United States District Court, D. New Mexico
OPINION AND ORDER GRANTING IN PART PLAINTIFF'S
MOTION TO REVERSE AND REMAND
R SWEAZEA, UNITED STATES MAGISTRATE JUDGE
seeks review of the Commissioner's determination that she
is not entitled to disability benefits under Title II or
Title XIV of the Social Security Act, 42 U.S.C. §§
401-433, 1381-1383c. With the consent of the parties to
conduct dispositive proceedings in this matter, see
28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b), the Court has
considered Plaintiff's Motion to Reverse and Remand for a
Rehearing (Doc. 17), filed July 13, 2018, the
Commissioner's response in opposition (Doc. 18), filed
September 7, 2018, and Plaintiff's reply (Doc. 21), filed
October 18, 2018. Having so considered, the Court FINDS and
CONCLUDES that Plaintiff's motion should be granted in
22, 2012, Plaintiff filed applications for Social Security
and Supplemental Security Income disability benefits,
alleging that she had been disabled from August 30, 2011
through January 1, 2016, due to Multiple Sclerosis; numbness
in arms and legs; balance, coordination, and focus problems;
and memory loss. (AR 300). On November 7, 2012, it was
determined that Plaintiff was not disabled and her claim was
denied. (AR 166). This determination was affirmed on July 09,
2013 (AR 177), and a subsequent hearing before an
administrative law judge (“ALJ”), held on August
4, 2014, again ended in a denial. (AR 55-75). The ALJ's
decision became final when, on January 20, 2015, the Appeals
Council denied Plaintiff's request for review. (AR 2).
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000)
(explaining that if the Council denies a request for a
review, the ALJ's opinion becomes the final decision).
See also 20 C.F.R. § 404.900(a)(1)-(5).
Plaintiff challenged the ALJ's decision in the United
States District Court for the District of New Mexico and, on
May 10, 2016, Judge Garza remanded the matter for further
proceedings. (AR 867-80).
Court's order, Plaintiff was granted a second hearing.
(AR 883). In the decision that followed, ALJ Ann Farris
engaged in the required five-step disability analysis,
first finding that Plaintiff had not engaged in substantial
gainful activity since her alleged onset date of August 30,
2011 through January 1, 2016. (AR 762). At step two, the ALJ
found that Plaintiff has the severe impairments of Multiple
Sclerosis, depression, and scoliosis. (Id.). ALJ
Farris also found that Plaintiff has the non-severe
impairments of a history of gallbladder disease, irritable
bowel syndrome, urinary incontinence, obesity, and marijuana
dependence. (AR 763). At step three, the ALJ determined that
none of Plaintiff's impairments, whether alone or in
combination, met or medically equaled the severity of a
listed impairment. (Id.).
Farris next assessed Plaintiff's Residual Functional
Capacity (“RFC”),  finding that, from August 30,
2011 to January 1, 2016, Plaintiff had the RFC to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except she was limited to work that did not
require her to balance, did not involve more than brief
exposure to heat, involved simple work related decisions with
few workplace changes, involved occasional superficial
interaction with coworkers, and did not involve work at
production pace such as an assembly job or performing tandem
(AR 765). The ALJ then proceeded to steps four and five
where, with the help of a vocational expert
(“VE”), she determined that Plaintiff could not
perform her past relevant work but she could perform the
requirements of representative occupations such as charge
account clerk, call out operator, and telephone quotation
did not file written exceptions with the Appeals Council and
the Council did not assume jurisdiction of Plaintiff's
claim within sixty days of the ALJ's decision.
Accordingly, the ALJ's decision is the final decision of
the Commissioner. See 20 C.F.R. § 404.984(d).
Plaintiff now asks this Court to reverse and remand the
review of the Commissioner's decision is limited to
determining “whether substantial evidence supports the
factual findings and whether the ALJ applied the correct
legal standards.” Allman v. Colvin, 813 F.3d
1326, 1330 (10th Cir. 2016). See also 42 U.S.C.
§ 405(g). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted).
“Evidence is not substantial if it is overwhelmed by
other evidence in the record or constitutes mere
conclusion.” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005) (quotation omitted). The Court
must examine the record as a whole, “including anything
that may undercut or detract from the ALJ's findings in
order to determine if the substantiality test has been
met.” Id. at 1262. “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.”
Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.
1984) (quotation omitted). Even so, it is not the function of
the Court to review Plaintiff's claims de novo, and the
Court may not reweigh the evidence or substitute its judgment
for that of the ALJ. Glass v. Shalala, 43 F.3d 1392,
1395 (10th Cir. 1994).
offers two arguments in support of her request for reversal
and remand, viz., that ALJ Farris failed to properly consider
opinion evidence provided by Plaintiff's treating
counselor, LPCC Marty Rasmussen, and that she failed to
resolve a conflict between the VE's testimony and the
Dictionary of Occupational Titles (“DOT”). After
carefully reviewing the administrative record, the Court
finds that Plaintiff's first argument is without merit.
However, the Court agrees that the ALJ failed to reconcile
the VE's testimony with the DOT and it will reverse in
part on this ground.