United States District Court, D. New Mexico
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
REVERSE AND REMAND
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
seeks review of the Commissioner's determination that she
is not entitled to disability benefits under Title II or
Title XVI of the Social Security Act, 42 U.S.C. §§
401-434, §§ 1381-1383f. With the consent of the
parties to conduct dispositive proceedings in this matter,
see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b), the
Court has considered Plaintiff's Motion to Reverse and
Remand for Rehearing, with Supporting Memorandum, filed April
10, 2017 (Doc. 20), the Commissioner's response in
opposition, filed May 24, 2017 (Doc. 24), and Plaintiff's
reply, filed June 30, 2017 (Doc. 28). Having so considered,
the Court FINDS and CONCLUDES that Plaintiff's motion is
not well-taken and should be denied.
5, 2014, Plaintiff filed an application for Title II
disability insurance benefits and Title XVI supplemental
security income, alleging that she had been disabled since
June 30, 2011, due to depression, a back injury, and
arthritis. AR 69. On April 10, 2015, it was determined that
Plaintiff was not disabled and her claim was denied. AR
97-98. This determination was affirmed on January 26, 2016,
AR 128-29, and a subsequent hearing before an administrative
law judge (“ALJ”), held on April 25, 2016, again
ended in a denial. AR 16-29. The ALJ's decision became
final when, on August 1, 2016, the Appeals Council denied
Plaintiff's request for review. AR 1-4. See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000) (explaining that if
the Council denies a request for a review, the ALJ's
opinion becomes the final decision). See also 20
C.F.R. § 404.900(a)(1)-(5).
review of the Commissioner's decision is limited to
determining “whether substantial evidence supports the
factual findings and whether the ALJ applied the correct
legal standards.” Allman v. Colvin, 813 F.3d
1326, 1330 (10th Cir. 2016). See also 42 U.S.C.
§ 405(g). “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) (quotation omitted).
“Evidence is not substantial if it is overwhelmed by
other evidence in the record or constitutes mere
conclusion.” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005) (quotation omitted). The Court
must examine the record as a whole, “including anything
that may undercut or detract from the ALJ's findings in
order to determine if the substantiality test has been
met.” Id. at 162. “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.”
Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.
1984) (quotation omitted). Even so, it is not the function of
the Court to review Plaintiff's claims de novo, and the
Court may not reweigh the evidence or substitute its judgment
for that of the ALJ. Glass v. Shalala, 43 F.3d 1392,
1395 (10th Cir. 1994).
” as defined by the Social Security Act, is the
inability “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 twelve months.” 42 U.S.C.
§ 1382c(3)(A); § 423(d)(1)(A). The Act further adds
that for the purposes of § 1382c(3)(A) and §
an individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(3)(B); § 423(d)(2)(A).
evaluating a disability claim under this standard, the ALJ
employs a five-step sequential process. 20 C.F.R. §
404.1520. In the first four steps, the claimant must
prove that he or she (1) is not engaged in any substantial
gainful activity; (2) has a severe physical or mental
impairment, or combination of impairments, that meets the
twelve month duration requirement; (3) has an impairment, or
combination thereof, that meets or equals a listing in 20
C.F.R. pt. 404, subpt. P, App. 1; and (4) is unable to engage
in past relevant work. 20 C.F.R. § 404.1520
(a)(4)(i)-(iv). If the disability claim survives step four,
the burden shifts to the ALJ to prove, at step five, that the
claimant is able to adjust to other jobs presently available
in significant numbers in the national economy. 20 C.F.R.
§ 416.1520(a)(4)(v). See also Wilson v. Astrue,
602 F.3d 1136, 1139 (10th Cir. 2010).
four and five are based on an assessment of the
claimant's residual functional capacity
(“RFC”) which gauges “what the claimant is
still functionally capable of doing on a regular and
continuing basis, despite his impairments.”
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
The ALJ's Determination
case at bar, ALJ Rolph engaged in the sequential analysis set
forth above, first finding that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date of
June 30, 2015. AR 21. At step two, ALJ Rolph found that
Plaintiff has the severe impairments of depression, anxiety,
post-traumatic stress disorder (PTSD), and adjustment
disorder. Id. At step three, the ALJ determined that
none of Plaintiff's impairments, whether alone or in
combination, met or medically equaled the severity of a
listed impairment. AR 22.
Rolph next assessed Plaintiff's RFC, finding that
Plaintiff has the residual functional capacity to:
perform a full range of work at all exertional levels but
with the following nonexertional limitations: she is fully
capable of learning, remembering and performing simple,
routine and repetitive work tasks, involving simple work
instructions, which are performed in a routine, predictable
and low stress work environment, defined as one in which
there is a regular pace, few workplace changes, and no
"over the shoulder" supervision. She can attend and
concentrate for two to four hours at a time with regular
breaks. She may have occasional and superficial contact with
supervisors, coworkers and the public.
AR 23-24. Based on this assessment, ALJ Rolph determined, at
step four, that Plaintiff was unable to perform her past
relevant work as a firefighter. AR 27.
to step five, the ALJ found that Plaintiff was “capable
of making a successful adjustment to other work that exists
in significant numbers in the national economy.” AR 29.
Specifically, he determined that Plaintiff retained the
residual functional capacity to perform the requirements of
Assembly Worker (DOT 706.684-022), Garment Sorter (DOT
222.687-014), and Wire Cutter (728.684-022). AR 29.
Accordingly, ALJ Rolph ultimately concluded that Plaintiff
was not disabled. Id.
Challenges to the ALJ's Determination
support of her request for reversal and remand, Plaintiff
alleges that the ALJ (1) improperly weighed the opinion
evidence of consultative examiner, Carla Buckner, LISW; (2)
improperly weighed “other medical source”
evidence; (3) improperly evaluated Plaintiff's symptoms;
(4) improperly assessed Plaintiff's Global Assessment of
Functioning (“GAF”) score; (5) failed to consider
Plaintiff's physical limitations in conjunction with her
mental impairments; and (6) reached an erroneous conclusion
at step five of his analysis. Plaintiff, however, fails to
sufficiently develop these allegations into contentions
devotes almost the entirety of her twenty-five (25) page
motion to a summary of the medical evidence of record. True,
Plaintiff details this evidence under headings and
subheadings including, “Improper weighing of
consultative psychologist and counselor opinions” (Doc.
20, p. 7); “Failure to weigh the other mental health
treatment evidence” (Id. at 11);
“Improper reliance on absence of mental health
treatment, inconsistencies” (Id. at 19);
“RFC error regarding physical limitations”
(Id. at 21); and “The ALJ Failed to Clarify
the VE Testimony” (Id. at 24). Yet, the
argumentation attached to these allegations is relegated to a
few sentences at the end of each section. And, what little
argument can be found is undeveloped and largely unsupported.
See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (“We will consider and discuss only
those of her contentions that have been adequately briefed
for our review.”); Wall v. Astrue, 561 F.3d
1048, 1065 (10th Cir. 2009) (declining to consider
undeveloped argumentation and deeming the issue waived);
United States v. Wooten, 377 F.3d 1134, 1145 (10th
Cir. 2004) (“The court will not consider such issues
adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation.”) ...