United States District Court, D. New Mexico
DIANE L. GRIEGO MEDINA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of 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 or Remand [Doc. 15] (“Motion”), filed on
April 15, 2018. The Commissioner responded on June 19, 2018.
[Doc. 22]. Plaintiff replied on August 26, 2018. [Doc. 24].
The parties have consented to my entering final judgment in
this case. [Doc. 18]. Having meticulously reviewed the entire
record and being fully advised in the premises, the Court
finds that the Appeals Council erred in failing to consider
the opinion of Mitchell Binder, M.D. Accordingly, the Motion
will be granted, and the case will be remanded for further
proceedings. See 42 U.S.C. § 405(g) (2018)
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. FAA, 372 F.3d 1195, 1200 (10th Cir.
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) (quoting Byron v. Heckler, 742 F.2d 1232, 1235
(10th Cir. 1984)).
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. § 423(d)(1)(A) (2015); 20
C.F.R. § 404.1505(a) (2012).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520 (2012); Bowen v. Yuckert, 482
U.S. 137, 140 (1987). At the first four steps of the
evaluation process, the claimant must show: (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 (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. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If
she cannot show that her impairment meets or equals a
Listing, but she proves that she is unable to perform her
“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 her 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 February 28, 2014. Tr. 12. She alleged a
disability-onset date of August 20, 2011. Id. Her
claim was denied initially and on reconsideration.
Id. ALJ James Bentley held a hearing on November 3,
2016, in McAlester, Oklahoma. Tr. 12, 36-73. Plaintiff
appeared with her non-attorney representative by
videoconference from Albuquerque, New Mexico. Id.
The ALJ heard testimony from Plaintiff and an impartial
vocational expert (“VE”), Meslissa Brassfield.
issued his unfavorable decision on November 30, 2016. Tr. 25.
The ALJ found that Plaintiff met the insured status
requirements through December 31, 2016. Tr. 14. At step one
he found that Plaintiff had not engaged in substantial
gainful activity since her alleged onset date. Id.
At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: anxiety disorder not otherwise
specified (“NOS”), rule out generalized anxiety,
rule out panic disorder, adjustment disorder with mixed
anxiety and depressed mood, obesity, lumbago, and vertigo.
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 15-18. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 18-23. The ALJ found
that Plaintiff had “the [RFC] to perform medium work as
defined in 20 [C.F.R. §] 404.1567(c). She is capable of
remembering, understanding, and completing simple tasks with
routine supervision and would need to avoid unprotected
heights and dangerous moving machinery due to occasional
episodes of vertigo.” Tr. 18.
four the ALJ found that Plaintiff was not able to return to
her past relevant work. Tr. 23. Accordingly, the ALJ went on
to consider Plaintiff's RFC, age, education, work
experience, and the testimony of the VE at step five. Tr.
23-24. He 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 ...