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 Benito Hernandez,
Jr.'s Motion to Reverse and Remand for a Rehearing,
With Supporting Memorandum (the "Motion"),
(Doc. 23), filed August 20, 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. 27), filed October 19, 2018; and Mr. Hernandez'
Reply to Brief in Response to Motion to Reverse and
Remand (the "Reply"), (Doc. 29), filed October
Hernandez filed an application for disability insurance
benefits on November 10, 2014, alleging disability beginning
May 7, 2014. (Administrative Record "AR" 61). Mr.
Hernandez claimed he was limited in his ability to work due
to lumbar pain, problems with his L-4 and L-5 discs, and
weakness in his legs. (AR 296). Mr. Hernandez'
application was denied initially on June 18, 2015, and upon
reconsideration on November 4, 2015. (AR 61). A request for a
hearing was filed, and a hearing was held on January 20,
2017, before Administrative Law Judge ("ALJ")
Lillian Richter. (AR 116). Mr. Hernandez and Nicole B. King,
an impartial vocational expert ("VE"), testified at
the hearing, and Sofia Reyes McDermott, an attorney,
represented Mr. Hernandez at the hearing. (AR 116-148).
February 16, 2017, the ALJ issued her decision, finding Mr.
Hernandez not disabled at any time between his alleged
disability onset date through the date of the decision. (AR
72). After the ALJ's decision, Mr. Hernandez submitted
additional medical records to the Appeals Council. (AR8-11,
16-23, 27-41, 43-57, 79-115, 674-91). On March 29, 2017, Mr.
Hernandez requested review by the Appeals Council, (AR
262-66), and, on January 11, 2018, the Appeals Council denied
Mr. Hernandez' request for review, making the ALJ's
decision the Commissioner's final decision for purposes
of this appeal, (AR 1-6).
Hernandez, who is now represented by attorney Francesca
MacDowell, raises the following arguments on appeal of the
Commissioner's decision: (1) the ALJ erred by failing to
properly weigh the evidence and in assessing Mr.
Hernandez' abilities and symptoms; and (2) the Appeals
Council failed to properly consider the medical evidence
submitted after the ALJ's decision. (Doc. 23 at 4-21).
The Court has reviewed the Motion, the Response, the Reply,
and the relevant law. Additionally, the Court has
meticulously reviewed the Administrative Record. (Docs. 18
and 28). Because the Appeals Council erred in failing to
consider the additional evidence Mr. Hernandez submitted, the
Court finds that Mr. Hernandez' Motion is well-taken and
should be GRANTED IN PART 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) (citing 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 to
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.
Bamhart, 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.
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), 42 U.S.C. § 1382c(a)(3)(A), 20 C.F.R.
§§ 404.1505(a), 416.905(a). 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, 416.920.
first four steps of the SEP, the claimant bears the burden of
showing: (1) he is not engaged in "substantial gainful
activity"; (2) he 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) his impairment(s) meet or
equal one of the "Listings" of presumptively disabling
impairments; or (4) he is unable to perform his "past
relevant work." 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also
Grogan v. Bamhart, 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 bears the
burden of showing 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. Grogan, 399 F.3dat
Hernandez applied for disability insurance benefits due to
lumbar pain, problems with his L-4 and L-5 discs, and
weakness in his legs. (AR 296). At step one, the ALJ
determined that Mr. Hernandez had not engaged in substantial
gainful activity since May 7, 2014, the alleged onset date.
(AR 63). At step two, the ALJ concluded that Mr. Hernandez
had the following severe impairments: diabetes under control,
cerebral infarction, degenerative disc disease of the lumbar
spine, varicose veins of bilateral lower extremities,
peripheral vascular disease, post rotator cuff repair of the
right shoulder, obesity, osteoarthritis of the left knee,
atherosclerosis, coronary artery disease, and neuropathy.
Id. At step three, the ALJ determined that none of
Mr. Hernandez' 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 64-66).
four, the ALJ found that Mr. Hernandez has the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b). (AR
66). The ALJ additionally found that Mr. Hernandez can: lift,
carry, push, and pull 20 pounds occasionally and 10 pounds
frequently; stand/walk for 6 hours and sit for 6 hours in an
8-hour workday; and occasionally stoop, kneel, crouch, crawl,
and climb ramps and stairs. The ALJ further found that Mr.
Hernandez: could never climb ladders, ropes, or scaffolds;
could never balance; and should avoid exposure to unprotected
heights, moving mechanical parts, dust, odors, fumes,
pulmonary irritants, extreme heat, and extreme cold. Finally,
the ALJ found that Mr. Hernandez ...