United States District Court, D. New Mexico
GERALDINE MAEZ, on behalf of MIGUEL E. MAEZ, Jr., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiff Geraldine
Maez's (ex rel. Miguel E. Maez, Jr.) Motion to Reverse
and Remand for Rehearing with Supporting Memorandum (Doc.
19), which was fully briefed June 12, 2017. See
Docs. 23, 24, 25. The parties consented to my entering final
judgment in this case. Docs. 4, 8, 9. Having meticulously
reviewed the entire record and being fully advised in the
premises, I find that the Administrative Law Judge
(“ALJ”) erred in her application of the treating
physician rule to the opinion of Mr. Maez's treating
cardiologist, Dr. Luther B. Weathers. I therefore GRANT Ms.
Maez's motion and remand this case to the Commissioner
for further proceedings consistent with this opinion.
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). 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).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (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. A 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.” Id. While the Court
may not reweigh the evidence or try the issues de novo, its
examination of the record as a whole 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] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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); 20 C.F.R. §§
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
the claimant is not engaged in “substantial gainful
activity;” (2) the claimant 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) the
impairment(s) either meet or equal one of the
Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1260-61. If the claimant cannot show that his or
her impairment meets or equals a Listing but proves that he
or she is unable to perform his or her “past relevant
work, ” 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 residual functional capacity
(“RFC”), age, education, and work experience.
Maez was born in 1964, had a seventh-grade education,
worked in construction and in the oil fields as a roustabout.
AR 153, 169, 861-62, 869. Mr. Maez was laid off in December 2008.
AR 168. On April 6, 2009, Mr. Maez sustained an aortic
aneurysm, and underwent an aortic dissection repair. AR 236,
414, 556. Mr. Maez filed applications for supplemental
security income and disability insurance benefits on April
22, 2009, alleging disability since April 6, 2009 due to
heart problems, high blood pressure, and his recent heart
surgery. AR 133-41, 153-55, 168. The Social Security
Administration (“SSA”) denied his claims
initially on August 20, 2009. AR 85-88. The SSA denied his
claims on reconsideration on June 11, 2009. AR 90-96. Mr.
Maez requested a hearing before an ALJ. AR 97. On July 22,
2011, ALJ Ann Farris held a hearing. AR 52-78. The ALJ issued
her unfavorable decision on September 23, 2011. AR 35-51. Mr.
Maez requested that the Appeals Council review the ALJ's
unfavorable decision, and submitted additional medical
evidence. AR 30-33, 230-34. On February 21, 2013, the Appeals
Council denied the request for review. AR 7-13. Mr. Maez
appealed to this Court on April 24, 2013. Maez. v. Social
Security Admin., No. CV 13-381 WPL, Doc. 1 (D.N.M.). On
July 21, 2014, Magistrate Judge Lynch remanded this case, due
in part to the ALJ's failure to evaluate “all of
the evidence in the record to determine the extent to which
Dr. Weather's [July 20, 2011, AR 810] opinion that Maez
is unable to work is supported by that record, ” and
due to her failure to “describe how
Dr. Weather's opinion was inconsistent with the medical
evidence.” AR 896 (emphasis added).
March 11, 2013, while his first appeal was pending with this
Court, Mr. Maez filed a second claim for SSI. AR 836, 929. On
November 4, 2014, after receiving Judge Lynch's remand
order, the Appeals Council vacated the decision of the
Commissioner, remanded the case to the ALJ, and consolidated
Mr. Maez's claims. Id. On August 4, 2015, ALJ
Farris held a second hearing. AR 855-78. On September 26,
2015, Mr. Maez died from a ruptured abdominal aortic
aneurysm. AR 1020. His widow, Geraldine Maez, filed a notice
to become a substitute party and proceed with Mr. Maez's
claim. AR 1018. The ALJ issued her second decision, which was
partially favorable, on March 7, 2016. AR 832-54.
found that Mr. Maez met the insured status requirements of
the Social Security Act through March 31, 2010. AR 839. At
step one, the ALJ found that Mr. Maez had not engaged in
substantial, gainful activity after his alleged onset date of
April 6, 2009. Id. At step two, the ALJ found that
Mr. Maez had the following medically determinable
impairments: “hepatitis C infection, hypertension, and
status post aortic aneurysm and dissection repairs.”
