United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Social Security
Administrative Record (Doc. 16) filed May 10, 2017, in
support of Plaintiff Alfonso Mario Gonzales, Jr.'s
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claim for Title XVI supplemental
security income benefits. On July 7, 2017, Plaintiff filed
his Motion to Reverse and Remand to Agency for Rehearing With
Supporting Memorandum (“Motion”). (Doc. 19.) The
Commissioner filed a Response in opposition on September 7,
2017 (Doc. 21), and Plaintiff filed a Reply on September 22,
2017. (Doc. 22.) The Court has jurisdiction to review the
Commissioner's final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed
the entire record and the applicable law and being fully
advised in the premises, the Court finds the Motion is not
well taken and is DENIED.
Background and Procedural Record
Alfonso Mario Gonzales, Jr. (“Mr. Gonzales”)
alleges that he became disabled on September 12, 2012, at the
age of thirty-three because of back, neck and knee injuries,
asthma, post-traumatic stress syndrome, severe headaches,
anxiety, and dizziness. (Tr. 30, 76, 239.) Mr. Gonzales
completed the eighth grade, and worked as a busboy,
dishwasher, and warehouse worker. (Tr. 240, 241, 250-52.) Mr.
Gonzales reported he stopped working on March 1, 2003,
because of his medical conditions. (Tr. 239.)
September 1, 2012, Mr. Gonzales protectively filed an
application for Supplemental Security Income
(“SSI”) under Title XVI of the Act, 42 U.S.C.
§ 1381 et seq. (Tr. 210-15, 235.) Mr. Gonzales's
application was initially denied on December 12, 2012. (Tr.
76-87, 88, 106-109.) It was denied again at reconsideration
on August 30, 2013. (Tr. 89-104, 105, 115-19.) On October 8,
2013, Mr. Gonzales requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 120-22.)
ALJ Donna Montano conducted a hearing on June 2, 2015. (Tr.
27-75.) Mr. Gonzales appeared in person at the hearing with
attorney representative Gary Martone. (Id.) The ALJ
took testimony from Mr. Gonzales (Tr. 30-63, 67-71), and an
impartial vocational expert (“VE”) (Tr. 63-66,
72-74). On June 30, 2015, the ALJ issued an unfavorable
decision. (Tr. 8-21.) On October 11, 2016, the Appeals
Council issued its decision denying Mr. Gonzales's
request for review and upholding the ALJ's final
decision. (Tr. 1-5.) On December 13, 2016, Mr. Gonzales
timely filed a Complaint seeking judicial review of the
Commissioner's final decision. (Doc. 1.)
Disability Determination Process
individual is considered disabled if 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. § 1382(a)(3)(A) (pertaining
to supplemental security income disability benefits for adult
individuals). The Social Security Commissioner has adopted
the familiar five-step sequential analysis to determine
whether a person satisfies the statutory criteria as follows:
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful
activity.” If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his
(2) At step two, the ALJ must determine the severity of the
claimed physical or mental impairment(s). If the claimant
does not have an impairment(s) or combination of impairments
that is severe and meets the duration requirement, he is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listing described in Appendix
1 of the regulations, the ALJ must determine at step four
whether the claimant can perform his “past relevant
work.” Answering this question involves three phases.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). First, the ALJ considers all of the relevant medical
and other evidence and determines what is “the most
[claimant] can still do despite [his physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). This is called the claimant's residual
functional capacity (“RFC”). Id.
§§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ
determines the physical and mental demands of claimant's
past work. Third, the ALJ determines whether, given
claimant's RFC, the claimant is capable of meeting those
demands. A claimant who is capable of returning to past
relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past
relevant work, the Commissioner, at step five, must show that
the claimant is able to perform other work in the national
economy, considering the claimant's RFC, age, education,
and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however,
the Commissioner is able to make the required showing, the
claimant is deemed not disabled.
See 20 C.F.R. § 416.920(a)(4); Fischer-Ross
v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005). The claimant has the initial
burden of establishing a disability in the first four steps
of this analysis. Bowen v. Yuckert, 482 U.S. 137,
146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show
that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is
disabled or not disabled at any point in the five-step review
is conclusive and terminates the analysis. Casias v.
Sec'y of Health & Human Serv., 933 F.2d
799, 801 (10th Cir. 1991).
Standard of Review
Court must affirm the Commissioner's denial of social
security benefits unless (1) the decision is not supported by
“substantial evidence” or (2) the ALJ did not
apply the proper legal standards in reaching the decision. 42
U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004); Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004); Casias, 933 F.2d at 800-01. In making these
determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the
agency.'” Bowman v. Astrue, 511 F.3d 1270,
1272 (10th Cir. 2008). A decision is based on substantial
evidence where it is supported by “relevant evidence .
