United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for Rehearing, with Supporting Memorandum
[Doc. 20] (“Motion”), filed on August 21, 2017.
The Commissioner responded on October 3, 2017. [Doc. 22].
Plaintiff replied on November 8, 2017. [Doc. 23]. The parties
have consented to the undersigned's entering final
judgment in this case. [Doc. 12]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that Plaintiff fails to meet her
burden as the movant to show that the Administrative Law
Judge (“ALJ”) did not apply the correct legal
standards or that her decision was not supported by
substantial evidence. Accordingly, the Motion will be denied
and the Commissioner's final decision affirmed.
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). Courts
must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. The 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 a court
may not re-weigh 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
[Commissioner]'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) (citing
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
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
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant must
establish that 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), 1382c(a)(3)(A);
20 C.F.R. §§ 404.1505(a), 416.905(a).
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)
she is not engaged in “substantial gainful
activity”; and (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 (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. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1261. If she cannot show that her impairment
meets or equals a Listing, but she proves that she is unable
to perform her “past relevant work, ” the burden
of proof then shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering her residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
applied for a period of disability, disability insurance
benefits, and supplemental security income on November 19,
2010. Tr. 10. She alleged a disability-onset date of
September 30, 2009. Id. Her claims were denied
initially, on reconsideration, and by an ALJ. Id.
She appealed. The Appeals Council remanded the case for
rehearing and a new decision. Id. ALJ Donna Montano
held a second hearing on September 2, 2015, in Pasadena,
California. Id. Plaintiff and her attorney appeared
by videoconference from Santa Fe, New Mexico. Id.,
see Tr. 34-74. The ALJ heard testimony from
Plaintiff and an impartial vocational expert
(“VE”), Thomas A. Grenier. Tr. 10, 69-73.
issued her unfavorable decision on December 7, 2015. Tr. 26.
She found that Plaintiff met the insured status requirements
through September 30, 2013. Tr. 12. At step one she found
that Plaintiff had not engaged in substantial gainful
activity since the onset date of her alleged disability. Tr.
13. Because Plaintiff had not engaged in substantial gainful
activity for at least 12 months, the ALJ proceeded to step
two. Id. There she found that Plaintiff suffered
from the following severe impairments: “a history of
cardiomyopathy, anxiety and depression, alternatively
diagnosed as bipolar disorder.” Id. Further
she found that Plaintiff's hypertension,
temporomandibular joint disorder (“TMJ”), back
pain, pain disorder, and migraine headaches were not severe.
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 17-19. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 19-24. The ALJ found
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §§] 404.1567(b) and 416.967(b).
[Plaintiff] can lift and/or carry twenty pounds occasionally,
ten pounds frequently, stand and/or walk six hours and sit
six hours in an eight-hour workday. [Plaintiff] is limited to
the performance of simple repetitive tasks and working
primarily with things rather than people. [Plaintiff] is
unable to perform in-tandem tasks and she can have only
superficial contact with coworkers.
Tr. 19. At step four the ALJ found that Plaintiff was not
able to return to her past relevant work as a hotel clerk.
Tr. 24. Proceeding to step five, the ALJ considered
Plaintiff's RFC, age, education, and work experience. Tr.
25-26. She found that Plaintiff could perform work that
exists in significant numbers in the national economy and,
therefore, was not disabled. Id. Plaintiff requested
review from the Appeals Council a second time, but that
request was denied on November 7, 2016. Tr. 1. Plaintiff
timely filed the instant action on December 22, 2016. [Doc.
fails to show reversible error in the ALJ's assessment of
her RFC or in the ALJ's reliance on the VE's
testimony. Remand is not warranted.
Plaintiff fails to show reversible error in the evaluation of
challenges the ALJ's finding that her cardiomyopathy is
resolved and/or asymptomatic. [Doc. 20] at 8 (citing Tr. 19).
Plaintiff discusses portions of the medical record that show
that her cardiomyopathy, in fact, still intermittently causes
dyspnea with exertion and requires medication. Id.
at 6-8 (citing Tr. 719, 725). The Court is not persuaded that
the ALJ erred. Even if Plaintiff continues to suffer dyspnea
with exertion, the RFC accounts for it. The ALJ found that
Plaintiff's history of cardiomyopathy was severe, and the
RFC limited Plaintiff to light work, which is a limitation on
exertion. Plaintiff fails to show any reversible error.
Plaintiff fails to show reversible error in the evaluation of
Dr. Hassemer's records and his statement that Plaintiff
is “basically disabled.”
takes issue with the ALJ's finding that Plaintiff's
primary care physician, Donald Hassemer, M.D., did not
perform any mental status examinations (“MSEs”).
[Doc. 20] at 12-13. Plaintiff argues that Dr. Hassemer's
notes show that he did perform MSEs or their equivalent.
Id. Plaintiff fails to explain what difference this
makes, and the Court sees no difference. The RFC limits
Plaintiff to simple work and, further, restricts her contact
with others. Tr. 19. Plaintiff fails to show how the RFC is
inconsistent with Dr. Hassemer's records.
medical record dated January 24, 2011, Dr. Hassemer noted
that Plaintiff “is basically disabled from anxiety,
depression and chronic back pain.” Tr. 671. Plaintiff
argues that the ALJ's failure to “weigh” or
“discuss” Dr. Hassemer's statement was
“legal error.” [Doc. 23] at 3; [Doc. 20] at 13.
The Court does not agree.
ALJ, in fact, did discuss Dr. Hassemer's statements. The
ALJ stated that she had “careful[ly] consider[ed] the
entire record[, ]” Tr. 19, and the Court takes her at
her word, see Wall v. Astrue, 561 F.3d
1048, 1070 (10th Cir. 2009). Further, the ALJ explicitly
discussed Dr. Hassemer's statements that Plaintiff was
“disabled.” The ALJ wrote:
In January 2011, Dr. Hassemer noted that [Plaintiff] visited
Espa[ñ]ola Medical Group for routine follow-up for
severe anxiety and that he filled out her “disability
form” [Tr. 671]. Dr. Hassemer did not perform a mental
status examination at that time. It appears that the doctor
merely recorded [Plaintiff]'s subjective complaints [Tr.
671]. While Dr. Hassemer filled out forms for
[Plaintiff]'s “disability” to continue in
March 2011 [Tr. 670], I again find ...