Id. The ALJ found that his anxiety and depression
were nonsevere. Id. At step three, the ALJ found
that none of Mr. Maez's impairments, alone or in
combination, met or medically equaled a Listing. AR 839-40.
Because the ALJ found that none of the impairments met a
Listing, the ALJ assessed Mr. Maez's RFC. AR 840-44. The
ALJ found Mr. Maez had the RFC to perform sedentary work
except that “he could only occasionally climb stairs,
balance, and stoop; never kneel, crouch, or crawl; and should
avoid exposure to hazardous conditions including unprotected
heights and dangerous machinery, and to extremes of heat and
cold.” AR 840.
four, the ALJ concluded that Mr. Maez was unable to perform
his past relevant work as a roustabout. AR 844. At step five,
the ALJ found that, prior to September 5, 2014, Mr. Maez was
classified as a “younger individual, ” and could
perform unskilled, sedentary jobs that exist in significant
numbers in the national economy-such as motor polarizer,
vinyl assembler, and ink printer. AR 844-45. On September 5,
2014, Mr. Maez's age category changed to “an
individual closely approaching advanced age.” AR 844.
The ALJ applied Medical-Vocational Rule 201.10 to find him
disabled beginning on this date. AR 845-46. Because this
Court previously remanded Mr. Maez's case, Mr. Maez was
not required to seek Appeals Council review again, and the
ALJ's decision stands as the final decision of the
Commissioner. See 20 C.F.R. § 404.984(a). Mr.
Maez timely appealed to this Court on July 1, 2016. Doc.
Mr. Maez's Claims
Maez raises two arguments for reversing and remanding this
case: (1) the ALJ erred by failing to provide adequate
reasons for rejecting the medical opinions of treating
cardiologist Dr. Luther B. Weathers; 2) the ALJ deprived him
of his due process rights to question the vocational expert.
Doc. 19 at 2, 18-25. The Commissioner argues that the ALJ did
not err in rejecting Dr. Weathers' opinions because the
ALJ's decision is supported by substantial evidence, and
“the ALJ's RFC finding reasonably accounted for all
of [Mr. Maez's] credible limitations.” Doc. 23 at
Because I agree that the ALJ erred in her application of the
treating physician rule to Dr. Weathers' opinions, I
grant the motion to remand to give the ALJ an opportunity to
remedy this error. I do not reach Mr. Maez's other
alleged error, which “may be affected by the ALJ's
treatment of this case on remand.” Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
analyzing whether a treating physician's opinion is
entitled to controlling weight, the ALJ must perform a
two-step process. “The initial determination the ALJ
must make with respect to a treating physician's medical
opinion is whether it is conclusive, i.e., is to be accorded
‘controlling weight, ' on the matter to which it
relates.” Krauser v. Astrue, 638 F.3d 1324,
1330 (10th Cir. 2011) (quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir.2003)). In making this initial
determination, the ALJ must consider whether the opinion
“is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is consistent with the
other substantial evidence in the record.”
Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.
2007) (citing 20 C.F.R. § 404.1527(d)(2)); Watkins
v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If
the opinion meets both criteria, the ALJ must give the
treating physician's opinion controlling weight.
Id. To give anything less than controlling weight,
the ALJ must demonstrate with substantial evidence that the
opinion (1) is not “well-supported by medically
acceptable clinical and laboratory diagnostic techniques,
” or (2) is “inconsistent with other substantial
evidence” in the record. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). “Under the regulations,
the agency rulings, and our case law, an ALJ must ‘give
good reasons in [the] notice of determination or
decision' for the weight assigned to a treating
[source's] opinion.” Watkins, 350 F.3d at
1300 (quoting 20 C.F.R. § 404.1527(d)(2) and citing SSR
96-2p, 1996 WL 374188, at *5; Doyal v. Barnhart, 331
F.3d 758, 762 (10th Cir. 2003)).
ALJ does not assign a treating source's opinion
controlling weight, step two of the analysis requires the ALJ
to apply the six factors listed in the regulations to
determine whether to reject a treating source's opinion
altogether, or to assign it some lesser weight:
I. Examining relationship: more weight is
given to the opinion of a source who has examined the