United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Social Security
Administrative Record (Doc. 11) filed June 29, 2017, in
support of Plaintiff Dennette Miera Gomez's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claim for Title II disability
insurance benefits and Title XVI supplemental security income
benefits. On September 8, 2017, Plaintiff filed her Motion to
Reverse and Remand For A Rehearing With Supporting Memorandum
(“Motion”). (Doc. 18.) The Commissioner filed a
Response in opposition on October 26, 2017 (Doc. 20), and
Plaintiff filed a Reply on November 13, 2017. (Doc. 22.)
Having been granted leave of the Court, the Commissioner
filed a Surreply on November 28, 2017. (Doc. 24.) The Court
has jurisdiction to review the Commissioner's final
decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the
applicable law and being fully advised in the premises, the
Court finds the Motion is well taken and is
Background and Procedural Record
Dennette Miera Gomez (“Ms. Gomez”) alleges that
she became disabled on July 1, 2011, at the age of thirty
because of migraines, posttraumatic stress syndrome
(“PTSD”), anxiety, and depression. (Tr. 208,
211.) Ms. Gomez completed the twelfth grade in
1999, and has worked as a gas station cashier, home
healthcare provider, and call center representative. (Tr.
212, 213, 226-30.) Ms. Gomez reported she stopped working on
July 1, 2011, due to her medical conditions. (Tr. 212.)
August 15, 2013, Ms. Gomez filed an application for Social
Security Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (the
“Act”), 42 U.S.C. § 401 et seq.
(Tr. 182-83.) She also filed an application for Supplemental
Security Income (“SSI”) under Title XVI of the
Act, 42 U.S.C. § 1381 et seq. (Tr. 184-87.) Ms.
Gomez's applications were initially denied on October 17,
2013. (Tr. 68-78, 79-89, 90, 91, 120-24.) They were denied
again at reconsideration on January 16, 2014. (Tr. 92-103,
104-15, 116, 117, 128-32.) On February 18, 2014, Ms. Gomez
requested a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 134-35.) The ALJ conducted a
hearing on June 10, 2015. (Tr. 30-67.) Ms. Gomez appeared in
person at the hearing with non-attorney representative John
Bishop.(Id.) The ALJ took testimony from
Ms. Gomez (Tr. 36-60), and an impartial vocational expert
(“VE”), Nicole King (Tr. 60-66). On July 15,
2015, ALJ Eric Weiss issued an unfavorable decision. (Tr.
12-25.) On November 30, 2016, the Appeals Council issued its
decision denying Ms. Gomez's request for review and
upholding the ALJ's final decision. (Tr. 1-3.) On
February 2, 2017, Ms. Gomez timely filed a Complaint seeking
judicial review of the Commissioner's final decision.
Disability Determination Process
individual is considered disabled if 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) (pertaining
to disability insurance benefits); see also 42
U.S.C. § 1382(a)(3)(A) (pertaining to supplemental
security income disability benefits for adult individuals).
The Social Security Commissioner has adopted the familiar
five-step sequential analysis to determine whether a person
satisfies the statutory criteria as follows:
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful
activity.” If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her
(2) At step two, the ALJ must determine the severity of the
claimed physical or mental impairment(s). If the claimant
does not have an impairment(s) or combination of impairments
that is severe and meets the duration requirement, she is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listing described in Appendix
1 of the regulations, the ALJ must determine at step four
whether the claimant can perform her “past relevant
work.” Answering this question involves three phases.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). First, the ALJ considers all of the relevant medical
and other evidence and determines what is “the most
[claimant] can still do despite [her physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). This is called the claimant's residual
functional capacity (“RFC”). Id.
§§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ
determines the physical and mental demands of claimant's
past work. Third, the ALJ determines whether, given
claimant's RFC, the claimant is capable of meeting those
demands. A claimant who is capable of returning to past
relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past
relevant work, the Commissioner, at step five, must show that
the claimant is able to perform other work in the national
economy, considering the claimant's RFC, age, education,
and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however,
the Commissioner is able to make the required showing, the
claimant is deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th
Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005). The claimant has the initial
burden of establishing a disability in the first four steps
of this analysis. Bowen v. Yuckert, 482 U.S. 137,
146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show
that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is
disabled or not disabled at any point in the five-step review
is conclusive and terminates the analysis. Casias v.
