United States District Court, D. New Mexico
VICTORIA M. RAMIREZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse or Remand (Doc. 16) filed on March 11, 2018.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b),
the parties have consented to me serving as the presiding
judge and entering final judgment. See Docs. 7,
13, 14. Having considered the record,
submissions of counsel, and relevant law, the Court finds
Plaintiff's motion is not well-taken and will be denied.
November 1, 2013, Ms. Victoria Ramirez (Plaintiff)
protectively filed an application with the Social Security
Administration for Supplemental Security Income under Title
XVI of the Social Security Act. Administrative
Record (AR) at 169-75. Plaintiff alleged a
disability onset date of May 16, 1995, which she later
amended to November 1, 2013. AR at 41, 169. Disability
Determination Services (DDS) determined that Plaintiff was
not disabled both initially (AR at 69-77) and on
reconsideration (AR at 78-89). Plaintiff requested a hearing
with an Administrative Law Judge (ALJ) on the merits of her
SSI application. AR at 110-12.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 36-67. ALJ
Michelle K. Lindsay issued an unfavorable decision on June
15, 2016. AR at 17-35. Plaintiff submitted a Request for
Review of Hearing Decision/Order to the Appeals Council (AR
at 103-05), which the Council denied on June 19, 2017 (AR at
1-6). Consequently, the ALJ's decision became the final
decision of the Commissioner. See Doyal v. Barnhart,
331 F.3d 758, 759 (10th Cir. 2003).
Applicable Law and the ALJ's Findings
claimant seeking disability benefits 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); see also 20 C.F.R. § 416.905(a).
The Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R.
§ 416.920(a)(4); see also Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009).
claimant has the burden at the first four steps of the
process to show: (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 (3) her
impairment(s) meet or equal one of the listings in Appendix
1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant's residual functional capacity
(RFC), she is unable to perform her past relevant work. 20
C.F.R. § 416.920(a)(4)(i-iv); see also Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)
(citations omitted). “RFC is a multidimensional
description of the work-related abilities [a claimant]
retain[s] in spite of her medical impairments.” 20
C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see
also 20 C.F.R. § 416.945(a)(1). If the claimant
meets “the burden of establishing a prima facie case of
disability[, ] . . . the burden of proof shifts to the
Commissioner at step five to show that the claimant retains
sufficient . . . RFC to perform work in the national economy,
given [her] age, education, and work experience.”
Grogan, 399 F.3d at 1261 (citing Williams v.
Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988)
(internal citation omitted)); see also 20 C.F.R.
One of the process, ALJ Lindsay found that Plaintiff
“has not engaged in substantial gainful activity since
November 1, 2013, the application date . . . .” AR at
22 (citing 20 C.F.R. § 416.971-976). At Step Two, the
ALJ concluded that Plaintiff “has the following severe
impairments: osteoarthritis of the right knee and ankle;
lumbar and cervical strain; headaches; metatarsalgia of the
right foot; hypertension; obesity; and, major
depression.” AR at 22 (citing 20 C.F.R. §
416.920(c)). The ALJ found that while Plaintiff has
“diagnoses of duodenal ulcer and status post treatment
for Heliobacter pylori bacterial infection[, ] . . . [t]here
is no evidence to support a finding that these conditions,
whether considered singly or in combination[, ] significantly
impair [Plaintiff's] ability to engage in work
activity” and are not severe. AR at 22-23.
Three, the ALJ found that Plaintiff “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 23 (citing 20 C.F.R. §§ 416.920(d),
416.925, 416.926). At Step Four, the ALJ thoroughly
considered the evidence of record and found that Plaintiff
has the residual functional capacity to perform less than the
full range of light work as defined in 20 [C.F.R. §]
416.967(b). Specifically, the claimant can lift, carry, push,
and pull twenty pounds occasionally and ten pounds
frequently. She can stand and/or walk for six hours out of an
eight-hour workday with normal breaks, and sit for six hours
out of an eight-hour workday with normal breaks. She can
occasionally climb stairs and ramps, balance, crouch, kneel,
or crawl, and can frequently stoop. She must avoid more than
occasional exposure to extreme cold, and must avoid
unprotected heights and more than moderately loud work
environments. She is able to understand, remember, and carry
out simple instructions, and is able to maintain attention
and concentration to perform simple tasks for two hours at a
time without requiring redirection to task. She can have only
occasional contact with the general public, and superficial
interactions with co-workers and supervisors. She requires
work involving no more than occasional change in the routine
AR at 25.