. . 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[, ]”
Langley, 373 F.3d at 1118, or “constitutes
mere conclusion.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). The agency
decision must “provide this court with a sufficient
basis to determine that appropriate legal principles have
been followed.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005). Therefore, although
an ALJ is not required to discuss every piece of evidence,
“the record must demonstrate that the ALJ considered
all of the evidence, ” and “the [ALJ's]
reasons for finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
made his decision that Mr. Gonzales was not disabled at step
five of the sequential evaluation. (Tr. 19-20.) Specifically,
the ALJ found that Mr. Gonzales had not engaged in
substantial gainful activity since his application date of
September 12, 2012,  and had severe impairments of obesity,
anxiety disorder, asthma, post-traumatic stress disorder, and
pain disorder. (Tr. 13.) The ALJ, however, determined that
Mr. Gonzales's impairments did not meet or equal in
severity one the listings described in Appendix 1 of the
regulations. (Tr. 13-15.) As a result, the ALJ proceeded to
step four and found that Mr. Gonzales had the residual
functional capacity to perform less than a full range of
light work as defined in 20 CFR 416.967(b). Specifically,
the claimant is able to lift up to 20 pounds occasionally,
lift or carry up to ten pounds frequently, stand or walk for
approximately six hours in an eight-hour workday and sit for
approximately six hours in an eight-hour workday, with normal
breaks. He should avoid concentrated exposure to fumes odors
dust and gasses. From a mental standpoint, the claimant is
limited to work involving only simple routine tasks with
little to no changes in the work setting. He can make
commensurate work related decisions and respond appropriately
to coworkers and supervisors, but contact with co-workers
should only be superficial.
(Tr. 15.) The ALJ further concluded at step four that Mr.
Gonzales had no past relevant work. (Tr. 19.) The ALJ
determined at step five based on Mr. Gonzales's age,
education, work experience, RFC, and the testimony of the VE,
that there were jobs existing in significant numbers in the
national economy that Mr. Gonzales could perform. (Tr.
19-20.) For this reason, the ALJ determined that Mr. Gonzales
was not disabled. (Tr. 20.)
support of his Motion, Mr. Gonzales argues that (1) the ALJ
failed to properly consider the State agency psychological
consultant opinion evidence; and (2) the ALJ failed to
properly consider Mr. Gonzales's obesity. (Doc. 19 at
7-12.) For the reasons discussed below, the Court finds there
is no reversible error.
State Agency Psychological Consultant Opinion
State Agency Examining Psychological Consultant Mark
Simpson, PsyD, LADAC
December 15, 2012, Mr. Gonzales presented to Mark Simpson,
PsyD, for a mental status consultative examination. (Tr.
390-92.) Dr. Simpson initially noted that Mr. Gonzales did
not appear to have difficulty with balance, walking, or
sitting, and that there was no evidence of pain behaviors
during the approximately one hour evaluation. (Tr. 390.) Dr.
Simpson indicated that Mr. Gonzales was cooperative
throughout the evaluation. (Id.)
Gonzales reported a long history of depression, anger,
anxiety, learning difficulties, difficulties with
concentration, and chronic neck and back pain. (Id.)
He also reported that anxiety attacks had resulted in three
emergency room visits the previous year. (Id.)
Mr. Gonzales told Dr. Simpson that he had been stabbed twice
in his torso, once in 1985 and once in 2006, and was in a
motor vehicle accident in 2009, which resulted in injuries to
his back, knee and neck, and caused headaches. (Tr. 391.) Mr.
Gonzales stated he had not worked since 2003 due to his
injuries. (Id.) Mr. Gonzales stated he had been
arrested five or six times for being with a friend who had
drugs, and arrested once for being involved in a shooting.
mental status exam, Dr. Simpson observed that Mr. Gonzales
was (1) oriented to person, date, place, and to the reason he
was being evaluated, and that there was no evidence of
psychomotor agitation or retardation. (Tr. 391.) He noted
that (1) Mr. Gonzales's mood was depressed and his affect
was constricted; (2) he presented as being undereducated; (3)
his thought process was linear and goal directed; and (4) his
insight and judgment were good. (Id.) Dr. Simpson
indicated there was no evidence of perception abnormalities,
and no evidence of suicidal and/or homicidal ideations.
Simpson's Axis I diagnosis was post-traumatic stress
disorder, chronic, and he assessed a GAF score of
(Tr. 391.) Dr. Simpson's impression was that Mr. Gonzales
was challenged by “chronic pain, asthma, headaches, and
by PTSD” and that it appeared “that these
challenges will make it more difficult to seek, obtain, and
maintain employment.” (Tr. 392.) As to Mr.
Gonzales's mental functional limitations, Dr. Simpson
assessed that Mr. Gonzales had mild limitations in
his ability (1) to understand and remember very short and
simple instructions; and (2) to be aware of normal hazards in
the workplace. (Id.) He further assessed that Mr.
Gonzales had mild-to-moderate limitations in his ability (1)
to understand and remember detailed or complex instructions;
(2) to carry out instructions; (3) to attend and concentrate;
(4) to work without supervision; (5) to interact with the
public; (6) to interact with co-workers; (7) to interact with
supervisors; (8) to adapt to changes in the workplace; and
(9) to use public transportation to travel to unfamiliar
State Agency Nonexamining Psychological Consultant ...