United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for Rehearing, with Supporting Memorandum
(Doc. 22) filed on August 21, 2017. Pursuant to 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to me serving as the presiding judge and entering
final judgment. See Docs. 3, 10, 11. Having
considered the record, submissions of counsel, and relevant
law, the Court finds Plaintiff's motion is not well-taken
and will be denied.
Lee Romanczuk (Plaintiff), born on December 16, 1990, was
initially found eligible for Supplemental Security Income
(SSI) on April 1, 1999, due to attention deficit
hyperactivity disorder (ADHD) and affective/mood disorders
pursuant to Childhood Listing 112.02. See
Administrative Record (AR) at 30, 56, 76. The Social Security
Administration (SSA) reviewed Plaintiff's benefits when
he reached age 18 in June 2010, and found that he no longer
qualified for SSI. AR at 30, 68-70. On June 23, 2010,
Plaintiff requested reconsideration of the decision to
terminate his benefits. AR at 72. An SSA Disability Hearing
Officer reviewed Plaintiff's file and denied his request
for reconsideration on April 11, 2011 (AR at 73-85), finding
that “as an adult, [Plaintiff's] mental impairments
are severe, but should not prevent him from performing at
least simple, unskilled work related activities on a
sustained basis.” AR at 80.
filed a Request for Reconsideration of the Hearing
Officer's decision and sought a hearing with an
Administrative Law Judge (ALJ). AR at 86, 90. On January 24,
2013, ALJ Paula Fow filed an Order of Dismissal, dismissing
Plaintiff's request for a hearing due to numerous failed
attempts to contact Plaintiff and his failure to appear at
the scheduled hearing. AR at 514-15. Consequently, the April
11, 2011 decision remained in effect. AR at 515.
appealed ALJ Fow's dismissal and sought another hearing.
AR at 569. On June 8, 2015, the Appeals Council granted
Plaintiff's request for review and vacated ALJ Fow's
decision because “[t]he electronic file contain[ed]
evidence not located in the paper file” that ALJ Fow
did not consider (AR at 574). See AR at 572-77.
Plaintiff sought another oral hearing, which ALJ Barry
O'Melinn conducted on February 12, 2016. AR at 1106-25.
Both Plaintiff and a vocational expert (VE) testified during
the de novo hearing. See AR at 1106-25.
O'Melinn issued an unfavorable decision on April 12,
2016. AR at 27-46. On April 21, 2016, Plaintiff submitted a
Request for Review of Hearing Decision/Order to the Appeals
Council. See AR at 21. On December 23, 2016, the
Appeals Council denied Plaintiff's request for review. AR
at 13-16. Consequently, the ALJ's decision became the
final decision of the Commissioner. See Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
Applicable Law and the ALJ's Findings
claimant seeking disability benefits 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); 20 C.F.R. § 416.905(a). The Commissioner
must use a sequential five-step evaluation process to
determine eligibility for benefits. 20 C.F.R. §
416.920(a)(4); see also Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009).
claimant has the burden at the first four steps of the
process to show: (1) he is not engaged in “substantial
gainful activity”; (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 (3) his impairment(s) meet or equal
one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt.
404; or (4) pursuant to the assessment of the claimant's
residual functional capacity (RFC), he is unable to perform
his past relevant work. 20 C.F.R § 416.920(a)(4)(i-iv);
see also Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005) (citations omitted). “RFC is a
multidimensional description of the work-related abilities [a
claimant] retain[s] in spite of [his] medical
impairments.” Ryan v. Colvin, Civ. 15-0740
KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing
20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20
C.F.R. § 404.1545(a)(1)). If the claimant meets
“the burden of establishing a prima facie case of
disability[, ] . . . the burden of proof shifts to the
Commissioner at step five to show that” Plaintiff
retains sufficient RFC “to perform work in the national
economy, given his age, education, and work
experience.” Grogan, 399 F.3d at 1261 (citing
Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th
Cir. 1988) (internal citation omitted)); see also 20
C.F.R. § 416.920(a)(4)(v).
