United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
(Doc. 17) filed on May 29, 2017. Pursuant to 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to me serving as the presiding judge and entering
final judgment. See Docs. 6, 8, 9. Having
considered the record, submissions of counsel, and relevant
law, the Court finds Plaintiff's motion is well-taken and
will be granted in part.
Plaintiff's second appeal. On July 29, 2011, Mr. Steven
Gallegos (Plaintiff) protectively filed applications with the
Social Security Administration for a period of disability and
disability insurance benefits under Title II of the Social
Security Act (SSA), and for Supplemental Security Income
under Title XVI of the SSA. Administrative
Record (AR) at 29, 94-117. Plaintiff alleged a
disability onset date of March 1, 2010. AR at 94, 505.
Because Plaintiff's earning record showed that he had
“sufficient quarters of coverage to remain insured
through September 30, 2010[, ]” Plaintiff was required
to “establish disability on or before that date in
order to be entitled to a period of disability and disability
insurance benefits.” See AR at 29.
Determination Services (DDS) determined that Plaintiff was
not disabled both initially (AR at 150-57) and on
reconsideration (AR at 120-47). Plaintiff requested review,
and, after holding a de novo hearing (AR at 48-93),
Administrative Law Judge (ALJ) Barry O'Melinn issued an
unfavorable decision on June 23, 2014 (AR at 26-47). The
Appeals Council denied Plaintiff's subsequent request for
review, making the ALJ's decision the final decision of
the Commissioner. See Doyal v. Barnhart, 331 F.3d
758, 759 (10th Cir. 2003).
appealed ALJ O'Melinn's decision to this Court.
See Gallegos v. Colvin, CV 15-0148 WPL, Compl.
(D.N.M. Feb. 20, 2015). The Honorable William P. Lynch issued
a Memorandum Opinion and Order reversing ALJ
O'Melinn's decision on March 7, 2016. See
id., Mem. Op. & Order (D.N.M. Mar. 7, 2016).
Thereafter, the Appeals Council vacated the decision of ALJ
O'Melinn and remanded the case “for further
proceedings consistent with the order of the court.” AR
11, 2016, ALJ Raul C. Pardo held a second de novo
hearing. AR at 531-93. ALJ Pardo then issued a partially
favorable decision on June 30, 2016, finding that Plaintiff
was not disabled before October 31, 2011, but was disabled
thereafter. AR at 501-30. There is no evidence that Plaintiff
asked the Appeals Council to review ALJ Pardo's decision,
so the ALJ's decision became the final decision of the
Commissioner 60 days after June 30, 2016. See AR at
502. Plaintiff then filed a suit in this Court seeking remand
for a rehearing or an immediate award of benefits. Doc.
Applicable Law and the ALJ's Findings
claimant seeking disability benefits must establish that he
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); see also 20 C.F.R. § 404.1505(a).
The Commissioner must use a sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see also Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
claimant has the burden at the first four steps of the
process to show: (1) he is not engaged in “substantial
gainful activity”; (2) he 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) his impairment(s) meet or equal
one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt.
404; or (4) pursuant to the assessment of the claimant's
residual functional capacity (RFC), he is unable to perform
his past relevant work. 20 C.F.R §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)
(citations omitted). “RFC is a multidimensional
description of the work-related abilities [a claimant]
retain[s] in spite of [his] medical impairments.”
Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660,
at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404,
Subpt. P, App. 1 § 12.00(B); 20 C.F.R. §
404.1545(a)(1)). If the claimant meets “the burden of
establishing a prima facie case of disability[, ] . . . the
burden of proof shifts to the Commissioner at step five to
show that” Plaintiff retains sufficient RFC “to
perform work in the national economy, given his age,
education, and work experience.” Grogan, 399
F.3d at 1261 (citing Williams v. Bowen, 844 F.2d
748, 751 & n.2 (10th Cir. 1988) (internal citation
omitted)); see also 20 C.F.R. §§
One of the process,  ALJ Pardo found that Plaintiff “has
not engaged in substantial gainful activity since the alleged
onset date.” AR at 508 (citing 20 C.F.R. §§
404.1571-1576, 416.971-976). At Step Two, the ALJ concluded
that “[s]ince the alleged onset date of disability,
March 1, 2010, Plaintiff has had the following severe
impairments: Diabetes mellitus with peripheral neuropathy,
anxiety, borderline intellectual functioning, and obesity . .
. .” AR at 508. “Beginning on the established
onset date of disability, October 31, 2011, ” the ALJ
found Plaintiff had all of the above severe impairments, as
well as mild depression. AR at 508 (citing 20 C.F.R.
§§ 404.1520(c), 416.920(c)).
Three, the ALJ found that since his “alleged onset date
of disability, March 1, 2010, ” Plaintiff “has
not had an impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 509 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926). In making his determination, ALJ Pardo considered
listings 11.14 (Peripheral Neuropathies), 12.04 (affective
disorders), 12.05 (Intellectual Disability), 12.06 (anxiety
related disorders), listings in 9.00 (Endocrine systems), and
listings in 11.00 (Neurological System). AR at 509.
Four, the ALJ found that while Plaintiff's
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms[, ]” the ALJ did
not find Plaintiff's “statements concerning the
intensity, persistence and limiting effects of these symptoms
. . . fully supported prior to October 31, 2011 . . .
.” AR at 512. The ALJ considered the evidence of
record, including records from Plaintiff's primary care
physician, Melanie Ukanwa, M.D., emergency room and hospital
records, consultative examinations with physician Laura
Hammons, M.D. (one in 2012, a second in 2013), psychologist
David LaCourt, Ph.D., and psychiatrist Paul Hughson, M.D.,
records from vascular surgeon Steve Henao, M.D., a
third-party function report from Plaintiff's wife, a
third-party statement from Plaintiff's daughter, and
testimony from the Plaintiff. AR at 512-21.
Pardo found that “[s]ince March 1, 2010, [Plaintiff]
has been unable to perform any past relevant work.” AR
at 521 (citing 20 C.F.R. §§ 404.1565, 416.965).
Ultimately, the ALJ found that prior to October 31, 2011, the
date [Plaintiff] became disabled, [Plaintiff] had the [RFC]
to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except he can occasionally lift ten pounds and
frequently lift less than ten pounds. He can occasionally
carry ten pounds and frequently carry less than ten pounds.
Sit: Six hours; Stand: Two hours; Walk: Two hours. Push/pull:
As much as can lift/carry. No overhead reaching with the
right upper extremity. Frequent handling with right upper
extremity. No lifting with right upper extremity higher than
chest level. Occasional climbing ramps and stairs. No
climbing ladders, ropes, ...