United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for Payment of Benefits, or in the
Alternative, For Rehearing, With Supporting
Memorandum.” ECF No. 22. The motion is fully briefed.
See ECF No. 24 (Commissioner's Response) and 25
(Plaintiff's Reply). The Court held a telephonic hearing
on July 20, 2018, at which the parties provided additional
argument. See ECF No. 30 (transcript). Having
meticulously reviewed the entire record, the briefing, and
the information provided at oral argument, the Court
concludes that the motion should be granted in part and
denied in part and that the Administrative Law Judge's
(“ALJ's”) decision should be vacated and
remanded as it relates to the step three listings
was born June 26, 1969. Administrative R. (“AR”)
18. She earned her high school diploma and completed a
“few credit hours” of college. AR 41. Plaintiff
previously worked as a school board assistant, cashier, van
driver, and adult in-home care provider. AR 41-43. Plaintiff
filed an application for disability insurance benefits
(“DIB”) on May 6, 2013, and an application for
Supplemental Security Income (“SSI”) on June 12,
2013. AR 11. In both applications, Plaintiff alleged a
disability onset date of June 3, 2012. AR 11. The Social
Security Administration (“SSA”) denied both
claims initially and again upon reconsideration. AR 11.
Plaintiff requested a hearing, which was held by ALJ Benita
A. Lobo on March 19, 2015. AR 11. Plaintiff testified at the
hearing, as did vocational expert (“VE”) Kasey
Suggs. AR 11, 152. Plaintiff was represented by counsel. AR
4, 2015, ALJ Lobo issued her decision that Plaintiff was not
disabled from June 3, 2012, through the date of decision. AR
19. Plaintiff asked the SSA's Appeals Council
(“AC”) to review the ALJ's decision, but the
AC declined. AR 1. Plaintiff timely filed her appeal in this
Court. ECF No. 1.
alleges that the ALJ's conclusion that Plaintiff's
spine disorder did not meet Listing 1.04 was supported by
insufficient analysis and was contrary to the medical
evidence of record. See Pl.'s Mot. 7-11, ECF No.
22. Plaintiff also asserts that the ALJ erred by omitting
from the Residual Functional Capacity (“RFC”)
finding certain limitations based on Plaintiff's
depression and ability to climb stairs. Id. at
12-14. Plaintiff next argues that the ALJ's unfavorable
credibility determination was contrary to substantial
evidence and applicable law. Id. at 14-21. Finally,
Plaintiff contends that the ALJ erred by failing to clarify
the VE's testimony concerning (a) the number of full-time
jobs and part-time jobs in the national economy that
Plaintiff can perform, and (2) the occupation of office clerk
that the VE testified Plaintiff can perform. Id. at
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. 20 C.F.R. § 422.210(a) (2017). The
Court's review of that final agency decision is both
factual and legal. See 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)) (“The standard of review in a social
security appeal is whether the correct legal standards were
applied and whether the decision is supported by substantial
factual findings at the administrative level are conclusive
“if supported by substantial evidence.” 42 U.S.C.
§ 405(g) (2012). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” 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). An ALJ's 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. Substantial evidence does
not, however, require a preponderance of the evidence.
See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004)). 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
the review of the ALJ's legal decisions, the Court
reviews “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
if substantial evidence supports the ALJ's findings and
the correct legal standards were applied, the
Commissioner's decision stands and the plaintiff is not
entitled to relief. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2016). At the first three steps, the ALJ
considers the claimant's current work activity, the
medical severity of the claimant's impairments, and the
requirements of the Listing of Impairments. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt.
404, Subpt. P, App'x 1. If a claimant's impairments
are not equal to one of those in the Listing of Impairments,
then the ALJ proceeds to the first of three phases of step
four and determines the claimant's residual functional
capacity (“RFC”). See Winfrey, 92 F.3d
at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In
phase two, the ALJ determines the physical and mental demands
of the claimant's past relevant work, and in the third
phase, compares the claimant's RFC with the functional
requirements of her past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from
performing her past work, then she is not disabled. 20 C.F.R.
§§ 404.1520(f), 416.920(f). The claimant bears the
burden of proof on the question of disability for the first
four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482
U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d
1456, 1460 (10th Cir. 1987).
claimant cannot return to his or her past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is nonetheless capable of performing other
jobs existing in significant numbers in the national economy.
