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. 16) filed November 27, 2017, in
support of Plaintiff Joseph Tsosie'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 XVI supplemental
security income benefits. On February 2, 2018, Plaintiff
filed his Motion to Reverse and Remand for Rehearing With
Supporting Memorandum (“Motion”). (Doc. 21.) The
Commissioner filed a Response in opposition on March 31, 2018
(Doc. 24), and Plaintiff filed a Reply on April 17, 2018.
(Doc. 25.) 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 not
well taken and is DENIED.
Background and Procedural Record
Joseph Tsosie (“Mr. Tsosie”) alleges that he
became disabled on June 9, 2012, at the age of forty-seven
because of spurs on his spine, right knee pain, left hip
dislocation, asthma, chipped elbows, arthritis to all joints,
stomach ulcer, vision problems, and memory loss. (Tr. 275,
432, 443.) Mr. Tsosie completed the ninth grade in
1984/1985, and was self-employed making dream catchers. (Tr.
444.) Mr. Tsosie reported he stopped working on February 1,
2007, due to his medical conditions. (Tr. 443.)
15, 2013, Mr. Tsosie protectively filed an application for
Supplemental Security Income (“SSI”) under Title
XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 178,
391-400.) Mr. Tsosie's application was initially denied
on February 28, 2014. (Tr. 274, 275-87, 303-06.) It was
denied again at reconsideration on August 13, 2014. (Tr. 288,
289-302, 309-12.) On August 27, 2014, Mr. Tsosie requested a
hearing before an Administrative Law Judge
(“ALJ”). (Tr. 313.) ALJ Ann Farris conducted a
hearing on September 18, 2015, but ended the hearing after
Mr. Tsosie decided that he wanted legal representation. (Tr.
233-39.) ALJ Eric Weiss conducted a second hearing on April
12, 2016. (Tr. 202-32.) Mr. Tsosie appeared in person at the
hearing with attorney representative Jonathan
Woods. (Id.) The ALJ took testimony from
Mr. Tsosie (Tr. 206-225), and an impartial vocational expert
(“VE”), Sandra Trost (Tr. 226-31). On May 12,
2016, ALJ Weiss issued an unfavorable decision. (Tr.
175-194.) On June 5, 2017, the Appeals Council issued its
decision denying Mr. Tsosie's request for review and
upholding the ALJ's final decision. (Tr. 1-6.) On August
3, 2017, Mr. Tsosie timely filed a Complaint seeking judicial
review of the Commissioner's final decision. (Doc. 1.)
Disability Determination Process
individual is considered disabled if 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) (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, he is not disabled regardless of his
(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, he 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 his “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 [his 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 his 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 Mr. Tsosie was not disabled at step
four of the sequential evaluation. (Tr. 192-93.)
Specifically, the ALJ determined that Mr. Tsosie had not
engaged in substantial gainful activity since July 15, 2013,
the date of his application. (Tr. 180.) He found that Mr.
Tsosie had severe impairments of osteoarthritis, lumbar spine
disc bulge, cervical spine compression deformity of C5,
asthma, obstructive sleep apnea, pain disorder with both
psychological and medical factors, somatoform disorder,
dependent personality disorder, and avoidant personality
disorder. (Id.) The ALJ also found that Mr. Tsosie
had nonsevere impairments of obesity, colonic diverticulosis,
gastroesophageal reflux disease (GERD), erythrocytosis, and
rule out factitious disorder. (Tr. 180-81.) The ALJ, however,
determined that Mr. Tsosie's impairments did not meet or
equal in severity one the listings described in Appendix 1 of
the regulations. (Tr. 181-83.) As a result, the ALJ proceeded
to step four and found that Mr. Tsosie had the residual
functional capacity to perform light work as defined in 20
C.F.R. 416.967(b) except that he was
able to lift 20 pounds occasionally and lift and/or carry 10
pounds frequently. His ability to push and pull is only
limited by his ability to lift and/or carry. He is able to
walk and stand for 6 hours in an 8-hour workday, with normal
breaks. He is able to sit for 6 hours per 8-hour workday,
with normal breaks. He is able to occasionally climb ramps
and stairs, but he can never climb ladders, ropes or
scaffolds. He can occasionally stoop, crouch, kneel and
crawl. He must avoid more than occasional exposure to extreme
cold and heat, humidity, unprotected heights, dangerous
moving machinery and pulmonary irritants, such as smoke,
dust, fumes, odors and gases. He is able to understand,
remember and carry out simple instructions, to make
commensurate work related decisions and to adjust to routine
changes in the work setting. He is able to interact
frequently with supervisors, co-workers and the public. He is
able to maintain concentration, persistence and pace for 2
hours at a time during the workday, with normal breaks.
(Tr. 183.) The ALJ further concluded at step four that Mr.
Tsosie was able to perform his past relevant work as an
assembler, small products. (Tr. 192.) Although the ALJ
determined that Mr. Tsosie was capable of performing his past
relevant work, the ALJ made alternative step five findings
that based on Mr. Tsosie's age, education, work
experience, RFC, and the testimony of the VE, there were jobs
that existed in significant numbers in the national economy
that Mr. Tsosie could perform. (Tr. 192-93.)
support of his Motion, Mr. Tsosie argues that (1) the ALJ
failed to develop the record by denying Mr. Tsosie's
counsel's request to obtain a second consultative
psychological examination that specifically included
intelligence and cognitive testing; and (2) the ALJ failed to
account for all the limitations assessed by examining
psychological consultant, Dr. Carl B. Adams, Ph.D. (Doc. 21
reasons discussed below, the Court finds there is no
Relevant Evidence Related to Mr. Tsosie's Mental
Carl B. Adams, Ph.D.
February 10, 2014, Mr. Tsosie presented to State agency
examining psychological consultant Carl B. Adams, Ph.D., for
a consultative mental status evaluation. (Tr. 775-78.) Dr.
Adams reviewed two medical reports related to Mr.
Tsosie's physical impairments,  and a Third-Party Functional
Report prepared by Georgia Begay, Mr. Tsosie's niece.
(Tr. 775.) Dr. Adams took various histories, including
personal, educational, vocational, marital and medical. (Tr.
776-77.) Mr. Tsosie reported, inter alia, that he
had completed the ninth grade and that his doctor told him
not to go to school anymore because of his health problems.
(Tr. 776.) As a result, Mr. Tsosie left school.
(Id.) Mr. Tsosie reported that he had not completed
a GED or pursued further education. (Id.) As for his
alleged memory loss, Mr. Tsosie reported to Dr. Adams that he
will forget where is going or why he was going into a room,
and forgets where he put something or what he was going to
do. (Tr. 777.) Mr. Tsosie reported that he never had problems
with depression or anxiety. (Id.)
mental status exam, Dr. Adams observed that Mr. Tsosie was
able to attend and concentrate, and make eye contact, and
that Mr. Tsosie expressed himself. (Tr. 776.) Dr. Adams noted
that Mr. Tsosie's mood was stable with mild flattening;
that his long and short-term recall were estimated in the
low-average range; that he was a reasonably good historian;
that his insight was grossly intact; that his judgment was
adequate; that he was cooperative; and that his stream of
thought was within normal limits. (Id.)
Adams' Axis I diagnoses included pain disorder with both
psychological and medical factors; Somatoform Disorder; and
rule out Factitious Disorder. (Tr. 778.) His Axis II
diagnoses included Dependent Personality Disorder and