United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE.
THIS MATTER is before the Court on the
Social Security Administrative Record (Doc. 17) filed May 22,
2017, in support of Plaintiff Crystal Elaine Burkholder'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 August 28, 2017, Plaintiff filed
her Motion to Remand or Reverse (“Motion”). (Doc.
24.) The Commissioner filed a Response in opposition on
October 13, 2017 (Doc. 26), and Plaintiff filed a Reply on
November 13, 2017. (Doc. 27.) 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
Crystal Elaine Burkholder (“Ms. Burkholder”)
alleges that she became disabled on February 6, 2013, at the
age of twenty-six because of depression, learning disability,
anxiety and separation issues. (Tr. 175-76,
179.) Ms. Burkholder completed the tenth grade,
worked as a grocery store cashier, fast food helper, and
department store inventory control peer. (Tr. 180.)
February 6, 2013, Ms. Burkholder protectively filed an
application for Supplemental Security Income
(“SSI”) under Title XVI of the Act, 42 U.S.C.
§ 1381 et seq. (Tr. 150-56, 175.) Ms. Burkholder's
application was initially denied on August 27, 2013. (Tr.
60-71, 72, 90-93.) It was denied again at reconsideration on
November 4, 2013. (Tr. 73-86, 87, 97-101.) On December 3,
2013, Ms. Burkholder requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 103-05.)
ALJ Barry O'Melinn conducted a hearing on July 27, 2015.
(Tr. 28-55.) Ms. Burkholder appeared in person at the hearing
with attorney Michelle Baca. (Id.) The ALJ took
testimony from Ms. Burkholder (Tr. 34-51), and an impartial
vocational expert (“VE”), Leslie White. (Tr.
51-54.) On October 14, 2015, the ALJ issued an unfavorable
decision. (Tr. 9-23.) On November 9, 2016, the Appeals
Council issued its decision denying Ms. Burkholder's
request for review and upholding the ALJ's final
decision. (Tr. 1-6.) On December 27, 2016, Ms. Burkholder
timely filed a Complaint seeking judicial review of the
Commissioner's final decision. (Doc. 1.)
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. § 1382(a)(3)(A). 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. § 416.945(a)(1). This is
called the claimant's residual functional capacity
(“RFC”). Id. § 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. § 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 her decision that Ms. Burkholder was not disabled at
step five of the sequential evaluation. Specifically, the ALJ
found that Ms. Burkholder had not engaged in substantial
gainful activity since her alleged onset date of February 6,
2013,  and had severe impairments of major
depressive disorder, generalized anxiety disorder,
post-traumatic stress disorder, and learning disorder that
did not meet or medically equal the severity of a listing.
(Tr. 14-15.) He found that Ms. Burkholder had the residual
functional capacity to perform a full range of work at all
exertional levels, but that she had the following
she can understand, carry out, and remember simple
instructions and make commensurate work related decisions;
can respond appropriately to supervision, co-workers, and
work situations. She is able to deal with routine changes in
the work setting and maintain concentration, persistence, and
pace for up to and including two hours at a time, with normal
breaks throughout the workday. She should have no interaction
with the public. Work can be around co-workers throughout the
day, but should require no more than occasional interaction
16.) The ALJ determined that Ms. Burkholder had no past
relevant work experience. (Tr. 22.) Based on the RFC and the
testimony of the VE, the ALJ concluded that there were jobs
that existed in significant numbers in the national economy
that Ms. Burkholder could perform. (Tr. 22-23.) For this
reason, the ALJ determined that Ms. Burkholder was not
disabled. (Tr. 23.)
support of her Motion, Ms. Burkholder asserts (1) that the
ALJ failed to use correct legal standards in weighing the
medical source evidence; and (2) that the ALJ failed to
resolve the conflict between the VE testimony and the
reasoning level of the jobs identified, which Ms. Burkholder
alleges exceeds the ALJ's RFC. (Doc. 24 at 5-20.) The
Court finds grounds for remand as discussed below.
Partners in Wellness
Mexico Children, Youth, and Families Department
(“CYFD”) referred Ms. Burkholder to Partners in
Wellness after she was accused of child abuse and neglect.
(Tr. 288-304.) CYFD had removed Ms. Burkholder's children
from her, and her participation in parenting classes, anger
management classes, and individual counseling was a condition
of having her children returned. (Id.) On February
27, 2013, LPCC Christina Bryant did an intake. (Id.)
