United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Reverse and/or Remand [Doc. 22] (“Motion”), filed
on September 13, 2018. The Commissioner responded on November
8, 2018. [Doc. 24]. Plaintiff replied on December 4, 2018.
[Doc. 25]. The parties have consented to my entering final
judgment in this case. [Doc. 19]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that Plaintiff fails to meet her
burden as the movant to show that the Administrative Law
Judge (“ALJ”) did not apply the correct legal
standards or that her decision was not supported by
substantial evidence. Accordingly, the Motion will be denied
and the Commissioner's final decision, affirmed.
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). Courts
must meticulously review the entire record but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. The 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 a 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
[Commissioner]'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. FAA, 372 F.3d 1195, 1200 (10th Cir.
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
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant 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. § 1382c(a)(3)(A) (2015); 20
C.F.R. § 416.905(a) (2012).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 416.920 (2012); Bowen v. Yuckert, 482
U.S. 137, 140 (1987). At the first four steps of the
evaluation process, the claimant must show: (1) she is not
engaged in “substantial gainful activity”;
and (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) either
meet or equal one of the Listings of presumptively disabling
impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §
416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If
she cannot show that her impairment meets or equals a
Listing, but she proves that she is unable to perform her
“past relevant work, ” the burden of proof then
shifts to the Commissioner, at step five, to show that the
claimant is able to perform other work in the national
economy, considering her residual functional capacity
(“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.
Plaintiff applied for supplemental security income
(“SSI”) on May 10, 2011. Tr. 193-98; see
Tr. 30. She alleged a disability-onset date of March 1, 2010.
Tr. 193, 445; see Tr. 30. Her claims were
denied initially and on reconsideration. See
Tr. 30. ALJ Ann Farris held a hearing on August 29,
2013, in Albuquerque, New Mexico. Tr. 30, 44-74. Plaintiff
appeared in person with her attorney. Id. The ALJ
heard testimony from Plaintiff and an impartial vocational
expert (“VE”), Thomas A. Grenier. Id.
The ALJ issued her unfavorable decision on November 14, 2013.
Tr. 39. The Appeals Council denied review on June 18, 2015.
Tr. 516-19. Plaintiff appealed to this Court for the first
time on August 4, 2015. Before the appeal was resolved,
Plaintiff filed a subsequent claim for SSI on September 21,
2015. See Tr. 580. The Honorable Kirtan Khalsa,
United States Magistrate Judge, presiding by consent,
reversed the Commissioner's final decision and remanded
the case for further proceedings on September 27, 2016. Tr.
557-77; No. 15-cv-0678 KK.
remand, the Appeals Council vacated ALJ Farris's November
14, 2013 decision, consolidated the old and new SSI
applications, and remanded the consolidated claims back to
ALJ Farris on February 1, 2017. Tr. 580. ALJ Farris held a
second hearing in Albuquerque, New Mexico on August 15, 2017.
Tr. 468-98. Plaintiff appeared pro se and in person. See
Id. The ALJ heard testimony from Plaintiff;
Plaintiff's friend, Jose R. Contreras; and the VE, Mr.
issued her second unfavorable decision on November 24, 2017.
Tr. 460. At step one she found that Plaintiff had not engaged
in substantial gainful activity since April 24, 2011. Tr.
447. At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: “degenerative lumbar
disc disease; scoliosis; obesity; neurocognitive disorder
with executive function deficit; polysubstance abuse;
attention-deficit hyperactivity disorder (ADHD); bipolar
disorder; personality disorder with borderline traits; and
post-traumatic disc [sic] disorder (PTSD).”
Id. Further, she found that Plaintiff's
irritable bowel syndrome was not severe. Tr. 448.
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 448-50. Because none of
Plaintiff's impairments met or medically equaled a
Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
450-59. The ALJ found that Plaintiff had:
the [RFC] to perform a limited range of sedentary work as
defined in 20 [C.F.R. §] 416.967(a). She can
occasionally climb stairs and ramps but never climb ladders
or scaffolds; the claimant can occasionally balance and stoop
but never kneel, crouch, or crawl; the claimant can make
simple work-related decisions with few workplace changes; the
claimant should have no interaction with the general public;
and the claimant should have only occasional and superficial
interactions with co-workers.
four the ALJ found that Plaintiff had no past relevant work.
Tr. 459. Accordingly, the ALJ went on to consider
Plaintiff's RFC, age, education, work experience, and the
testimony of the VE at step five. Tr. 459-60. She found that
Plaintiff could perform work that exists in significant
numbers in the national economy and, therefore, was not
disabled. Id. Plaintiff timely filed the instant
action on January 29, 2018. [Doc. 1].
makes several arguments in favor of remand, but none is
persuasive. First, even if the ALJ's discussions of
Plaintiff's obesity fell technically short, Plaintiff
fails to show any prejudice. Second, Plaintiff fails to show
reversible error in the evaluation of the opinions of PA
Francis and Dr. Simutis. Third, Plaintiff fails to show
reversible error at step five because other, unchallenged
findings are adequate to support the ALJ's determination
that Plaintiff can perform other work that exists in
significant numbers in the national economy. Plaintiff's
motion will be denied, and the Commissioner's decision
will be affirmed.
Plaintiff fails to show that she was prejudiced by the
ALJ's evaluation of her obesity.
cites to Social Security Ruling (“SSR”) 02-1p,
which explains that obesity can affect functioning and, thus,
affect the RFC. 2002 SSR LEXIS 1, at *18-19. The SSR further
explains that individuals with a body mass index
(“BMI”) of 40 or over have “extreme
obesity” and are “at greatest risk of developing
obesity-related impairments.” Id. at *4.
Obesity commonly leads to, “and often complicates,
chronic diseases the cardiovascular, respiratory, and
musculoskeletal body systems.” Id. at *6.
“Obesity may also cause or contribute to mental
impairments such as depression.” Id. at *7.
The Administration further recognizes that “[o]besity
may also affect an individual's social functioning.
Id. at *16. Because of the relationship between
obesity and functioning, the ALJ must “explain how
[she] reached [her] conclusions on whether obesity caused any
physical or mental limitations.” Id. at *5.
the ALJ found that Plaintiff's obesity was severe at step
two. Tr. 447. In her narrative discussion of the medical
records, the ALJ described Dr. Moedl's finding of morbid
obesity (5'3” and 273 pounds), Tr. 452, as well as
Dr. Pappu's and Dr. Otero-Lopez's findings of BMI
scores above ...