United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Carol Ann
Scrivner's Motion to Reverse and Remand for
Rehearing, With Supporting Memorandum (the
“Motion”), (Doc. 23), filed September 30, 2017;
Defendant Commissioner Nancy A. Berryhill's Brief in
Response to Plaintiff's Motion to Reverse and Remand the
Agency's Administrative Decision (the
“Response”), (Doc. 25), filed November 29, 2017;
and Ms. Scrivner's Reply to Brief in Response to
Plaintiff's Motion to Reverse and Remand (the
“Reply”), (Doc. 28), filed December 18, 2017.
Scrivner filed applications for supplemental security income
and disability insurance benefits on November 27, 2012,
alleging disability beginning September 5, 2012.
(Administrative Record “AR” 8). Ms. Scrivner
claimed she was limited in her ability to work due to:
stress, anxiety, depression, chronic pain, a heel spur,
plantar fasciitis, and asthma. (AR 171). Ms. Scrivner later
amended her alleged onset date to January 2013. (AR 235). Ms.
Scrivner's applications were denied initially on March 7,
2013, and upon reconsideration on October 11, 2013. (AR 8).
Ms. Scrivner requested a hearing before an Administrative Law
Judge (“ALJ”), which was held on February 25,
2015, before ALJ James A. Burke. (AR 34). Ms. Scrivner
testified at the hearing, and was represented by attorney
Ione Gutierrez. (AR 36-43).
August 26, 2015, the ALJ issued his decision, finding Ms.
Scrivner not disabled at any time between her alleged
disability onset date through the date of the decision. (AR
18-19). Ms. Scrivner requested review by the Appeals Council,
(AR 32), which was denied, (AR 1-3), making the ALJ's
decision the Commissioner's final decision for purposes
of this appeal.
Scrivner, who is now represented by attorney Francesca
MacDowell, argues in her Motion that the ALJ: (1) failed to
properly weigh the medical opinions of Rosalie Davis, Ph.D.,
Kevin M. Henry, M.D., and Michael F. Gzaskow, M.D.; (2) erred
in considering Mr. Scrivner's credibility; and (3)
improperly applied the Medical Vocational Guidelines at step
five. (Doc. 23 at 6-24). The Court has reviewed the Motion,
the Response, the Reply, and the relevant law. Additionally,
the Court has meticulously reviewed the administrative
record. Because the ALJ erred in his consideration of the
opinions of Dr. Davis and Dr. Henry, the Court finds that Ms.
Scrivner's Motion should be GRANTED.
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) (citing Hamilton v. Sec'y of Health &
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)).
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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's
“failure to apply the correct legal standards, or show
. . . that she has done so, are grounds for reversal.”
Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.
1996) (citing Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for the Commissioner's.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214. A court's review is limited to the
Commissioner's final decision, 42 U.S.C. § 405(g),
which is generally the ALJ's decision, rather than the
Appeals Council's denial of review. O'Dell v.
Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
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
ALJ]'s 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. 2004)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004);
20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In
order to determine whether a claimant is disabled, the
Commissioner follows a five-step sequential evaluation
process (“SEP”). Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (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 either (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); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the
ALJ determines the claimant cannot engage in past relevant
work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show 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.
Grogan, 399 F.3d at 1261.
Scrivner claimed she was limited in her ability to work due
to: stress, anxiety, depression, chronic pain, a heel spur,
plantar fasciitis, and asthma. (AR 171). At step one, the ALJ
determined Ms. Scrivner had not engaged in substantial
gainful activity since January 1, 2013, the alleged onset
date. (AR 10). At step two, the ALJ found that Ms. Scrivner
has the following severe impairments: fibromyalgia,
osteoarthrosis/plantar fasciitis, and degenerative disc
disease. (AR 11). At step three, the ALJ determined that none
of Ms. Scrivner's impairments, solely or in combination,
equaled one of the listed impairments in 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926. (AR 12-13).
four, the ALJ found that Ms. Scrivner has the RFC to perform
sedentary work as defined in 20 C.F.R. §§
404.1567(a), 416.967(a), with the following limitations: she
can lift and carry up to 20 pounds occasionally and 10 pounds
frequently; she can sit for six hours in an eight-hour
workday; she can stand and/or walk for two hours in an
eight-hour workday; she can occasionally climb ramps, stairs,
ladders, or scaffolds; and she can occasionally balance,
stoop, kneel, crouch, and crawl. (AR 13).
formulating Ms. Scrivner's RFC, the ALJ stated that he
considered Ms. Scrivner's symptoms and the extent to
which those symptoms can reasonably be accepted as consistent
with objective medical and other evidence, as required by 20
C.F.R. §§ 404.1529 and 416.929, and Social Security
Rulings (“SSR”) 96-4p and 96-7p. Id. The
ALJ also stated that he considered opinion evidence in
accordance with the requirements of 20 C.F.R. §§
404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.
Id. The ALJ found that Ms. Scrivner's statements
concerning the intensity, persistence and limiting effects of
her symptoms are not entirely consistent with the evidence in
the record. (AR 14).
to the medical evidence in the record, the ALJ gave great
weight to the State Agency psychological consultants'
opinions that Ms. Scrivner's mental impairments are
non-severe. Id. The ALJ reasoned that their opinions
are consistent with the medical evidence as a whole, and
specifically with the findings of Dr. Gzaskow, and evidence
that Ms. Scrivner's mental impairments are stable with
medication. (AR 14-15). The ALJ also gave great weight to the
State Agency medical ...