United States District Court, D. New Mexico
MARK A. MCAULIFFE, JR.,, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,, Defendant.
MEMORANDUM OPINION AND ORDER 
KHALSA UNITED STATES MAGISTRATE JUDGE.
THIS MATTER is before the Court on the
Social Security Administrative Record (Doc. 16) filed
November 14, 2017, in support of Plaintiff Mark
McAuliffe'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 March 16,
2018, Plaintiff filed his Motion to Reverse and Remand for
Payment of Benefits, or in the Alternative, for Rehearing
With Supporting Memorandum (“Motion”). (Doc. 23.)
The Commissioner filed a Response in opposition on May 10,
2018 (Doc. 24), and Plaintiff filed a Reply on May 30, 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 well
taken and is GRANTED.
Background and Procedural Record
Mark Mcauliffe (“Mr. Mcauliffe”) alleges that he
became disabled on November 10, 2008, at the age of
twenty-five because of a fractured disc in his lower back,
numbness and tingling in left leg, learning disability,
mental issues, attention-deficit/ hyperactivity disorder, and
dyslexia. (Tr. 194, 725.) Mr. Mcauliffe completed the ninth
grade in 1997, and worked as a fast food restaurant cook,
residential construction framer, swimming pool construction
laborer, landscaping company laborer, and tile supply store
delivery person. (Tr. 195, 726, 733-40.) Mr. Mcauliffe
reported he stopped working on August 31, 2008, due to his
medical conditions. (Tr. 725.)
December 18, 2008, Mr. Mcauliffe protectively filed an
application for Supplemental Security Income
(“SSI”) under Title XVI of the Act, 42 U.S.C.
§ 1381 et seq. (Tr. 161-69.) Mr. McAuliffe's
application was denied initially and at reconsideration. (Tr.
62, 63, 64-66, 72-75.) On June 28, 2010, Mr. Mcauliffe
requested a hearing before an Administrative Law Judge
(“ALJ”). (Tr. 76-78.) ALJ Michelle E. Lindsay
conducted a hearing on May 24, 2012. (Tr. 24-61.) On August
3, 2012, ALJ Lindsay issued an unfavorable decision. (Tr.
9-19.) On November 7, 2013, the Appeals Council issued its
decision denying Mr. McAuliffe's request for review and
upholding the ALJ's final decision. (Tr. 1-6.) On January
8, 2014, Mr. Mcauliffe timely filed a Complaint seeking
judicial review of the Commissioner's final decision.
(USDC NM Civ. No. 14-25 SMV, Doc. 1.) In the meantime,
however, on December 4, 2013, Mr. Mcauliffe filed a second
application for SSI. (Tr. 695-702.) On June 11, 2014, Mr.
Mcauliffe's second application was initially denied. (Tr.
557-67, 568, 603-06.) On January 2, 2015, it was denied at
reconsideration. (Tr. 569, 570-61, 611-14.) On April 6, 2015,
Magistrate Judge Stephan M. Vidmar remanded Mr.
Mcauliffe's case for further proceedings as to his first
application. (Id. at Doc. 22.) On May 7, 2015,
the Appeals Council entered an Order Remanding Case to
Administrative Law Judge. (Tr. 598.) Therein, the Appeals
Council instructed the ALJ as follows:
The claimant filed [a] subsequent claim for Title XVI
benefits on November 19, 2013. The Appeals Council's
action with respect to the current claim renders the
subsequent claim duplicate. Therefore, the Administrative Law
Judge will consolidate the claim files, create a single
electronic record and issue a new decision on the
consolidated claims (20 CFR 416.1452, HALLEX I-1-10-10). In
compliance with the above, the Administrative Law Judge will
offer the claimant the opportunity for a hearing, take any
further action needed to complete the administrative record,
will associate the claim files and issue a new decision on
the associated claims.
(Tr. 598.) ALJ Lillian Richter held a second administrative
hearing via videoconference on May 4, 2017. (Tr. 495-531.)
Mr. Mcauliffe appeared in person at the hearing with attorney
representative Mark Hendricks. (Id.) The ALJ took
testimony from Mr. Mcauliffe (Tr. 502-26), and an impartial
vocational expert (“VE”), Sandra Trost (Tr.
526-31). On May 31, 2017, ALJ Lindsay issued an unfavorable
decision. (Tr. 473-86.) Because this case had already been
remanded following judicial review, Mr. Mcauliffe timely
filed the instant action, rather than requesting review by
the Appeals Council, as permitted by 20 C.F.R. §
416.1484(d). (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. Mcauliffe was not disabled at step
five of the sequential evaluation. (Tr. 484-86.)
Specifically, the ALJ determined that Mr. Mcauliffe had not
engaged in substantial gainful activity since December 18,
2008, the date of his application. (Tr. 478.) She found that
Mr. Mcauliffe had severe impairments of degenerative disc
disease of the lumbar spine, lumbar spondylolysis, mild
degenerative disc disease of the thoracic spine,
radiculopathy of the lumbar region, dyslexia,
attention-deficit/hyperactivity disorder (ADHD), intermittent
explosive disorder, and chronic pain syndrome. (Id.)
The ALJ also found that Mr. Mcauliffe had nonsevere
impairments of hypertension, asthma, and cannabis dependence.
(Id.) The ALJ, however, determined that Mr.
Mcauliffe's impairments did not meet or equal in severity
one the listings described in Appendix 1 of the regulations.
(Tr. 479-80.) As a result, the ALJ proceeded to step four and
found that Mr. Mcauliffe had the residual functional capacity
to perform light work as defined in 20 C.F.R. 416.967(b). The
ALJ added that
[s]pecifically, the claimant can lift, carry, push and pull
20 pounds occasionally and 10 pounds frequently, can
stand/walk for 6 hours and sit for 6 hours in an 8 hour day.
The claimant can occasionally climb ramps and stairs; can
occasionally stoop, kneel, crouch, and crawl; can never
balance; can never climb ladders, ropes, and scaffolds;
should avoid exposure to vibration; is limited to simple,
routine, and repetitive work; is limited to ...