Lindsay concluded that Plaintiff has no past relevant work
(AR at 29 - citing 20 C.F.R. § 416.965), but she is able
to perform work as a photocopy machine operator, marker, and
order caller. AR at 30. The ALJ ultimately determined that
Plaintiff “has not been under a disability, as defined
in the Social Security Act, since November 1, 2013.” AR
at 30 (citing 20 C.F.R. § 416.920(g)).
Court must “review the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds
for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161, 1166 (citation omitted). “Substantial evidence is
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Lax, 489 F.3d at 1084 (quoting Hackett, 395
F.3d at 1172 (internal quotation omitted)). “It
requires more than a scintilla, but less than a
preponderance.” Id. (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal
quotation omitted) (alteration in original)). The Court will
“consider whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases, but [it] will not reweigh the
evidence or substitute [its] judgment for the
Commissioner's.” Id. (quoting
Hackett, 395 F.3d at 1172 (internal quotation marks
and quotations omitted)).
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial evidence.”
Id. (quoting Zoltanski, 372 F.3d at 1200
(internal quotation omitted)). The Court “may not
‘displace the agenc[y's] choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
novo.'” Id. (quoting Zoltanski,
372 F.3d at 1200 (internal quotation omitted)).
sets forth four issues in her motion. Plaintiff argues that
the ALJ erred in: (1) failing “to properly weigh the
opinions of consultative examiner, Dr. Murphy”
(Doc. 16 at 8); (2) finding her gastrointestinal
issues non-severe and failing to incorporate limitations into
Plaintiff's RFC from her non-severe impairments
(id. at 10); (3) performing an improper analysis of
the non-examining agency consultant, Dr. Chiang (id.
at 11); and (4) failing to use the two-step analysis required
by SSR 16-3p to evaluate Plaintiff's symptoms
(id. at 13).
The Court finds no reversible error in the ALJ's analysis
of either Dr. Murphy's or Dr. Chiang's
Dr. Murphy's examination and opinion.
Finian J. Murphy, Ed. D., conducted a mental status
examination at the request of Disability Determination
Services on April 29, 2014. See AR at 395. Dr.
did not receive any of Plaintiff's health records to
review. AR at 395. From his interview with Plaintiff, Dr.
Murphy reported that she is a high school graduate with trade
school certificates in Radio and TV, Police Science, and
Graphic Arts. AR at 396. “[S]he last worked in 2010
part time as a census canvasser” but “asserts
that she can never work full-time on a regular job due to her
multiple medical problems.” AR at 396. Plaintiff
reported to him:
She has no energy or motivation to do anything during the
day. Because of her multiple medical problems, she believes
that part of her has died. She has an extremely poor self
image and believes that she is an abject failure. She has
become very reclusive and avoids most other people. She
states that she has great difficulty concentrating on
anything and is easily distracted. . . . She claims that she
has had multiple suicidal ideations and has attempted to kill
herself [three] times in the past. Her last attempt at
suicide was in 2008.
AR at 397. Plaintiff also reported that she has a good
relationship with her parents and one sister. AR at 397.
Plaintiff appeared depressed and anxious during the
evaluation, she maintained good eye contact and was polite
and responsive. AR at 397 (noting that Plaintiff's
“responses to questions were appropriate and
detailed”). Plaintiff's thought processes and
movement were within normal limits, and she was oriented in
all spheres. AR at 397. Plaintiff correctly answered basic
questions such as the date, the city, the current and past
presidents of the United States, the current governor, and
the state capitol. AR at 397. She could remember three ...