to
rule out rheumatological or autoimmune disorders.
(Id.) Dr. Trujillo's physical exam was
essentially unremarkable, and he noted there was “no
tenderness to muscle palpation or specific trigger point
pain.” (Tr. 487.) Dr. Trujillo's impression
included, inter alia, depression/anxiety, PTSD,
possible bipolar disorder, and possible fibromyalgia.
(Id.) Dr. Trujillo discussed that Ms. Salazar's
primary problem was her psychiatric status and its
relationship with her somatic complaints. (Tr. 488.) He
recommended, inter alia, a psychiatric and
rheumatological evaluation. (Id.)
determined that Dr. Trujillo's physical exam supported
his RFC assessment.(Tr. 147.)