See Thomas, 540 U.S. at 24-25; see also Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)
(discussing the five-step sequential evaluation process in
THE ALJ'S DECISION
one, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31,
2017, and had not engaged in substantial gainful activity
since the alleged disability onset date of June 3, 2012. AR
13. At step two, the ALJ determined that Plaintiff had the
following severe impairments: sciatica, obesity, left knee
chondromalacia, and diabetes mellitus. AR 13. The ALJ
considered whether Plaintiff's depression was severe, but
concluded it was not because “[m]ental status
examinations have not identified any significant
psychological abnormalities[, ]” and although Plaintiff
initially reported depression in August 2013, she did not
seek treatment until August 2014. AR 14. The ALJ continued,
“Based on the evidence of record, the undersigned
concludes that this condition has no more than a minimal
effect on the claimant's ability to perform basic work
activities and hence is not a severe impairment.” AR
14. At step three, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR
14. The ALJ specifically considered Listings 1.02 and 1.04,
as well as “any other listed impairment.” AR 14.
four, the ALJ determined Plaintiff's RFC as follows:
After careful consideration of the entire record, the
undersigned finds that [Plaintiff] has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except no climbing of
ladders, ropes, scaffolds; no work on uneven/vibrating
surfaces, no work at heights; and occasional stooping,
kneeling, crouching, crawling. [Plaintiff] would need to
alternate sitting/standing every 10-15 minutes, for a few
minutes at a time without leaving her workstation, [and]
would require a cane to ambulate and elevate her feet under
of determining the RFC, the ALJ reviewed the medical evidence
in the record. AR 14-18. The ALJ considered a notation from
Dr. Annmarie Overholser, M.D., and the opinions of
non-examining state agency medical consultants Dr. Mark A.
Werner, M.D., and Dr. Kenneth Glass, M.D. AR
73-80, 83-92, 654. In addition, the ALJ reviewed medical
records from Gallup Indian Medical Center [AR 287-90,
381-405, 494-516], Tohatchi Health Center [AR 291-353,
355-56, 420-93, 636-47], Indian Health System Tohatchi [AR
357-380], Enchantment Physical Therapy [AR 617-35, 648-53],
Navajo Nation Division of Social Services [AR 654-55], and
New Mexico Orthopedics [AR 656-761]. The ALJ thoroughly
reviewed primary care records from June 2012 to August 2013
[AR 15] and physical therapy records from September 2012 to
February 2015 [AR 15]. The ALJ also discussed Plaintiff's
lumbar spine X-ray taken sometime between June 2012 and
September 2012,  Plaintiff's lumbar spine Computed
Tomography (“CT”) scan in October 2013, and
Plaintiff's lumbar Magnetic Resonance Imaging
(“MRI”) scan in July 2014. AR 15. Lastly, the ALJ
reviewed the hearing testimony of Plaintiff [AR 15-16] and
the VE [AR 19].
Annmarie Overholser, M.D.
Overholser was Plaintiff's primary care physician.
See AR 570. The ALJ assigned “some
weight” to Dr. Overholser's June 3, 2014, notation,
but opined that, with respect to Plaintiff's ability to
sit, stand, or walk for prolonged periods of time, “the
doctor's opinion on time, no more than 5-10 minutes,
contrasts sharply with the other evidence of record, and
[Plaintiff's] testimony at the hearing, which renders
this opinion less persuasive.” AR 16. Plaintiff saw Dr.
Overholser for appointments on December 17, 2013 [AR 482],
January 24, 2014 [AR 386, 448], June 3, 2014 [AR 457], and
July 2, 2014 [AR 510]. The Navajo Nation Division of Social
Services requested updated information regarding
Plaintiff's health status from Dr. Overholser since
Plaintiff received cash assistance from the Division, and a
requirement of that assistance was that Plaintiff work in an
approved work activity. AR 654. On June 3, 2014, Dr.
Overholser wrote that Plaintiff had “limited mobility
due to back [and] knee pain. [She] cannot sit for prolonged
periods of time (no more than 5-10 minutes).” AR 654.
Mark A. Werner, M.D.
Werner is a non-examining consultative physician who reviewed
Plaintiff's records on August 7, 2013. AR 78. The ALJ
assigned “some weight” to Dr. Werner's
opinion, but noted that “additional medical evidence
received [ ] after the date of the state agency determination
. . . justifies a conclusion that [Plaintiff's]
impairments are more limiting than was concluded by the state
agency consultants. Updated medical records show [Plaintiff]
ambulating with a walker and then cane . . . which would
reduce her to sedentary work.” AR 17. Dr. Werner
reviewed records from Tohatchi Health Center, Gallup Indian
Medical Center, a third party functional report from July 2,
2013, a headache questionnaire, Plaintiff's functional
report from July 1, 2013, and Plaintiff's work history.
