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De Anda v. Berryhill

United States District Court, D. New Mexico

January 16, 2019

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



         THIS 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

          The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] 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).

         “Substantial 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. 2004)).

         “The 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 omitted).

         Applicable Law and Sequential Evaluation Process

          In 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).

         When 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[2] 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.

         Procedural Background

          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.

         On 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. Grenier. Id.

         The ALJ 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.

         At step 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.

Tr. 450.

         At step 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].


         Plaintiff 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.

         I. Plaintiff fails to show that she was prejudiced by the ALJ's evaluation of her obesity.

         Plaintiff 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.

         Here, 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 ...

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