United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff Yolanda
Alderete's Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum (the
“Motion”), (Doc. 18), filed May 14, 2018;
Defendant Commissioner Nancy A. Berryhill's Brief in
Response to Plaintiff's Motion to Reverse and Remand the
Agency's Administrative Decision (the
“Response”), (Doc. 21), filed July 13, 2018; and
Ms. Alderete's Reply in Support of Plaintiff's
Motion to Reverse and Remand for a Rehearing (the
“Reply”), (Doc. 22), filed July 27, 2018.
Alderete filed an application for disability insurance
benefits on September 17, 2013, alleging disability beginning
September 10, 2010. (Administrative Record “AR”
51). Ms. Alderete claimed she was limited in her ability to
work due to diabetes type 2, neuropathy in her feet, vision
issues, a broken collarbone, arthritis in her shoulder, and
issues with her range of motion. (AR 188). Ms. Alderete's
application was denied initially on September 19, 2014, and
upon reconsideration on December 18, 2014. (AR 51). A request
for a hearing was filed, and a hearing was held on September
1, 2016, before Administrative Law Judge (“ALJ”)
James Bentley. (AR 69). Ms. Alderete and Bonnie Ward, an
impartial vocational expert (“VE”), testified at
the hearing, and David R. Mika, an attorney, represented Ms.
Alderete at the hearing. (AR 69-90).
November 2, 2016, the ALJ issued his decision, finding Ms.
Alderete not disabled at any time between her alleged
disability onset date through December 31, 2015, which is the
date she was last insured. (AR 36). On December 16, 2016, Ms.
Alderete requested review by the Appeals Council, (AR 171),
and, on April 26, 2017 and May 1, 2017, Ms. Alderete
submitted additional medical evidence to the Appeals Council,
(AR 13-29). On September 25, 2017, the Appeals Council denied
Ms. Alderete's request for review, making the ALJ's
decision the Commissioner's final decision for purposes
of this appeal. (AR 1-6).
Alderete, who is now represented by Michael Armstrong, raises
the following arguments on appeal of the Commissioner's
decision: (1) the Appeals Council failed to properly consider
the medical evidence submitted after the hearing before the
ALJ; (2) the ALJ failed to develop the record regarding Ms.
Alderete's physical impairments due to fibromyalgia, and
her mental impairments due to depression and anxiety; and (3)
the ALJ failed to account for Ms. Alderete's subjective
allegations of pain and other symptoms. (Doc. 18 at 12-26).
The Court has reviewed the Motion, the Response, the Reply,
and the relevant law. Additionally, the Court has
meticulously reviewed the administrative record. Because the
Appeals Council erred in failing to consider the additional
evidence Ms. Alderete submitted, the Court finds that Ms.
Alderete's Motion is well-taken and should be
GRANTED and this case
REMANDED for further proceedings.
Standard of Review
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); 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). The Commissioner's
“failure to apply the correct legal standards, or show
. . . that she has done so, are also grounds for
reversal.” Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996) (citing Washington v. Shalala,
37 F.3d 1437, 1439 (10th Cir. 1994)). A court should
meticulously review the entire record but should neither
re-weigh the evidence nor substitute its judgment for the
Commissioner's. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court's review is
limited to the Commissioner's final decision, 42 U.S.C.
§ 405(g), which is generally the ALJ's decision,
rather than the Appeals Council's denial of review.
O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.
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. 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. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
must include “anything that may undercut or detract
from the ALJ'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
ALJ]'s 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. 2004)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
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), 42 U.S.C. § 1382c(a)(3)(A) (2004);
20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In
order to determine whether a claimant is disabled, the
Commissioner follows a five-step sequential evaluation
process (“SEP”). Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (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) 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), 416.920(a)(4)(i-iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the
ALJ determines the claimant cannot engage in past relevant
work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant
is able to perform other work in the national economy,
considering the claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.
Alderete applied for disability insurance benefits due to
diabetes type 2, neuropathy in her feet, vision issues, a
broken collarbone, arthritis in her shoulder, and issues with
her range of motion. (AR 188). At step one, the ALJ
determined that Ms. Alderete met the insured status
requirements through December 31, 2015, and found that she
had not engaged in substantial gainful activity from
September 10, 2010, the alleged onset date, through the date
she was last insured. (AR 53). At step two, the ALJ concluded
that Ms. Alderete was severely impaired by: insulin-dependent
type II diabetes mellitus, polyneuropathy, minor degenerative
changes of the lumbar spine, plantar fascial fibromatosis,
pre-ulcerative calluses, and obesity. (AR 53-55). At step
three, the ALJ determined that none of Ms. Alderete's
impairments, solely or in combination, equaled one of the
listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526. (AR 55-56).
four, the ALJ found that, through the date she was last
insured, Ms. Alderete had the RFC to perform less than the
full range of sedentary work as defined in 20 C.F.R. §
404.1567(b). (AR 57). The ALJ additionally found that Ms.
Alderete can: lift and/or carry 10 pounds occasionally and
less than 10 pounds frequently; stand and/or walk for about
two hours of an eight-hour workday; sit for about six hours
of an eight-hour workday; occasionally climb ramps and
stairs, but never ladders, ropes, or scaffolds; and
occasionally kneel, crouch, and crawl. Id. The ALJ
further limited Ms. Alderete to work where she is “able
to avoid ordinary workplace ...