United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Remand or Reverse Agency Decision, filed on June 5, 2017. ECF
No. 18. Plaintiff also filed a “Brief In Support of
Second Complaint Motion to Reverse or Remand”
(“Motion”) on June 5, 2017. ECF No. 19. The
Commissioner responded on August 14, 2017. ECF No. 21.
Plaintiff replied on August 28, 2017. ECF No. 23. Having
meticulously reviewed the entire record and the parties'
briefing, the Court finds that Plaintiff's Motion is not
well taken and that the Administrative Law Judge's
(“ALJ's”) ruling should be
AFFIRMED. For the reasons articulated below,
the Court will DENY Plaintiff's Motion.
background has been well documented through the previous
Proposed Findings and Recommended Disposition
(“PFRD”) issued by U.S. Magistrate Judge William
P. Lynch. See PFRD, Jan. 26, 2015, at 993-1006, ECF
No. 27, Civ. No. 13-877 MV/WPL. In short, Plaintiff was born on
September 29, 1961. Administrative R. (“AR”) 900.
She earned her high school diploma and attended two years of
college. AR 929, 993. Plaintiff previously worked as a school
bus driver, with intermittent work for the U.S. Census Bureau
as a crew leader and for H & R Block as a data entry
clerk. AR 932, 993.
first filed for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) benefits on August 2, 2010. AR 19. For
both applications, Plaintiff alleged onset of disability
beginning May 28, 2008. AR 19. Both claims were denied
initially and again upon reconsideration. AR 19. Plaintiff
then requested a hearing, which was held before
Administrative Law Judge (“ALJ”) Michael Harris.
AR 19. Plaintiff testified and was represented by counsel. AR
19. Vocational expert (“VE”) Nicole B. King also
testified. AR 19.
November 13, 2012, ALJ Harris issued his decision that
Plaintiff was not disabled within the meaning of the Social
Security Act (“the Act”). AR 27. Plaintiff then
requested that the Social Security Administration's
(“the SSA's”) Appeals Council
(“AC”) review the ALJ's decision, which it
declined to do. AR 1. Subsequently, Plaintiff sought judicial
review of the decision, and Judge Lynch recommended that the
case be remanded to the SSA because ALJ Harris
“committed legal error in failing to consider and
discuss the factors in determining the weight to assign to
these three non-treating sources' opinions.” AR
1009. Judge Lynch also concluded that ALJ Harris
“misstated the burden [of proof]” at step five.
AR 1009. United States District Judge Martha Vazquez adopted
Judge Lynch's PFRD and remanded the case to the SSA for
proceedings consistent with the PFRD. AR 990. The AC then
vacated ALJ Harris's decision and remanded the case
“for further proceedings consistent with the order of
the court.” AR 1013.
SSA's post-remand review was complicated somewhat because
of a development that occurred while Plaintiff's original
appeal was pending before Judge Vazquez: Plaintiff had filed
a second application for DIB and SSI benefits on August 12,
2013. AR 1013. The second application was denied, but upon
reconsideration, the SSA found that Plaintiff was disabled
beginning November 14, 2012, the day after ALJ Harris's
decision. AR 1013. Accordingly, in its remand instructions,
the AC “neither affirm[ed] nor reopen[ed] the
determinations on [Plaintiff's] subsequent applications,
but instead direct[ed] the [ALJ] to evaluate
[Plaintiff's] subsequent allowance pursuant to the
reopening provisions set forth in 20 CFR 404.987-989,
416.1487-1489, HALLEX I-2-9-1, and HALLEX I-2-9-10.” AR
1013. The AC continued, “[i]f the Administrative Law
Judge does not reopen the subsequent determinations, the
favorable determinations will remain final and the issue of
disability will be limited to the period prior to November
14, 2012.” AR 1013.
received a new administrative hearing before ALJ B.D.
Crutchfield on April 19, 2016. AR 885. Plaintiff testified
and was represented by counsel, and VE Mary D. Weber also
testified. AR 885. After the hearing, ALJ Crutchfield found
that Plaintiff was not disabled within the meaning of the Act
from May 28, 2008, through November 13, 2012. AR 901.
Plaintiff then appealed the denial to this Court. ECF No.
argues that the ALJ again misstated the burden of proof at
step five. Pl.'s Mot. 16-17, ECF No. 19. She also asserts
that the ALJ erred by failing to ask the VE whether her
testimony was consistent with the Dictionary of Occupational
Titles (“DOT”). Id. at 17-19. Finally,
Plaintiff contends that the ALJ erred by failing to consider
evidence that arose after November 14, 2012. Id. at
21-22. Specifically, Plaintiff argues that the ALJ should
have reviewed evidence from the second disability
determination, since it concluded that Plaintiff was disabled
beginning the day after the first ALJ's decision that
Plaintiff was not disabled. Id.
Standard of Review
Court's review of an ALJ's decision denying
disability is both factual and legal. See Maes v.
Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec'y of Health & Human Servs.,
961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard
of review in a social security appeal is whether the correct
legal standards were applied and whether the decision is
supported by substantial evidence.”). The factual
findings at the administrative level are conclusive “if
supported by substantial evidence.” 42 U.S.C. §
405(g) (2012). “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); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004);
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003). An ALJ's decision “is not based on
substantial evidence if it is overwhelmed by other evidence
in the record or if there is a mere scintilla of evidence
supporting it.” Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. Substantial evidence does
not, however, require a preponderance of the evidence.
See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for that of the Commissioner.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
review of an ALJ's legal decisions, the Court reviews
“whether the ALJ followed the specific rules of law
that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
if substantial evidence supports the ALJ's findings and
the correct legal standards were applied, the
Commissioner's decision stands and the plaintiff is not
entitled to relief. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2016). At the first three steps, the ALJ
considers the claimant's current work activity, the
medical severity of the claimant's impairments, and the
requirements of the Listing of Impairments. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt.
404, Subpt. P, App'x 1. If a claimant's impairments
are not equal to one of those in the Listing of Impairments,
then the ALJ proceeds to the first of three phases of step
four and determines the claimant's residual functional
capacity (“RFC”). See Winfrey, 92 F.3d
at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In
phase two, the ALJ determines the physical and mental demands
of the claimant's past relevant work, and in the third
phase, compares the claimant's RFC with the functional
requirements of her past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from
performing her past work, then she is not disabled. 20 C.F.R.
§§ 404.1520(f), 416.920(f). The claimant bears the
burden of proof on the question of disability for the first
four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482
U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d
1456, 1460 (10th Cir. 1987).
claimant cannot return to her past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is nonetheless capable of performing other
jobs existing in significant numbers in the national economy.
See Thomas, 540 U.S. at 24-25; see also Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)
(discussing the five-step sequential evaluation process in
appeal, Plaintiff argues that the ALJ applied the law
incorrectly. The Court is not persuaded. First, the ALJ
accurately described the Commissioner's burden at step
five. Second, the transcript of the administrative hearing
reveals that, as the Commissioner points out, the ALJ asked
the VE to advise her if her testimony conflicted with the DOT
or was otherwise not addressed in the DOT. AR 940;
see Def.'s Resp. 5, ECF No. 21. The ALJ
therefore complied with the requirements of Haddock v.
Apfel, 196 F.3d 1084 (10th Cir. 1999) and the
requirements of Social Security Ruling (“SSR”)