United States District Court, D. New Mexico
ORDER MEMORANDUM OPINION AND ORDER
KHALSA United States Magistrate Judge
THIS MATTER is before the Court on the
Social Security Administrative Record (Doc. 12) filed May 5,
2017, in support of Plaintiff John Luis Garcia'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 II disability
insurance benefits. On July 26, 2017, Plaintiff filed his
Motion to Reverse and Remand for Rehearing With Supporting
Memorandum (“Motion”). (Doc. 20.) The
Commissioner filed a Response in opposition on September 20,
2017 (Doc. 22), and Plaintiff filed a Reply on October 9,
2017. (Doc. 23.) 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 well
taken and is GRANTED.
Background and Procedural Record
John Luis Garcia (“Mr. Garcia”) alleges that he
became disabled on July 7, 2012, at the age of thirty-seven
because of herniated discs, bulging discs, degenerative disc
disease, chronic pain in both knees, chronic pain in both
elbows, and chronic migraines. (Tr. 163, 174.) Mr. Garcia
completed one year of college, and owned a commercial signs
and vehicle decal business. (Tr. 166-67, 175, 237.) Mr.
Garcia reported he stopped working due to his medical
conditions. (Tr. 174.)
25, 2012, Mr. Garcia protectively filed an application for
Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
seq. (Tr. 135-38, 163.) Mr. Garcia's application was
initially denied on October 9, 2012. (Tr. 64, 65-72, 85-88.)
It was denied again at reconsideration on June 25, 2013. (Tr.
73-83, 84, 90-94.) On August 28, 2013, Mr. Garcia requested a
hearing before an Administrative Law Judge
(“ALJ”). (Tr. 95.) ALJ Michelle K. Lindsay
conducted a hearing on February 13, 2015. (Tr. 31-63.) Mr.
Garcia appeared in person at the hearing without
representation. (Id.) The ALJ took testimony from
Mr. Garcia (Tr. 36-52, 58-62), and an impartial vocational
expert (“VE”), Thomas Greiner (Tr. 53-58). On
June 23, 2015, the ALJ issued an unfavorable decision. (Tr.
12-25.) On October 21, 2016, the Appeals Council issued its
decision denying Mr. Garcia's request for review and
upholding the ALJ's final decision. (Tr. 1-5.) On
December 23, 2016, Mr. Garcia 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. § 423(d)(1)(A) (pertaining
to disability insurance benefits); see also 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. § 404.1520(a)(4) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
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. Garcia was not disabled at step
five of the sequential evaluation. (Tr. 23-25.) Specifically,
the ALJ determined that Mr. Garcia met the insured status
requirements of the Social Security Act through June 30,
2014,  and that Mr. Garcia had not engaged in
substantial gainful activity from his alleged onset date of
July 7, 2012, through his date last insured of June 30, 2014.
(Tr. 17.) She found that Mr. Garcia had severe impairments of
degenerative disc disease of the lumbar spine, bilateral
chondromalacia patella, fibromyalgia, and migraine headaches.
(Id.) The ALJ, however, determined that Mr.
Garcia's impairments did not meet or equal in severity
any of the listings described in Appendix 1 of the
regulations. (Tr. 19.) As a result, the ALJ
proceeded to step four and found that Mr. Garcia had the
residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except that
he could only occasionally balance, stoop, crouch, crawl,
kneel, and climb stairs and ramps; he could never climb
ladders, ropes, or scaffolds; and he needed to avoid
(Tr. 19.) The ALJ further concluded at step four that Mr.
Garcia was unable to perform any past relevant work. (Tr.
23.) The ALJ determined at step five based on Mr.
Garcia'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. Garcia
could perform. (Tr. 23-24.) As a result, the ALJ determined
that Mr. Garcia was not disabled. (Tr. 25.)
support of his Motion, Mr. Garcia argues that (1) treating
physician Sharon Mullis, D.O.'s medical source statements
submitted to the Appeals Council undercut the ALJ's RFC
determination; (2) the ALJ failed to properly consider
whether Mr. Garcia's fibromyalgia and migraine headaches
equaled the requirements of a listing; (3) the ALJ failed to
properly evaluate Mr. Garcia's statements regarding the
intensity, persistence and limiting effects of his symptoms
pursuant to SSR 16-3p; and (4) the ALJ improperly rejected
certain portions of the State agency nonexamining medical
consultant opinion evidence. (Doc. 20 at 8-18.) For the
reasons discussed below, the Court finds that the ALJ
improperly rejected certain portions of the State agency
nonexamining medical consultant opinion evidence and that,
coupled with treating physician Sharon Mullis, D.O.'s
functional assessments submitted to the Appeals Council,
this case requires remand for rehearing.