United States District Court, D. New Mexico
ALBERT L. LOPEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, 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 to Agency for Rehearing, with Supporting
Memorandum [Doc. 17] (“Motion”), filed on
November 20, 2017. The Commissioner responded on January 16,
2018. [Doc. 19]. Plaintiff replied on February 12, 2018.
[Doc. 20]. 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 his 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 reweigh 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) (quoting
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); 20 C.F.R.
considering a disability application, the Commissioner is
required to use a five step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (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 (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);
Grogan, 399 F.3d at 1261. If he cannot show that his
impairment meets or equals a Listing, but he proves that he
is unable to perform his “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 his residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
applied for a period of disability and disability insurance
benefits on December 8, 2008. Tr. 110. He alleged a
disability-onset date of December 1, 2003. Id. His
claim has been denied three times by ALJs. Tr. 14-20 (first
denial dated February 12, 2010), 395-402 (second denial dated
October 25, 2013), 1038-57 (third denial dated January 13,
2016). This is his third appeal to federal court.
See Tr. 430-48 (first federal court remand order
dated June 5, 2012), 1105-21 (second federal court remand
order dated November 19, 2014). ALJ Ann Farris held the third
administrative hearing on October 21, 2015, in Albuquerque,
New Mexico. Tr. 1038, 1058-82. Plaintiff appeared with his
attorney. Id. The ALJ heard testimony from Plaintiff
and an impartial vocational expert (“VE”) Karen
N. Provine. Id.
Farris issued the third and most recent unfavorable decision
on January 13, 2016. Tr. 1050. She found that Plaintiff met
the insured status requirements through December 31, 2004.
Tr. 1040. At step one she found that Plaintiff had not
engaged in substantial gainful activity between his alleged
onset date (December 1, 2003) and his date last insured
(December 31, 2004). Tr. 1040-41. At step two, the ALJ found
that Plaintiff suffered from the following severe
impairments: “degenerative disc disease and partial
amputation of the left index and long fingers.” Tr.
1041. She further found that Plaintiff's diverticulosis,
hiatal hernia, dysthymia, post-traumatic stress disorder
(“PTSD”), and alcohol use were not severe.
three the ALJ determined that, through the date last insured,
none of Plaintiff's impairments, alone or in combination,
met or medically equaled a Listing. Tr. 1043-44. Because none
of Plaintiff's impairments met or medically equaled a
Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
1044-48. The ALJ found that:
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §] 404.1567(b); except that he must be
allowed to alternate standing and sitting every 30 minutes;
cannot use the left index finger or left third finger, of the
non-dominant hand, for fingering; should avoid sudden loud
noises; should have no interaction with the general public;
is limited to simple work related decisions with few work
place changes; and can have occasional and superficial
interaction with coworkers.
four the ALJ found that, through the date last insured,
Plaintiff was unable to return to any of his past relevant
work. Tr. 1048. The ALJ went on to consider Plaintiff's
RFC, age, education, work experience, and the testimony of
the VE at step five. Tr. 1048-50. 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 that request was denied on January 30, 2017. Tr.
1027-30. With an ...