United States District Court, D. New Mexico
PROPOSED FINDINGS & RECOMMENDED
MATTER is before the Court on Plaintiff's Motion to
Reverse or Remand Administrative Agecny [sic] Decision
(Doc. 22) filed on October 30, 2017. Having
considered the record, submissions of counsel, and relevant
law, the Court recommends that Plaintiff's motion be
I. Procedural History
September 12, 2013, Mr. Scott Johnson (Plaintiff)
protectively filed an application with the Social Security
Administration for Supplemental Security Income (SSI) under
Title XVI of the Social Security Act. See
Administrative Record (AR) at 13, 57. Plaintiff alleged a
disability onset date of January 1, 2008, but later amended
his alleged onset date to September 12, 2013. See AR
at 135, 145. Disability Determination Services (DDS)
determined that Plaintiff was not disabled both initially (AR
at 57-66) and on reconsideration (AR at 67-76). Plaintiff
requested a hearing with an Administrative Law Judge (ALJ) on
the merits of his SSI application. AR at 90.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 29-56. ALJ Barry
O'Melinn issued an unfavorable decision on March 8, 2016.
AR at 10-28. Plaintiff submitted a Request for Review of
Hearing Decision/Order to the Appeals Council (AR at 9),
which the council denied on March 7, 2017 (AR at 1-5).
Consequently, the ALJ's decision became the final
decision of the Commissioner. 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); see also 20 C.F.R. § 416.905(a).
The Commissioner must use a five-step sequential 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.” 20 C.F.R. § 404, Subpt. P, App. 1
§ 12.00(B); see also 20 C.F.R. §
416.945(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 the claimant 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. §
One of the process, ALJ O'Melinn found that Plaintiff
“has not engaged in substantial gainful activity since
September 12, 2013, the application date.” AR at 15
(citing 20 C.F.R. §§ 416.971-.976). At Step Two,
the ALJ concluded that Plaintiff “has the following
severe impairments: scoliosis of the spine and history of
Wilms' tumor.” AR at 15 (citing 20 C.F.R. §
416.920(c)). The ALJ found the following impairments are
non-severe: hypertension, fatigue, depression, and anxiety.
AR at 15-18.
Three, the ALJ found that Plaintiff “does 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 18 (citing 20 C.F.R. §§
416.920(d), 416.925, 416.926). At Step Four, the ALJ
thoroughly considered the evidence of record and found that
has the residual functional capacity to perform medium work
as defined in 20 [C.F.R. §] 416.967(c)[, ] except [he]
can understand, carry out, and remember simple instructions
and make commensurate work related decisions, and respond
appropriately to supervision, coworkers and work situations.
[Plaintiff] can deal with routine changes in work setting,
maintain concentration[, ] persistence and pace for up to and
including two hours at a time with normal breaks throughout
the workday and is suitable for jobs involving work primarily
with things and not people.
AR at 18-19.
O'Melinn concluded that Plaintiff has no past relevant
work (AR at 21 (citing 20 C.F.R. § 416.965)), but he is
able to perform work as a Cleaner (Hospital Setting), Dining
Room Attendant/Busser, and Hand Packager. AR at 22. The ALJ
ultimately determined that Plaintiff “has not been
under a disability, as defined in the Social Security Act,
since September 12, 2013 . . . .” AR at 23 (citing 20
C.F.R. § 416.920(g)).
Court must “review the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds
for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161, 1166 (citation omitted). “Substantial evidence is
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Lax, 489 F.3d at 1084 (quoting Hackett, 395
F.3d at 1172 (internal quotation omitted)). “It
requires more than a scintilla, but less than a
preponderance.” Id. (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal
quotation omitted) (alteration in original)). The Court will
“consider whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases, but [it] will not reweigh the
evidence or substitute [its] judgment for the
Commissioner's.” Id. (quoting
Hackett, 395 F.3d at 1172 (internal quotation marks
and quotations omitted)).
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial evidence.”
Id. (quoting Zoltanski, 372 F.3d at 1200
(internal quotation omitted)). The Court “may not
‘displace the agenc[y's] choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
novo.'” Id. (quoting Zoltanski,
372 F.3d at 1200 (internal quotation omitted)).