United States District Court, D. New Mexico
ALICE D. SALAZAR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for Payment of Benefits, or in the
Alternative, for Rehearing, With Supporting Memorandum”
(“Motion”), filed on June 19, 2017. ECF No. 20.
The Commissioner responded on August 21, 2017. ECF No. 22.
Plaintiff replied on September 7, 2017. ECF No. 23. Having
meticulously reviewed the entire record and the briefing, the
Court finds that Plaintiff's Motion is well taken and
that the Administrative Law Judge's
(“ALJ's”) ruling should be
REVERSED and REMANDED. For
the following reasons, the Court will GRANT
was born on November 4, 1956. Administrative R.
(“AR”) 86, 1073. She graduated high school in May
1974 and then worked in the banking industry as an order
clerk, loan officer, and as a customer service
representative. AR 76-77, 86, 267-68.
filed an application for Disability Insurance Benefits
(“DIB”) on March 19, 2014, followed by an
application for Supplemental Security Income
(“SSI”) on October 10, 2014. AR 210-19. Plaintiff
alleged disability beginning on March 14, 2014, based on
fibromyalgia, obstructive sleep apnea, hypersomnolence,
carpal tunnel syndrome, headaches, short term memory and
concentration impairments, difficulty comprehending and
processing information, depression, irritability, anxiety,
chronic fatigue, lightheadedness, sleep disturbances, and
frequent urinary tract infections. AR 103. The SSA denied
Plaintiff's application initially and upon
reconsideration. AR 99, 122. At her request, Plaintiff
received a de novo hearing before ALJ Ann Farris, at
which Plaintiff, her disability representative John Bishop,
and vocational expert (“VE”) Karen Provine
appeared. AR 45-85, 359-60. On May 19, 2016, the ALJ issued
her decision, finding that Plaintiff was not disabled within
the meaning of the Social Security Act (“the
Act”). AR 19-37. Plaintiff appealed to the SSA Appeals
Council, but it declined review. AR 1-3. As a consequence,
the ALJ's decision became the final decision of the
Commissioner. 20 C.F.R. § 422.210(a) (2017).
timely filed her appeal with this Court on November 23, 2016.
ECF No. 1.
advances seven grounds for relief. First, she argues that the
ALJ erred by adopting the VE's testimony without
clarification. Pl.'s Mot. 7-8, ECF No. 20. Second,
Plaintiff alleges that the ALJ improperly evaluated the
opinion of Dr. Sharon Nunez, M.D., one of her treating
physicians. Id. at 9-14. Third, she contends that
the ALJ neglected to perform a specific analysis of
Plaintiff's fibromyalgia and integrate the results into
her RFC. Id. at 14-19. Fourth, Plaintiff claims that
the ALJ failed to include in her RFC a moderate limitation
identified by Dr. John Owen, Ph.D. Id. at 20-21. Her
fifth claim challenges the omission of a similar limitation
identified by Dr. Charulata Nadiq, Psy.D. Id. at 21.
Sixth, Plaintiff complains that her RFC did not properly
account for her walking and standing limitations.
Id. at 23-25. Lastly, Plaintiff asserts that the
credibility finding made by the ALJ was contrary to the
evidence and established law. Id. at
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. The Court's review of that final
agency decision 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.”).
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
the review of the ALJ's legal decisions, the Court
examines “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 [he] 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. 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 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
THE ALJ'S DECISION
found at step one that Plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date of March 14, 2014. AR 21. At step two, the ALJ
found Plaintiff to suffer the following severe impairments:
(1) trigger finger, (2) diabetes mellitus, (3)
hypothyroidism, (4) fibromyalgia, (5) mild osteoarthritis in
the hands, (6) carpal tunnel syndrome, (7) right knee pain,
(8) obstructive sleep apnea, (9) tarsal tunnel syndrome, (10)
mild neurocognitive disorder due to obstructive sleep apnea,
and (11) adjustment disorder with depression and anxiety. AR
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. AR 21-23. The ALJ first analyzed
Plaintiff's physical impairments, finding that
Plaintiff's carpal tunnel syndrome and osteoarthritis of
the hands did not, alone or in combination, meet or medically
equal the criteria set forth in Listing 1.02B (major
dysfunction of a joint) or Listing 11.14 (peripheral
neuropathies). AR 22. She reasoned that Plaintiff, upon
examination, “was able to pick up small objects from a
flat surface with no difficulty” and demonstrated
satisfactory “motor function in her wrists.” AR
22. Further, the “[r]ange of motion in her wrists and
fingers was normal.” AR 22.
then turned to Plaintiff's mental impairments, which she
considered under Listing 12.04 (affective disorders) and
12.06 (anxiety-related disorders). AR 53. The ALJ determined
the evidence did not satisfy the paragraph B criteria of
these Listings “[b]ecause the claimant's mental
impairments do not cause at least two ‘marked'
limitations or one ‘marked' limitation and
‘repeated' episodes of decompensation, each of
extended duration.” AR 23. She then explained her
reasoning regarding paragraph B's four subparts.
the ALJ evaluated Plaintiff's activities of daily living
and found her to have no restriction. The ALJ looked both to
the results of Plaintiff's consultative examinations and
her own self-reporting to determine that she could manage her
hygiene, pay bills, count change, handle a savings account,
use a checkbook, and go shopping. AR 22. Plaintiff's
mother confirmed as much in the Third-Party Function Report
she completed for Plaintiff on May 1, 2014. AR 22 (citing AR
287). To the extent Plaintiff had any restrictions in her
daily living, the ALJ believed they derived from her physical
complaints. AR 22.
the ALJ found Plaintiff to have moderate difficulties in
social functioning. In support of this finding, she recounted
that both Plaintiff and her mother reported that Plaintiff
had no difficulty getting along with friends, family,
neighbors, or others. AR 22. Nevertheless, Plaintiff also