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Fielder v. Berryhill

United States District Court, D. New Mexico

January 10, 2019

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff seeks review of the Commissioner's determination that she is not entitled to disability benefits under Title II or Title XVI 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 for Reversal and Remand and Brief in Support of Motion (Docs. 19 and 20), filed August 10, 2018, and the Commissioner's response in opposition (Doc. 22), filed September 24, 2018. Having so considered, the Court FINDS and CONCLUDES that Plaintiff's motion should be DENIED.


         In January 2014, Plaintiff filed applications for Social Security and Supplemental Security Income disability benefits, alleging that she had been disabled since February 1, 2013, due to neuropathy, asthma, pinched nerve, and cage in neck. (AR 67, 69). On April 11, 2014, it was determined that Plaintiff was not disabled and her claim was denied. (AR 85-86). This determination was affirmed on September 22, 2014 (AR 109-10), and a subsequent hearing before administrative law judge (“ALJ”) Cole Gerstner, held on December 2, 2016, again ended in a denial. (AR 12-25).

         In making his decision, ALJ Gerstner engaged in the required five-step disability analysis, [1] first finding that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of February 1, 2013.[2] (AR 17). At step two, the ALJ found that Plaintiff has the severe impairments of cervical stenosis, obesity, status-post cervical fusion multi-level, depression, asthma with mild-supplemental oxygen at night, and obstructive sleep apnea with nocturnal hypoxemia. (Id.). 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.).

         ALJ Gerstner next assessed Plaintiff's Residual Functional Capacity (“RFC”), [3] finding that Plaintiff had the RFC to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). She can lift, carry, push and pull twenty pounds occasionally, ten pounds frequently. She can sit, stand, and walk six hours in an eight-hour workday. She can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. She can occasionally crawl. She can have occasional exposure to unprotected heights and moving machinery. She can occasionally work around dust, odor, fumes and pulmonary irritants. She can perform simple, routine, unskilled tasks.

         (AR 19-20). The ALJ then proceeded to steps four and five where, with the help of a vocational expert, he determined that Plaintiff could not perform her past relevant work but she could perform the requirements of representative occupations such as counter clerk retail setting, flat work tier, and merchandise marker. (AR 24).

         The ALJ's decision became final when, on January 19, 2018, the Appeals Council denied Plaintiff's request for review. (AR 1). 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 now asks the Court to reverse and remand the Commissioner's decision.


         Plaintiff's challenge to the Commissioner's decision is based on the premise that ALJ Gerstner failed to include standing and walking limitations in his RFC findings. Plaintiff's argument is difficult to follow, however, as the only contention she supplies in support thereof is that the ALJ impermissibly assigned great weight to opinion evidence provided by non-examining state agency medical consultants. Plaintiff does not suggest that other source evidence was entitled to greater weight. Instead, she merely states that the consultants “reviewed the full record well more than two years prior to the ALJ's decision [in] this case and, more importantly, almost exactly 2 years before [her] need for supplemental oxygen.” (Doc. 20, p. 7). From this, Plaintiff concludes that her RFC is inaccurate and that the ALJ's errors in this regard tainted the remainder of his findings.

         Importantly, the Court's 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). 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). Plaintiff's arguments, to the extent they are discernable, do not establish that ALJ Gerstner erred in either his consideration or application of the evidence of record.

         III. ANALYSIS

         Prior to formulating Plaintiff's RFC, ALJ Gerstner considered the evidence of record and, as is relevant here, assigned “great weight” to the medical findings made by non-examining state agency consultants at both the initial and reconsideration levels of review. (AR 22). Not surprisingly, then, ALJ Gerstner's RFC ...

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