United States District Court, D. New Mexico
CORNITA M. APACHITO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before me on Plaintiff's Motion to Reverse or
Remand Administrative Agency Decision [Doc. 33] and
Memorandum Brief in Support [Doc. 34] (“Motion”),
filed on April 23, 2018. The Commissioner responded on June
7, 2018. [Doc. 36]. Plaintiff replied on July 17, 2018. [Doc.
37]. The Honorable Judith C. Herrera, United States District
Judge, referred this matter to me for analysis and a
recommended disposition. [Doc. 19]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that, considering the entire
administrative record, the Administrative Law Judge's
(“ALJ”) findings at step three are not supported
by substantial evidence. Accordingly, I recommend that the
Motion be granted and that the case be remanded for further
proceedings. See 42 U.S.C. § 405(g) (sentence
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) (citing Hamilton v. Sec'y of Health &
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)).
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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). A court should
meticulously review the entire record but should neither
re-weigh the evidence nor substitute its judgment for that of
the Commissioner. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. 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.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214. 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. § 1382c(a)(3)(A); 20 C.F.R.
light of this definition for disability, a five-step
sequential evaluation process has been established for
evaluating a disability claim. 20 C.F.R. § 416.920;
Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the
first four steps of the evaluation process, the claimant has
the burden to show that: (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 either (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.
§ 416.920(a)(4)(i-iv); Grogan, 399 F.3d at
1261. At the fifth step of the evaluation process, the burden
of proof shifts to the Commissioner 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 supplemental security income on November 8, 2012.
Tr. 15. She alleged a disability-onset date of July 28, 2011.
Id. Her claim was denied initially and on
reconsideration. Id. ALJ Frederick Upshall, Jr.,
held the first of three hearings in Albuquerque, New Mexico,
on June 25, 2014. Tr. 15, 35-46. Plaintiff appeared in person
and pro se. Id. The hearing was continued to allow
for the submission of missing medical records and to allow
Plaintiff to find representation. Id. ALJ Upshall
held the second hearing in Albuquerque on December 9, 2014.
Tr. 15, 47-59. Plaintiff appeared in person with Ione
Gutierrez, an attorney. Tr. 47. The second hearing, however,
was also postponed to allow for the submission of missing
medical records. Tr. 58-59. ALJ Upshall held the third and
final hearing in Albuquerque on June 2, 2015. Tr. 15, 60-83.
Plaintiff appeared in person with Zachary Green, an attorney.
Id. The ALJ heard testimony from Plaintiff and an
impartial vocational expert (“VE”) Patricia
issued an unfavorable decision on September 15, 2015. Tr. 27.
At step one the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 2, 2012. Tr. 17.
At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: rheumatoid arthritis, diabetes
mellitus, morbid obesity, osteoarthritis, degenerative joint
disease, depression, and borderline intellectual functioning.
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 17-21. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 21-25. The ALJ found
that Plaintiff had
the [RFC] to perform light work as defined in 20 [C.F.R.
§] 416.967(b) with the ability to lift and carry up to
20 pounds occasionally and 10 pounds frequently; stand and/or
walk for six hours out of an eight-hour workday with normal
breaks; and sit for six hours out of an eight-hour workday
with normal breaks. Pushing and pulling is limited by these
exertional limitations. [Plaintiff] can never climb ladders,
ropes, or scaffolds. She can occasionally climb ramps and
stairs, stoop, crouch, kneel, and crawl. [Plaintiff] can
frequently reach in all directions, including overhead, with
the bilateral upper extremities. [Plaintiff] can perform
frequent handling and fingering with the bilateral upper
extremities. [Plaintiff] is limited to one- or two-step tasks
in an environment free of fast-past [sic] production
requirements involving only simple, work-related decisions