United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
Fashing. United States Magistrate Judge.
MATTER comes before the Court on plaintiff Maria
Hendrickson's Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum (Doc. 17), which was
fully briefed on January 23, 2018. Docs. 20, 21, 22. The
parties consented to my entering final judgment in this case.
Docs. 6, 8, 9. Having meticulously reviewed the entire record
and being fully advised in the premises, the Court finds that
the Appeals Council erroneously rejected additional evidence
submitted by Ms. Hendrickson. The Court therefore GRANTS Ms.
Hendrickson's motion and remands this case to the
Commissioner for proceedings consistent with this opinion.
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). 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).
“The failure 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) (internal quotation marks and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (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. A 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 the 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
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] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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); 20 C.F.R. § 404.1505(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) the claimant is not
engaged in “substantial gainful activity;” (2)
the claimant 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) the impairment(s) either meet or equal one
of the Listings  of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that 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. Id.
Background and Procedural History
Hendrickson, currently age 61, dropped out of school after
the tenth grade and worked as a cashier, at a call center,
and as a school custodian. AR 40-42, 165, 194. She filed an
application for disability insurance benefits on December 2,
2013, alleging disability since August 9, 2013 due to a
massive rotator cuff tear in her right shoulder, arrhythmia,
and high blood pressure. AR 165, 193. The Social Security
Administration (“SSA”) denied her claim initially
on November 27, 2013. AR 93-98. The SSA denied her claims on
reconsideration on August 28, 2014. AR 100-06. Ms.
Hendrickson requested a hearing before an ALJ. AR 107- 08. On
December 10, 2015, ALJ Eric Weiss held a hearing. AR 35-64.
ALJ Weiss issued his unfavorable decision on January 21,
2016. AR 18-34.
found that Ms. Hendrickson was insured for disability
benefits through December 31, 2018. AR 23. At step one, the
ALJ found that Ms. Hendrickson had not engaged in
substantial, gainful activity since August 9, 2013, her
alleged onset date. Id. Because Ms. Hendrickson had
not engaged in substantial gainful activity for at least
twelve months, the ALJ proceeded to step two. Id. At
step two, the ALJ found that Ms. Hendrickson had the
following severe impairments: bilateral rotator cuff tears,
status post-surgery; cervical degenerative change with
broad-based disc bulge at ¶ 5-C6; moderate central
stenosis; and right carpal tunnel syndrome. Id. The
ALJ found the following impairments to be non-severe:
“horizontal fracture of the humeral head; hypertension;
cardiac arrhythmia; right knee osteoarthritis; sciatica;
obstructive sleep apnea (OSA); diabetes mellitus; obesity;
right plantar calcaneal spur.” AR 23- 24. At step
three, the ALJ found that none of Ms. Hendrickson's
impairments, alone or in combination, met or medically
equaled a Listing. AR 24-25. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Ms.
Hendrickson's RFC. AR 25-28. The ALJ found that Ms.
Hendrickson had the RFC to perform light work
except the claimant is able to lift 20 pounds occasionally
and lift and carry 10 pounds frequently with the left upper
extremity; however, able to lift only 10 pounds occasionally
and lift and carry less than 10 pounds frequently with the
right upper extremity, and push and pull only 10 pounds
occasionally with bilateral upper extremities. She is able to
walk and stand for 6 hours per 8 hour workday and sit for 6
hour[s] per 8 hour workday with normal breaks. Never able to
climb ladders, ropes and scaffolds. Able to occasionally
stoop and crouch. Able to occasionally reach overhead with
the non-dominant left upper extremity and never any overhead
reaching with the dominant right upper extremity. Able to
frequently finger with the dominant right upper extremity.
Must avoid more than occasional exposure to unprotected
heights and moving machinery.
four, the ALJ concluded that Ms. Hendrickson was able to
perform her past relevant work as an order clerk, and
therefore was not disabled. AR 28. The ALJ alternatively
concluded that Ms. Hendrickson was not disabled at step five,
concluding that she still could perform jobs that exist in
significant numbers in the national economy-such as credit
card clerk, receptionist, and information clerk. AR 29.
Hendrickson requested review by the Appeals Council, and
submitted additional evidence. AR 2, 5, 15-16. The Appeals
Council accepted part of the additional evidence-a brief from
Ms. Hendrickson's prior counsel-and made it part of the
record. AR 5, 258. The Appeals Council rejected the other
part of the additional evidence-a medical source statement
from Dr. John Anderson-after finding that it was not
chronologically pertinent. AR 2, 7-8. The Appeals Council
denied Ms. Hendrickson's request for review on March 3,
2017. AR 1-6. Ms. Hendrickson timely filed her appeal to this
Court on April 28, 2017. Doc. 1.