United States District Court, D. New Mexico
LORYNN D. SERNA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Remand and Supporting Brief” (“Motion”)
filed on March 13, 2017. ECF No. 20. The Commissioner
responded on May 12, 2017. ECF No. 22. Plaintiff replied on
May 26, 2017. ECF No. 23. Having meticulously reviewed the
briefing and the entire record, the Court concludes 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 reasons
articulated below, the Court will GRANT
was born in New Mexico on October 18, 1968. Administrative R.
(“AR”) 51, 444. Plaintiff joined the U.S. Army in
1988, where she served for four years as a mechanic and
deployed overseas during Operation Desert Storm. AR 54.
Following her honorable discharge in 1992, she received an
associate degree from Northern New Mexico Community College
and worked from 1994 to her alleged onset date as an x-ray
technologist. AR 51-52.
filed an application for Disability Insurance Benefits
(“DIB”) on March 1, 2012. AR 186-93. Plaintiff
claimed disability beginning on January 31, 2012, based on
fibromyalgia, degenerative disc disease, post-traumatic
stress disorder (“PTSD”), Crohn's disease,
migraines, gynecological problems, multiple sclerosis,
dyshidrotic eczema from Gulf War syndrome, fingernails
falling off from Gulf War syndrome, and irritable bowel
syndrome. AR 87-88.
Social Security Administration (“SSA”) denied
Plaintiff's application initially on September 10, 2012
[AR 100], and upon reconsideration on May 20, 2013. AR 112.
At her request, Plaintiff received a de novo hearing
before ALJ Michelle Lindsay on January 12, 2015, at which
Plaintiff, her attorney, and vocational expert
(“VE”) Thomas Greiner appeared. AR 46-86. On May
7, 2015, the ALJ issued her decision, finding that Plaintiff
was not disabled within the meaning of the Social Security
Act (“the Act”). AR 40. Plaintiff appealed to the
SSA Appeals Council, but it declined review on September 17,
2016. AR 1-4. 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 October 26, 2016.
ECF No. 1.
advances numerous grounds for relief. First, she argues that
the ALJ's step three analysis is both fraught with legal
error and bereft of evidentiary support. Pl.'s Mot. 5-9,
ECF No. 20. Second, Plaintiff contends the ALJ committed
legal error by misstating the burden of proof at step five.
Id. at 9-10. Third, she claims the ALJ failed to
follow Social Security Ruling (“SSR”) 00-4p and
relevant case law by neglecting to ask the VE whether his
testimony was consistent with the Dictionary of Occupational
Titles (“DOT”). Id. at 10-11. Fourth,
Plaintiff alleges multiple deficiencies in the ALJ's
calculation of Plaintiff's residual functional capacity.
Id. at 11-14. Fifth, Plaintiff argues that the ALJ
erroneously evaluated medical evidence from: (1) the U.S.
Department of Veterans Affairs (“VA”) generally;
(2) VA clinical psychologist Maureen M. McAndrews, Ph.D; and
(3) consultative psychologist Robert Krueger, Ph.D.
Id. at 14-19. Sixth, Plaintiff challenges the
ALJ's criticism of her VA disability rating. Id.
at 19-21. Seventh, she contends that the ALJ's adverse
credibility finding is without evidentiary basis.
Id. at 21-24. Lastly, she argues that the ALJ
incorrectly applied governing standards in evaluating the
statements of Plaintiff's husband and daughter.
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. See Bowen v. Yuckert, 482 U.S. 137, 146
(1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th
claimant cannot return to her past work, the burden shifts to
the Commissioner at the fifth step to show 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 detail).
THE ALJ'S DECISION
issued her decision on May 7, 2015. AR 40. At step one, she
found that Plaintiff had not engaged in substantial gainful
activity since the alleged disability onset date of January
31, 2012. AR 32. At step two, the ALJ found Plaintiff to
suffer from numerous severe impairments, including: (1)
fibromyalgia; (2) mild degenerative disc disease of the
lumbar spine; (3) Crohn's disease; (4) migraines; (5)
depressive disorder; and (6) PTSD. AR 32. The ALJ declined,
however, to find that Plaintiff suffered from multiple
sclerosis (“MS”). Rather, she opined that
“there is no evidence of [Plaintiff] ever having a
diagnosis of MS, ” and therefore “a lack of
objective evidence to substantiate the existence of a
medically determinable impairment of multiple
sclerosis.” AR 32-33.
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 33-34. 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), 12.06
(anxiety-related disorders), or 12.09 (substance addiction
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 34. She then explained her
reasoning regarding paragraph B's four subparts,
beginning with activities of daily living. There, the ALJ
found Plaintiff to have only a mild restriction. The ALJ
observed that Plaintiff was able to do laundry, wash dishes,
engage in personal care, make simple meals, and read. AR 33.
She also noted that Plaintiff could lift ten pounds, sit for
one half hour, stand for twenty minutes, and walk for ten. AR
33. Additionally, the ALJ looked to Plaintiff's VA
records, which indicated Plaintiff “was able to perform
routine activities of daily living.” AR 33 (citing AR
social functioning, the ALJ found Plaintiff to suffer
moderate difficulties. The ALJ supported her finding by
citing to Plaintiff's self-reported “Function
Report - Adult.” AR 33; see AR 247-54.
Therein, Plaintiff reported that she occasionally shopped
with her husband and socialized with family members on the
phone. AR 33.
also found Plaintiff to suffer moderate difficulties with
concentration, persistence, and pace. She relied again on
Plaintiff's self-reporting to observe that Plaintiff
could handle her financial affairs and watch television all
day, but that she required reminders to attend doctor
appointments, and that she followed spoken instructions
better than written instructions. AR 34.
concluded her paragraph B discussion by finding that
Plaintiff “has experienced no episodes of
decompensation, which have been of extended duration.”
AR 34. This same finding also supported the ALJ's
conclusion that Plaintiff had failed to establish the
‘paragraph C' criteria.” AR 34. The ALJ
explained that there was “no evidence” of a
“residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental
demands or change in environment would be predicted to cause
[Plaintiff] to decompensate” or one or more years of a
history of an “inability to function outside a highly
supportive living arrangement.” AR 34. Furthermore, she
reasoned that Plaintiff failed to establish a “complete
inability to function independently outside the area of [her]
home, ” and as a consequence, she concluded that
Plaintiff had failed to qualify under the paragraph C
criteria of either Listing 12.04 or 12.06. AR 34.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 34-39. “After careful
consideration of the entire record, ” the ALJ
determined that Plaintiff had 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:
the ability to lift and carry 20 pounds occasionally and 10
pounds frequently; stand and/or walk for six hours out of an
eight-hour workday with regular breaks; sit for six hours out
of an eight-hour workday with regular breaks; and push and
pull 20 pounds occasionally and 10 pounds frequently. She is
further limited in that she can only occasionally climb
stairs and ramps, balance, stoop, crouch, kneel, and crawl;
can never climb ladders, ropes[, ] or scaffolds; and must
avoid more than occasional exposure to extreme heat or cold.
She is also limited to understanding, remembering, and
carrying out simple instructions; is able to maintain
attention and concentration to perform only simple tasks for
two hours at a time without requiring redirection to task;
can have only occasional contact with the general public; can
have only superficial ...