Sec'y of Health & Human Serv., 933 F.2d
799, 801 (10th Cir. 1991).
Standard of Review
Court must affirm the Commissioner's denial of social
security benefits unless (1) the decision is not supported by
“substantial evidence” or (2) the ALJ did not
apply the proper legal standards in reaching the decision. 42
U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004); Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004); Casias, 933 F.2d at 800-01. In making these
determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the
agency.'” Bowman v. Astrue, 511 F.3d 1270,
1272 (10th Cir. 2008). A decision is based on substantial
evidence where it is supported by “relevant evidence .
. . a reasonable mind might accept as adequate to support a
conclusion.” Langley, 373 F.3d at 1118. A
decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record[, ]”
Langley, 373 F.3d at 1118, or “constitutes
mere conclusion.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). The agency
decision must “provide this court with a sufficient
basis to determine that appropriate legal principles have
been followed.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005). Therefore, although
an ALJ is not required to discuss every piece of evidence,
“the record must demonstrate that the ALJ considered
all of the evidence, ” and “the [ALJ's]
reasons for finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
made his decision that Ms. Gomez was not disabled at step
five of the sequential evaluation. (Tr. 23-25.) Specifically,
the ALJ determined that Ms. Gomez met the insured status
requirements of the Social Security Act through December 31,
2015, and that Ms. Gomez had not engaged in substantial
gainful activity since July 1, 2011. (Tr. 17.) He found that
Ms. Gomez had the following severe impairments: panic
disorder without agoraphobia, depressive disorder not
otherwise specified, psychotic disorder not otherwise
specified, attention deficit hyperactivity disorder,
borderline personality disorder, mood disorder, and
posttraumatic stress disorder. (Id.) The ALJ,
however, determined that Ms. Gomez's impairments did not
meet or equal in severity one the listings described in
Appendix 1 of the regulations. (Tr. 18-19.) As a result, the
ALJ proceeded to step four and found that Ms. Gomez had the
residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional
she can understand, remember and carry out simple
instructions and make commensurate work related decisions,
but not at a production rate pace. The claimant can deal with
routine changes in work setting; maintain concentration,
persistence and pace for 2 hours at a time during an 8-hour
workday, with normal breaks; and have occasional interaction
with supervisors, co-workers and the public.
(Tr. 19.) The ALJ then determined at step five that
considering Ms. Gomez's age, education, work experience,
and RFC, there were jobs that existed in significant numbers
in the national economy that the claimant could perform. (Tr.
support of her Motion, Ms. Gomez argues that (1) the ALJ
improperly rejected the opinion of treating nurse
practitioner Nicholas Farrey; and (2) the ALJ's decision
does not include a function-by-function assessment of Ms.
Gomez's mental limitations. In her Reply, Ms. Gomez
further argues that the ALJ's reference to a
“production rate pace” is not a recognized
work-related mental limitation. Specifically, Ms. Gomez asserts
that the ALJ failed to analyze Nurse Farrey's opinion
regarding her ability to appropriately respond to normal work
pressure and changes in a routine work setting. (Doc. 18 at
10-12.) She also asserts that the ALJ's mental RFC only
addressed the frequency of Ms. Gomez's ability to
interact with co-workers, supervisors and the public,
i.e., occasionally, but did not address the
appropriateness or quality of her interactions. (Id.
reasons discussed below, the Court finds that the ALJ's
reasons for according only some weight to NP Farrey's
medical source statements are not supported by substantial
evidence, and that the ALJ's mental RFC failed to
properly account for Ms. Gomez's limitations in
responding appropriately to supervisors, coworkers and the
Relevant Medical History
Presbyterian Medical Group
John Guttmann, M.D.
