United States District Court, D. New Mexico
NATASHA S. MONTANO, 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 a Rehearing, with Supporting
Memorandum [Doc. 16] (“Motion”), filed on
November 3, 2017. The Commissioner responded on December 13,
2017. [Doc. 17]. Plaintiff replied on January 16, 2018. [Doc.
19]. The parties have consented to the undersigned's
entering final judgment in this case. [Doc. 7]. Having
meticulously reviewed the entire record and being fully
advised in the premises, the Court finds that Plaintiff fails
to meet her burden as the movant to show that the
Administrative Law Judge (“ALJ”) did not apply
the correct legal standards or that her decision was not
supported by substantial evidence. Accordingly, the Motion
will be denied and the Commissioner's final decision
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). 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). Courts
must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. 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.” Id. 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 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. § 423(d)(1)(A), 1382c(a)(3)(A);
20 C.F.R. §§ 404.1505(a), 416.905(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
she is not engaged in “substantial gainful
activity”; and (2) she 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) her
impairment(s) either meet or equal one of the
“Listings”of presumptively disabling impairments;
or (4) she is unable to perform her “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. If she cannot show that her impairment
meets or equals a Listing, but she proves that she is unable
to perform her “past relevant work, ” the burden
of proof then shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering her residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
applied for a period of disability, disability insurance
benefits, and supplemental security income on May 28, 2013.
Tr. 21. She alleged a disability-onset date of April 1, 2011.
Id. Her claim was denied initially and on
reconsideration. Id. ALJ Lillian Richter held a
hearing on January 28, 2016, in Albuquerque, New Mexico. Tr.
21, 46-95. Plaintiff appeared with her attorney. Id.
The ALJ heard testimony from Plaintiff, her partner Luka
Weinberger, and an impartial vocational expert
(“VE”) Karen N. Provine. Id.
issued her unfavorable decision on May 4, 2016. Tr. 40. She
found that Plaintiff met the insured status requirements
through December 31, 2016. Tr. 23. At step one she found that
Plaintiff had not engaged in substantial gainful activity
between her alleged onset date and her date last insured.
Id. At step two, the ALJ found that Plaintiff
suffered from the following severe impairments:
“systemic lupus, obesity, acne vulgaris, furunculosis
versus hidradenitis supparavita, antiphospholipid antibody
syndrome, restless legs syndrome, chronic migraines, anxiety
disorder, depression, borderline intelligence, rheumatoid
arthritis, chronic back pain, degenerative disc disease with
osteoarthritis, cerebrovascular accident[, ] and irritable
bowel syndrome.” Tr. 23-24.
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 24-28. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 28-38. The ALJ found
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §§] 404.1567(b) and 416.967(b) except
[Plaintiff] can lift, carry, push[, ] and pull 20 pounds
occasionally and 10 pounds frequently. [Plaintiff] can walk
and/or stand for 6 hours and sit for 6 hours in an 8-hour
workday. [Plaintiff] can occasionally finger bilaterally, can
frequently handle and frequently feel bilaterally.
[Plaintiff] is limited to performing simple, routine work.
[Plaintiff] is limited to hearing and understanding simple
information. [Plaintiff] can have occasional contact with
supervisors, coworkers, and members of the public.
[Plaintiff] is limited to a workplace with few changes in the
routine work setting. [Plaintiff] could not perform work at
an assembly line production pace but could meet end-of-day
goals. [Plaintiff] is limited to making simple, work related
four the ALJ found that Plaintiff was unable to return to any
of her past relevant work. Tr. 38. The ALJ went on to
consider Plaintiff's RFC, age, education, work
experience, and the testimony of the VE at step five. Tr.
39-40. She found that Plaintiff could perform work that
exists in significant numbers in the national economy and,
therefore, was not disabled. Id. Plaintiff requested
review from the Appeals Council, but ...