United States District Court, D. New Mexico
MATTHEW E. GABALDON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for Rehearing, with Supporting Memorandum
[Doc. 22] (“Motion”), filed on October 16, 2017.
The Commissioner responded on November 30, 2017. [Doc. 24].
Plaintiff replied on December 19, 2017. [Doc. 25]. The
parties have consented to the undersigned's entering
final judgment in this case. [Doc. 8]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that the Administrative Law Judge
(“ALJ”) failed to provide an adequate reason for
rejecting the opinion of the consultative examiner in favor
of the opinions of the non-examiners. Accordingly, the Motion
will be granted, and the case will be remanded for further
proceedings. See 42 U.S.C. § 405(g) (sentence
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. 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)).
If substantial evidence supports the Commissioner's
findings and the correct legal standards were applied, the
Commissioner's decision stands and the plaintiff is not
entitled to relief. 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). 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 at 1214.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. The 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. While a court may not re-weigh the evidence or try
the issues de novo, its examination of the record as a whole
must include “anything that may undercut or detract
from the [Commissioner]'s findings in order to determine
if the substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings
from being supported by substantial evidence.” Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
failure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant must
establish that 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),
light of this definition for disability, a five-step
sequential evaluation process has been established for
evaluating a disability claim. 20 C.F.R. §§
404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137,
140 (1987). At the first four steps of the SEP, the claimant
has the burden to show that: (1) he is not engaged in
“substantial gainful activity”; and (2) he has a
“severe medically determinable . . . impairment . . .
or a combination of impairments” that has lasted or is
expected to last for at least one year; and either (3) his
impairment(s) either meet or equal one of the
“Listings” of presumptively disabling impairments; or
(4) he is unable to perform his “past relevant
work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv),
416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. At
the fifth step of the evaluation process, the burden of proof
shifts to the Commissioner to show that the claimant is able
to perform other work in the national economy, considering
his RFC, age, education, and work experience.
Grogan, 399 F.3d at 1261.
applied for supplemental security income and a period of
disability and disability insurance benefits on September 15,
2010. Tr. 18. He alleged a disability-onset date of October
15, 2009. Id. His claim was denied initially and on
reconsideration. Id. ALJ Peter M. Keltch held the
first of two hearings on May 15, 2012, in Oklahoma City,
Oklahoma. Tr. 36-80. Plaintiff appeared by video conference
with his attorney. Id. (At the hearing, through his
attorney, Plaintiff withdrew his request for a hearing on the
denial of his SSI claim. In other words, he abandoned his SSI
claim. Tr. 41.) Although ALJ Keltch held the hearing, ALJ
Trace Baldwin entered the decision on March 7, 2013. Tr.
114-25. ALJ Baldwin reiterated that Plaintiff had withdrawn
his request for a hearing on the denial of his SSI claim. Tr.
114, 120. ALJ Baldwin also denied the disability claim on the
merits. Tr. 114-120. Plaintiff requested review of ALJ
Baldwin's decision. As to the denial of disability
benefits, the Appeals Council granted review, reversed ALJ
Baldwin's decision, and remanded the disability claim for
a new hearing, with certain specific instructions. Tr.
127-29. However, as to the SSI claim, the Appeals Council
denied review. Tr. 130-31.
Barry O'Melinn held the second hearing on September 14,
2015, in Albuquerque, New Mexico. Tr. 19, 81-102. Plaintiff
and his attorney appeared by video conference from Santa Fe,
New Mexico. Id. The ALJ heard testimony from
Plaintiff and an impartial vocational expert
(“VE”), Sandra Trost. Id.
O'Melinn issued his unfavorable decision on December 8,
2015. Tr. 28. He found that Plaintiff met the insured status
requirements through June 30, 2013. Tr. 21. At step one he
found that Plaintiff had not engaged in substantial gainful
activity since his alleged onset date, October 15, 2009.
Id. At step two, the ALJ found that Plaintiff
suffered from the following severe impairments: diabetes
mellitus, obesity, degenerative disc disease, and a disorder
of his bilateral feet. Id. The ALJ found that
Plaintiff's blurred vision was not a medically
determinable impairment. Tr. 22. However, he found
Plaintiff's anxiety, post-traumatic stress disorder,
substance abuse, and alcohol abuse were medically
determinable impairments but, considered singly and in
combination, were not severe. Id. In making his
findings regarding Plaintiff's mental impairments, the
ALJ discussed the opinions of Dr. Steinman, Dr. Morse, and
Dr. VanHoose. Id.
M. Steinman, Ph.D., performed the consultative psychological
examination on January 19, 2011. Tr. 467. He diagnosed
adjustment disorder with anxiety; rule out posttraumatic
stress disorder (“PTSD”), chronic; and rule out
cannabis dependence. Tr. 469. Dr. Steinman found Plaintiff to
be “nervous and anxious.” Id. Dr.
Steinman opined that Plaintiff “may be moderately
limited in working with others. He is likely . . . markedly
limited in his ability to take supervision. He is likely to
have difficulty carrying out the tasks expected of him. He
does not seem readily adaptable to change.”
Ward, M.D., Ph.D., performed the consultative physical
examination on January 21, 2011. Tr. 461-64. She noted
Plaintiff's complaints of paranoia and getting nervous
around other, especially crowds. Tr. 461. He became “a
little agitated or irritated during the history taking”
and required redirection. Tr. 463. Dr. Ward also noted
“a lack of attention initially, ” which resolved
over the examination. Id. Finally, Dr. Ward's
impressions included “multiple psychiatric diagnoses,
” which she “defer[red] to the mental health
assessment regarding ability to function in a work
environment.” Tr. 464.
January 31, 2011, Tracey Morse, Ph.D., reviewed the record,
including Dr. Steinman's and Dr. Ward's reports. Tr.
488-500. Dr. Morse opined:
[Plaintiff] report[s] he is ind[ependent] with self-care,
prep[aration of] meals, . . . use[s] public transport,
shop[s], manage[s] funds, has some trouble getting along with
Claim of anxiety is credible per [medical evidence of
record]. [Dr. Steinman] and [Dr. Ward] report anxious mood
and some intermittent diff[iculties] with concentration. Both
report irritability. However, at [Dr. Ward's examination,
Plaintiff] was able to focus and improve his interpersonal
skills with minor redirection. [Plaintiff] reports some
inability to get along with others and diff[iculties] with
concentration. [Plaintiff] reports otherwise adequate
functioning. Mild impairments in social ...