AR 74-75. Dr. Werner concluded that Plaintiff had severe
impairments of “other and unspecified
arthropathies” and major joint dysfunction. AR. 76. Dr.
Werner also concluded that Plaintiff had non-severe diabetes
mellitus. AR 76. Dr. Werner considered Listing 1.02, but did
not consider Listing 1.04. AR 76. Dr. Werner found Plaintiff
to be credible. AR 76. Dr. Werner concluded that Plaintiff
had “more than a non-severe impairment and her
impairments do not meet or equal the listings[, ]” and
that Plaintiff had the capacity to perform light work. AR 75,
Werner opined that Plaintiff can occasionally lift or carry
twenty pounds, frequently lift or carry ten pounds, stand or
walk with breaks for a total of approximately six hours per
day, and could sit with normal breaks for a total of six
hours per day. AR 77. Dr. Werner also opined that Plaintiff
had an unlimited ability to push or pull, that Plaintiff
could only occasionally climb ramps or stairs, climb ladders,
ropes, and scaffolds, stoop, kneel, crouch, or crawl, and
that she could frequently balance. AR 77. Dr. Werner
concluded that Plaintiff was not otherwise functionally
limited. AR 77.
Kenneth Glass, M.D.
Glass is a non-examining consultative physician who reviewed
Plaintiff's records on November 25, 2013, upon
reconsideration. AR 92. The ALJ assigned “some
weight” to Dr. Glass's opinion, but noted, as with
Dr. Werner's opinion, that “additional medical
evidence” of Plaintiff's limited ability to
ambulate reduced her to sedentary work. AR 17.
what Dr. Werner reviewed, Dr. Glass reviewed additional
records from Indian Health System Tohatchi, another third
party function report, additional records from Tohatchi
Clinic, and evidence from Plaintiff. AR 84-85. With respect
to whether there had been any changes to Plaintiff's
condition since she last submitted a disability report,
Plaintiff wrote that on August 26, 2013, the dosage of
medication for her nerves increased, she was diagnosed with
sciatica, and she was referred to physical therapy. AR 84.
Plaintiff also wrote, “I still can't [sit] for long
periods of time without being in pain/not stand for long
periods of time which would limit me to any work or daily
activities.” AR 84.
Glass noted that Plaintiff was examined on July 24, 2013, and
presented with spine tenderness, slight discomfort with a
straight leg raise, and pain with pushing her leg back down.
AR 90. During that examination, Plaintiff had tender lateral,
knee, and thigh muscles, and her left leg was significantly
smaller in diameter than her right leg. AR 90. The examiner
could not palpate Plaintiff's left foot well due to a
tremor, and Plaintiff had decreased sensation to touch with
numbness on the sole of her lateral foot and toes. AR 90.
Plaintiff could not stand on her tiptoes or heels without
assistance. AR 90. Plaintiff was also unable to walk on her
tiptoes or heels. AR 90. Dr. Glass noted Plaintiff's
follow up appointment on August 26, 2013, during which
Plaintiff reported that her back pain was better since she
began taking Neurontin and that she still had “some
sciatica and weakness” but her pain and function were
better. AR 90. Plaintiff walked daily with a walker and was
also doing exercise she learned from a “boot camp
guy.” AR 90.
Glass reviewed Plaintiff's activities of daily living as
of September 2013. AR 90-91. Plaintiff could care for herself
and her children, but needed assistance with putting on her
socks and shoes. AR 90-91. Plaintiff reported that she could
cook simple meals and perform light tasks around the house,
and that she visited family and friends. AR 91. Plaintiff
also described being able to walk approximately 100 to 200
feet using a walker or cane and a knee brace. AR 91. Dr.
Glass concluded that Plaintiff “should be able to
perform” within the RFC he described. AR 91.
Glass generally affirmed Dr. Werner's findings and
conclusions, except that Plaintiff had limited ability to
push and pull in both lower extremities, and that Plaintiff
“is limited to occasional ambulation on unlevel
ground.” AR 89. Like Dr. Werner, Dr. Glass considered
Listing 1.02, but did not consider Listing 1.04. AR 88. Dr.
Glass also concluded that Plaintiff had environmental