December 23, 2010, Ms. Gomez presented to John Guttmann,
M.D., of Presbyterian Medical Group with complaints of
sinusitis and anxiety. (Tr. 321-22.) Dr. Guttman prescribed
medication for sinusitis and counseled Ms. Gomez regarding
her anxiety. (Tr. 322.) Ms. Gomez returned on April 28, 2011,
with complaints of migraines, allergies, anxiety, and
depression. (Tr. 279-84.) Dr. Guttmann assessed, inter
alia, panic attacks and prescribed Citalopram and
Trazamine. (Tr. 283.) On May 19, 2011, Ms. Gomez saw Dr.
Guttman again for ongoing anxiety, sinus problems, and
migraines. (Tr. 285-90.) Dr. Guttman assessed panic attacks,
counseled Ms. Gomez on her panic attacks and anxiety, and
prescribed Trazadone to aid with her sleep. (Tr. 289.) Ms.
Gomez returned to see Dr. Guttmann next on January 28, 2013,
for, inter alia, anxiety. (Tr. 291-300.) Ms. Gomez
reported that she was “irritable with road rage,
impatient, yells a lot, [and] very frustrated with little
things.” She stated that she had problems controlling
her anger, and was facing battery and other criminal charges
that were serious. (Tr. 298.) Dr. Guttmann assessed
depressive disorder and referred Ms. Gomez for mental health
care. (Tr. 298-99.) Dr. Guttmann prescribed Paxil. (Tr. 299.)
Francisco P. Sanchez, Ph.D.
February 27, 2013, Ms. Gomez presented to Francisco P.
Sanchez, Ph.D., also with Presbyterian Medical Group, on
referral from Dr. Guttmann. (Tr. 301-07.) Ms. Gomez presented
with complaints of depression. (Tr. 303.) Ms. Gomez reported
a history of abuse and neglect, auditory hallucinations, and
ADHD. (Tr. 305.) Ms. Gomez stated she got in many fights
while in school and was kicked out of ninth grade for
fighting. (Tr. 304-05.) She stated she was treated for anger
management at Desert Hills and Hogares, and was prescribed
Ritalin and Wellbutrin. (Tr. 303, 305.) She stopped anger
management counseling and taking those prescribed medications
at age 14. (Tr. 303.) Ms. Gomez stated she has
trouble getting along with people, does not have much
patience, and that lately things were getting worse.
(Id.) She reported being on Paxil for a month, but
her anxiety was worse. (Id.) Finally, she told Dr.
Sanchez that she was taking Trazadone for sleep, but that she
had trouble falling asleep because her mind was racing.
(Id.) Dr. Sanchez performed a mental status exam and
indicated Axis I diagnoses of Depressive Disorder and R/O
Bipolar Disorder, and assessed a GAF score of
62.(Tr. 306.) Dr. Sanchez planned to engage in
counseling to decrease depressive symptoms and increase mood
stability, and to refer Ms. Gomez to a psychiatric provider
to be evaluated for appropriate medications. (Id.)
Gomez next saw Dr. Sanchez on April 18, 2013. (Tr. 308-13.)
She reported that she started a “Seeking Safety Group,
” and would be starting an anger management group,
through Partners in Wellness. (Tr. 311.) She stated she
stopped taking Paxil because it was making her anxiety worse
and caused her heart to race. (Id.) She told Dr.
Sanchez that someone had called CYFD on her, but that the
investigation had gone well. (Id.) She also told him
that her court date for pending battery charges was
approaching, that her husband would soon be getting out of
jail, and that her five year old son was taking Adderall for
ADHD. (Id.) Dr. Sanchez indicated Axis I diagnoses
of Depressive Disorder and R/O Bipolar Disorder, and assessed
a GAF score of 63. (Tr. 312.) Dr. Sanchez noted that Ms.
Gomez was getting counseling and psychiatric help at Partners
in Wellness, but that if she did not get a psychiatric
appointment by her next appointment, he would refer her to
Kaseman for evaluation of medications for possible bipolar
Gomez last saw Dr. Sanchez on May 23, 2013. (Tr. 314-18.) Ms.
Gomez reported that she remained anxious. (Tr. 317.) She told
Dr. Sanchez that her court date resulted in two years of
probation. (Id.) Dr. Sanchez facilitated an
appointment for Ms. Gomez with a psychiatrist at NM
Solutions, and provided her with handouts on anger management
and negative cognitions. (Id.) ...