One of the process, ALJ O'Melinn found that Plaintiff
“has not engaged in substantial gainful activity[,
]” although the ALJ also noted certain inconsistencies
in Plaintiff's testimony and the evidence regarding
whether he had worked in the past. AR at 33 (citing 20 C.F.R.
§§ 404.1571-1576); see also 20 C.F.R.
Two, the ALJ concluded that “[s]ince June 1, 2010 and
prior to attaining age 22, [Plaintiff] had the following
severe impairments: organic mental and affective disorders;
mild intellectual disability, bipolar disorder, and anxiety
disorder; seizure disorder; and back disorder.” AR at
33 (citing 20 C.F.R. § 404.1520(c); see also 20
C.F.R. § 416.920(c). The ALJ found that Plaintiff's
allegations of “legal blindness and insomnia are not
medically determinable impairments, as there were no medical
signs or laboratory findings to substantiate the existence of
such.” AR at 34.
Three, the ALJ found that “[s]ince June 1, 2010 and
prior to attaining age 22, [Plaintiff] did not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 34 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526); see also 20 C.F.R.
§§ 416.920(d), 416.925, 416.926. In making his
determination, ALJ O'Melinn considered listings 1.02
(major dysfunction of a joint), 1.04 (disorders of the
spine), 2.02, 2.03, and 2.04 (vision problems), 11.02
(convulsive epilepsy), 11.03 (non-convulsive epilepsy), and
listings in 12.02, 12.04, and 12.05 (mental impairments). AR
Four, the ALJ found that while Plaintiff's
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms[, ]” the ALJ did
not find Plaintiff's “statements concerning the
intensity, persistence and limiting effects of these symptoms
[to be] entirely consistent with the medical evidence and
other evidence in the record . . . .” AR at 37. The ALJ
considered the evidence of record, including medical records
from 2009 through 2016 and several mental health evaluations,
a statement from Plaintiff's mother, and Plaintiff's
testimony at his 2016 hearing. AR at 38-44.
O'Melinn found that Plaintiff “has no past relevant
work.” AR at 44 (citing 20 C.F.R. § 404.1565);
see also 20 C.F.R. § 416.965. Ultimately, the
ALJ found that
since June 1, 2010 prior to attaining age 22, [Plaintiff] had
the [RFC] to perform light work as defined in 20 [C.F.R.
§] 404.1567(b) except that he is limited to occasional
climbing of ramps and stairs; and cannot climb ladders,
ropes, or scaffolds. He is limited to frequent balancing,
stooping, kneeling, crouching, and crawling. He must avoid
concentrated exposure to extreme cold, heat, noise, and
airborne irritants such as fumes, odors, dusts, gases, and
poorly vented areas. He must avoid all exposure to
operational control of moving machinery, unprotected heights,
and hazardous machinery. He can understand, remember, and
carry out simple work instructions, make commensurate work
related decisions, and respond appropriately to supervision,
co-workers, and work situations. He can deal with routine
changes in work setting and maintain concentration,
persistence, and pace for up to and including two hours at a
time with normal breaks throughout a normal workday. He would
be most suitable for jobs working primarily with things and
AR at 36-37.
stated that he “asked [a VE] whether jobs exist in the
national economy for an individual with [Plaintiff's]
age, education, work experience, and [RFC] prior to attaining
age 22.” AR at 45. “The [VE] testified that given
all of these factors the individual would be able to perform
the requirements of representative occupations such
as:” (1) cleaner polisher, (2) hotel cleaner, and (3)
checker 1. AR at 45. The ALJ found that the VE's
“testimony is consistent with the information contained
in the Dictionary of Occupational Titles.” AR at 45.
Consequently, the ALJ found that Plaintiff “has not
been under a disability . . . any time since June 1, 2010 and
prior to December 15, 2012, the date he attained age
22.” AR at 45 (citing 20 C.F.R. §§
404.350(a)(5), 404.1520(g)); see also 20 C.F.R.
§ 416.920(g). The ALJ determined that Plaintiff's
“disability ended on June 1, 2010, and [Plaintiff] has
not become disabled again since that date.” AR at 45
(citing 20 C.F.R. §§ 416.987(e), 416.920(g)).