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. 13-1) filed February 1, 2017, in
connection with the Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum filed May 15, 2017,
by Plaintiff Starla Kay Brawley (Doc. 20.) In her
Motion, Ms. Brawley seeks an order reversing the
final decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration (the SSA),
to deny Ms. Brawley's claim for Title II disability and
disability insurance benefits and her Title XVI application
for supplemental security income. (Tr. 1, 13; Doc. 20 at 3.)
The Commissioner filed a Response in opposition on July 14,
2017. (Doc. 22.) Ms. Brawley filed a Reply on July 17, 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 shall be GRANTED.
Background and Procedural Record
Brawley filed a Title II application for a period of
disability and disability insurance benefits and a Title XVI
application for supplemental security income in March of
2013. (Tr. 213.) In that application, Ms. Brawley claimed
that she became disabled in October 2007, at age 49, due to
post-traumatic stress disorder (PTSD), anxiety, high blood
pressure, insomnia, and thyroid problems, which conditions
limited her ability to work. (Tr. 25, 247, 251.) Ms. Brawley
met the insured status requirements of the SSA through March
31, 2011, and she has not engaged in substantial gainful
activity since October 1, 2007. (Tr. 15.) In May of 2013, the
SSA denied Ms. Brawley's claim for benefits on the ground
that she was not disabled. (Tr. 142.) Upon Ms. Brawley's
request for a review, the May 2013 decision was upheld. (Tr.
151.) Disagreeing with SSA's determination, Ms. Brawley
requested a hearing before an Administrative Law Judge (ALJ).
(Tr. 158-59.) On December 19, 2014, ALJ Eric Weiss held a
hearing at which Ms. Brawley was represented by her counsel,
Michael Armstrong. (Tr. 34.) Ms. Brawley and Mary Diane
Weber, an impartial vocational expert, testified at the
hearing. (Doc. 20 at 3; Tr. 36, 64.)
regard to her employment history, Ms. Brawley testified that
in 2001 she was terminated from her job as a deli associate
at Walmart. (Tr. 41-45.) Beginning in 2006 she worked for two
companies-one as an electronic technician on an assembly line
(a job that she quit upon losing her temper), and another at
which she began as a solar technician before being promoted
to quality control (a job from which she was fired after she
“got into it” with her foreman). (Tr. 53-57.) Ms.
Brawley testified, further, that in 2008 she worked, through
a temp agency, as a housekeeper for approximately one week-a
job for which she was not called back. (Tr. 41-42.)
each of the foregoing jobs, ALJ Weiss queried Ms. Weber
whether they could be performed by a
hypothetical individual who is able to perform the full range
of exertional work as defined by the regulations, [but who]
may never climb ropes or scaffolds, and . . . must avoid more
than occasional exposure to workplace hazards, such as moving
machinery and unprotected heights[;who] is limited to simple
routine and repetitive tasks and to simple work-related
decisions[; and who]. . . may have only occasional
interaction with the public, coworkers and supervisors.
Tr. 69.) Ms. Weber testified that they could not.
(Id.) However, in response to ALJ Weiss's
further query, Ms. Weber testified that the so-described
“hypothetical individual” should be able to work
as a hand packager inspector, as a housekeeper in a motel or
hotel, or as a dishwasher/kitchen helper. (Tr. 70.) Were this
hypothetical person to be further limited to no contact with
the public, such person could, in Ms. Weber's estimation,
work as a hand packager inspector or a dishwasher. (Tr.
ALJ Weiss issued a notice of decision that was
“unfavorable” to Ms. Brawley's application
for benefits. (Tr. 10, 15.) The Appeals Council denied Ms.
Brawley's request for review of that decision. (Tr. 1.)
Brawley claims that ALJ Weiss committed reversible error by:
(1) improperly rejecting the medical opinion of her treating
psychiatrist; (2) improperly rejecting findings of two state
agency psychiatric consultants; and (3) failing to include a
function-by-function assessment of her work-related mental
abilities in his analysis of her residual functional
capacity. (Doc. 20 at 2.) With regard to Ms. Brawley's
first argument, the Court concludes that the ALJ erred in his
evaluation of the treating physician opinions and that this
error was not harmless. Because remand is necessary, the
Court will not issue a decision with respect to Ms.
Brawley's remaining arguments.
Disability Determination Process
individual is considered disabled if 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) (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, she is not disabled regardless of her
(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, she 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 her “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 [her 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 her 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 ...