United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Ronald Polanco
Ortega's Motion to Reverse and Remand to Agency for
Rehearing with Supporting Memorandum (Doc. 26), which was
fully briefed August 16, 2017. Docs 27, 28, 29. Having
carefully reviewed the parties' submissions, the
administrative record, and the relevant law, I find that the
motion is well taken in part and will GRANT IT IN PART and
DENY IT IN PART, and remand this case to the Social Security
Administration for further proceedings.
Standard of Review
standard that courts apply in reviewing the
Commissioner's decision is the same regardless of whether
the issue is termination of benefits or the initial denial of
benefits. See Glenn v. Shalala, 21 F.3d 983, 984
(10th Cir. 1994). The Court must determine 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).
“The 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 and
typical case, the Court's decision is based on a
“meticulous” review of the entire record, where
it may neither reweigh the evidence nor substitute its
judgment for that of the Commissioner. Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). This case,
however, can be resolved on an error of law. Therefore, all
portions of the record that bear on the legal arguments
raised by Mr. Ortega have been read and carefully considered,
but I did not review every page of the medical documents in
detail, as is usually the case. See Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005)
(“[W]e meticulously examine the record as a whole,
including anything that my undercut or detract from the
ALJ's findings in order to determine if the
substantiality test has been met.”)
(emphasis added). In this case, because “the ALJ failed
to apply the correct legal test, there is ground for reversal
apart from a lack of substantial
evidence.” Thompson v. Sullivan, 987 F.2d
1482, 1487 (10th Cir.1993) (emphasis added).
Applicable Law and Sequential Evaluation Process
initial disability determination, the Court applies a five
step sequential evaluation process. 20 C.F.R. §
404.1520; Bowen v. Yuckert, 482 U.S. 137,
140 (1987). The Social Security Act (the Act) provides that
the Commissioner shall review disability cases to determine
continuing eligibility. 42 U.S.C. § 421(i). The
Commissioner may terminate benefits of an individual
previously determined to be disabled if she finds that the
physical or mental impairments which formed the basis for
award of benefits have ceased, do not exist, or are no longer
disabling. 42 U.S.C. § 423(f).
accordance with the Act, the regulations provide for
termination of benefits if there has been medical improvement
in the recipient's impairment(s) that relates to the
recipient's ability to work, and if the recipient is now
able to engage in substantial gainful activity. 20 U.S.C.
§ 404.1594(a). The regulations define “medical
any decrease in the medical severity of your impairment(s)
which was present at the time of the most recent favorable
medical decision that you were disabled or continued to be
disabled. A determination that there has been a decrease in
medical severity must be based on changes (improvement) in
the symptoms, signs and/or laboratory findings associated
with your impairment(s).
20 U.S.C. § 404.1594(b)(1).
contrast to the five-step initial evaluation process for
initial disability evaluations, the Commissioner has
developed an eight-step sequential evaluation process to
determine whether a claimant's disability continues or
ends. 20 C.F.R. § 404.1594(f)(1-8); see also Hayden
v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004). Step
one requires the ALJ to determine if the claimant is engaging
in substantial gainful activity. Id. Step two
requires the ALJ to determine if the claimant has an
impairment or combination of impairments that meets or equals
a Listing.Id. Step three requires a
determination that there has been medical improvement as
shown by a decrease in medical severity. Id. At step
four, the ALJ must determine whether the medical improvement
is related to the ability to do work. Id. At step
five, if there has been no medical improvement, or if the
improvement is not related to the ability to work, the ALJ
must determine if an exception applies. Id. At step
six, if medical improvement is shown to be related to the
ability to do work (or if an exception applies), the ALJ must
determine if all current impairments are severe, including a
consideration of all current impairments and the impact of
the combination of these impairments. Id. If one or
more impairments are considered severe, at step seven, the
ALJ must assess the claimant's ability to perform
substantial gainful activity and whether the claimant could
perform past relevant work. Id. At step eight, if
the claimant cannot perform past relevant work, the ALJ must
determine if there is other work the claimant could perform.
Id. For each of the steps in a
termination-of-benefits review, the burden is on the
Commissioner. See Hayden, 374 F.3d at 991.
Background and Procedural History
Otero is a 47-year-old man with a high school education who
has a history of working as a robot engineer, a meter reader,
and performing meter repair. AR 20, 733-38. In a decision
dated March 8, 2011, the Social Security Administration (SSA)
found Mr. Ortega disabled as of December 7, 2008, due to a
combination of mental and physical limitations. AR 31-40. The
SSA conducted a continuing disability review and determined
that as of March 25, 2014, Mr. Ortega was no longer disabled.
AR 42-49. Mr. Ortega requested a hearing, and Administrative
Law Judge (ALJ) Eric Weiss conducted a hearing on April 26,
2016. AR 56, 729-55. The ALJ issued his unfavorable decision
on May 25, 2016. AR 10-22.
decision, the ALJ found that the medical evidence established
that as of March 25, 2014, Mr. Ortega had the severe
impairments of atrial fibrillation, ventricular tachycardia,
premature ventricular contractions, lumbar degenerative joint
disease, asthma, dysthymia, depression, and sleep apnea. AR
16. The ALJ further found that Mr. Ortega's obesity,
Gastroesophageal reflux disease (GERD), irritable bowel
syndrome, and alcohol disorder were non-severe. Id.
The ALJ then proceeded through the eight-step sequential
one, the ALJ found that Mr. Otero had not engaged in
substantial gainful activity since the date his disability
ended on March 25, 2014. AR 16. At step two, the ALJ found
that Mr. Ortega did not have an impairment or combination of
impairments that met or medically equaled a Listing. AR 17.
At step three, the ALJ found that as of March 25, 2014, Mr.
Ortega had shown medical improvement. Id. At step
four, the ALJ found that the medical improvement was related
to Mr. Ortega's ability to do work, and he therefore
continued to step six. Id. At step six, the ALJ found
that Mr. Ortega continued to have a severe impairment or
combination of impairments. Id. Accordingly, the ALJ
assessed Mr. Ortega's RFC and found:
Based on the impairments present as of March 25, 2014, [Mr.
Ortega] had the residual functional capacity to perform
sedentary work (lift 10 pounds occasionally, stand/walk for
two hours in an eight-hour workday and sit for six hours in
an eight-hour workday) as defined in 20 CFR 404.1567(a)
except he can never climb ladders, ropes or scaffolds. [Mr.
Otero] can occasionally stoop, crouch, kneel, crawl and climb
ramps or stairs. He can frequently balance but must avoid
more than occasional exposure to unprotected heights,
dangerous moving machinery, excessive vibration, and extreme
cold. The claimant is able to understand, remember and carry
out detailed but not complex instructions and make
commensurate work-related decisions and adjust to routine
changes in [the] work ...