Ms. Burkholder reported she was diagnosed with a learning
disability in elementary school, that she attended special
education classes full time, and that she left school in her
junior year. (Tr. 295-96.) She reported difficulties
with memory and exhibited poor insight and judgment. (Tr.
293.) She reported a history of auditory hallucinations,
having last heard voices in her head about a year prior. (Tr.
288, 293) She stated that taking Risperdal stopped the
voices. (Id.) She also reported a history of
suicidal ideation, with the most recent occurring in relation
to her not having her children in the days prior to intake.
Bryant assessed Axis I diagnoses of major depression
disorder, single episode, severe, adjustment disorder with
anxiety, and parent/child problems. (Tr. 288-89.) She
assigned a GAF score of 35. (Tr. 291.) LPCC Bryant noted that
Ms. Burkholder was Core Service Agency (CSA) eligible with a
GAF of 35 and due to her recent suicidal ideations,
depression, anxiety, indicators of codependency, history of
psychosis, and function impairments. (Id.) Ms.
Burkholder declined CSA services. (Id.)
Brandy Samaniego, LISW
March 8, 2013, Ms. Burkholder began individual counseling
sessions with Brandy Samaniego, LISW. (Tr. 354.) She attended
seventeen individual counseling sessions with LISW Samaniego
over the course of five months, from March 8, 2013, through
August 7, 2013, while at Partners in Wellness. (Tr. 354, 355,
360, 363, 366, 372, 380, 387, 394, 407, 410, 413, 418, 419,
422, 424, 425.) LISW Samaniego noted, inter alia,
that Ms. Burkholder was not taking responsibility for her
situation and was blaming others (Tr. 354, 360); that her
progress was slow, and that her learning disability and lack
of common sense was causing her to make poor decisions (Tr.
363, 366, 407, 422, 424); that she had real parenting
deficits (Tr. 380, 387, 410); and that Ms. she struggled with
aggression (Tr. 419). LISW Samaniego also noted that Ms.
Burkholder was attempting, along with her mother, to keep
their house clean (Tr. 363, 372); and that she was
demonstrating increased awareness and was trying to be a more
responsible parent (Tr. 413).
22, 2015, LISW Samaniego prepared a Clinical Assessment of
Ms. Burkholder. (Tr. 493-97.) LISW Samaniego stated in
relevant part that
[t]his provider has had a fairly long history with the client
and has always suspected either an autism spectrum diagnosis
or cognitive disorder diagnosis. The client presents
physically as a normal 28 year old woman, however, one could
tell fairly quickly into conversation, that she has some
deficits, though it is difficult to pinpoint exactly what
they are. Clearly, [Ms. Burkholder's] decision-making
abilities have affected her; however, she has demonstrated
motivation and determination in the area of her children and
is dedicated to getting their lives back to
“normal.” [Ms. Burkholder's] attempts to do
everything that is asked of her, however, due to her
impulsivity, she can often become impatient when dealing with
others, and this comes off as uncooperative or angry.
. . .
In this provider's experience of the client, and per her
own report, she is impulsive, quick to anger, has trouble
with comprehension in most situations, does not always think
through situations or is able to foresee all possible
consequences, odd affect, immature for her age, and
borderline intellectual functioning.
496-97.) LISW Samaniego noted an Axis I diagnosis of Mood
Disorder, NOS; an Axis II diagnosis of Borderline
Intellectual Functioning; and assessed a GAF score of
did not evaluate or discuss LISW Samaniego's assessment.
He did, however, generally refer to the Partners in Wellness
records,  and specifically referenced in his
determination only two of LISW Samaniego's treatment
notes. In the first reference, the ALJ stated that
[Ms. Burkholder] was angry and depressed over the removal of
her children, but she met all the demands required by CYFD,
and in turn, she was able to have her children returned.
Licensed social worker, Brandy Samaniego, noted on July 3,
2013, that she has seen significant improvement in her anger
and demonstrating increased responsibility.
(Tr. 18.) The ALJ referenced LISW Samaniego's treatment
notes a second time in his determination when discussing Ms.
Burkholder's credibility. He stated that
[f]inally, notes from Ms. Samaniego dated May 24, 2013,
reflect that [Ms. Burkholder] attempted to get out of doing
community service and finding a job as part of the condition
of her probation, by asking Ms. Samaniego to state she is
unable to work. She stated she does not want to work because
she does not want to leave her children with her mother, as
she is “too old.” Ms. Samaniego reminded her that
she has never presented too impaired to work or do community
service, and that the question would ...