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 Samuel
Nunez' Motion to Reverse and Remand for Rehearing,
with Supporting Memorandum (the “Motion”),
(Doc. 23), filed November 1, 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. 25), filed December 21, 2018; and Mr. Nunez'
Reply to Brief in Response to Motion to Reverse and
Remand (the “Reply”), (Doc. 26), filed
January 16, 2019.
Nunez filed an application for disability insurance benefits
on June 9, 2016 and for supplemental security income on May
3, 2016. (Administrative Record “AR” 184, 191).
In both of his applications, Mr. Nunez alleged disability
beginning March 31, 2013. Id. Mr. Nunez claimed he
was limited in his ability to work due to: a left shoulder
injury; a left chest non-cancerous mass removal;
hypertension; high cholesterol; and insomnia. (AR 226). Mr.
Nunez later amended his disability onset date to August 3,
2015. (AR 205).
Nunez' applications were denied initially on July 25,
2016 and upon reconsideration on October 24, 2016. (AR 114,
120). At Mr. Nunez' request, (AR 132), a hearing was held
on September 5, 2017 before Administrative Law Judge
(“ALJ”) Eric Weiss, (AR 31). Mr. Nunez and Tammy
Donaldson, an impartial vocational expert (“VE”)
appearing telephonically, testified at the hearing and Mr.
Nunez was represented by a non-attorney advocate, Catalina
Marie Laaroussi. Id.
December 21, 2017 the ALJ issued his decision, finding Mr.
Nunez not disabled at any time between his alleged onset
date, August 3, 2015, through the date of his decision. (AR
24). Mr. Nunez requested review by the Appeals Council, (AR
182), which was denied, (AR 1-3), making the ALJ's
opinion the Commissioner's final decision for purposes of
Nunez, who is now represented by attorney Francesca
MacDowell, argues in his Motion that: (1) his residual
functional capacity (“RFC”) does not incorporate
the limitations proscribed by treating nurse practitioner
(“NP”) K. Cathey, (Doc. 23 at 6-10); (2) the ALJ
failed to properly consider limitations resulting from his
diabetes, obesity, depression, and anxiety, id. at
16-20; and (3) substantial evidence presented by Mr.
Nunez' testimony and the medical opinions in the record
supports a finding of disability, id. at 10-16.
Relatedly, Mr. Nunez also contends that because the VE was
presented with an incorrect RFC assessment, the ALJ's
reliance on the VE's testimony was improper. Id.
at 24-25. The Court has reviewed the Motion, the Response,
the Reply, and the relevant law. Additionally, the Court has
meticulously reviewed the administrative record. Because the
ALJ erred in his consideration of Mr. Nunez' treating
nurse practitioner's opinion, the Court finds that Mr.
Nunez' Motion should be GRANTED 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.
Barnhart, 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. 2004)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
he 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) (2015), 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. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). If the ALJ determines the claimant cannot engage in
his 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 RFC, age, education, and work experience.
Grogan, 399 F.3d at 1261.
Nunez claimed he was limited in his ability to work due to: a
left shoulder injury; a left chest non-cancerous mass
removal; hypertension; high cholesterol; and insomnia. (AR
226). At step one, the ALJ determined that Mr. Nunez had not
engaged in substantial gainful activity since August 3, 2015,
the alleged disability onset date. (AR 18). At step two, the
ALJ found that Mr. Nunez has the following severe
impairments: left shoulder impingement syndrome with rotator
cuff tendinosis, SLAP tear, and acromioclavicular
degenerative joint disease post-surgical repair; right wrist
loose body in wrist joint and right ulnar impaction syndrome
post-surgery; and male left breast gynecomastia/mass
post-mastectomy with nipple grafting. Id. At step
three, the ALJ determined that none of Mr. Nunez'
impairments, solely or in combination, equaled one of the
listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 19).
four, the ALJ found that Mr. Nunez has the RFC to perform
light work with the following limitations on his abilities
to: lift 20 pounds occasionally, lift and carry 10 pounds
frequently, and push and pull occasionally with bilateral
upper extremities; walk, stand, and sit for 6 hours per
8-hour workday with normal breaks; occasionally climb ramps
and stairs, but never ladders, ropes, and scaffolds;
frequently balance, stoop, crouch, kneel, and occasionally
crawl; occasionally reach overhead, and frequently reach in
front and laterally with the non-dominant left upper
extremity; frequently handle with the dominant right upper
extremity; and avoid more than occasional exposure to extreme
cold and wetness, vibration, and dangerous moving machinery.
(AR 19, 20).
formulating Mr. Nunez' RFC, the ALJ stated that he
considered Mr. Nunez' symptoms and the extent to which
those symptoms can reasonably be accepted as consistent with
objective medical and other evidence, as required by 20
C.F.R. §§ 404.1529, 416.929 and Social Security
Ruling (“SSR”) 16-3p. (AR 20). The ALJ
also stated that he considered opinion evidence consistent
with the requirements of 20 C.F.R. §§ 404.1527 and
416.927. Id. The ALJ concluded that some of Mr.
Nunez' impairments could be expected to cause his alleged
symptoms, but he found that the intensity, persistence, and
limiting effects that Mr. Nunez described were not entirely
consistent with the evidence in the record. Id.
evaluating the medical evidence in the record, the ALJ stated
that he gave “little weight” to the opinion of NP
Cathey. (AR 22). The ALJ explained that NP Cathey's
report was both unsupported by her treatment notes and
inconsistent with Mr. Nunez' own testimony at the
hearing. Id. In addition, the ALJ stated NP Cathey
was “not an acceptable medical source” pursuant
to the Social Security Act. Id. The ALJ similarly
afforded the opinion of State Agency reviewing physician Mark
Werner, M.D., “little weight, ” opining that the
later opinion of State Agency reviewing physician Robert
Weisberg, M.D., was more consistent with the record.
Id. The ALJ therefore gave Dr. Weisberg's
opinion “great weight, ” finding that his opinion
was supported by the “longitudinal medical
also discussed Mr. Nunez' outpatient treatment notes and
records from August 2015 to June 2017. (AR 20-21). In
addition, the ALJ analyzed Mr. Nunez' testimony at the
hearing and the third-party function report submitted by his
wife, Paula Nunez. (AR 20-22). The ALJ credited Mrs.
Nunez' third-party report “little weight, ”
noting that it was submitted before Mr. Nunez' August
2016 shoulder surgery and Mrs. Nunez had a pecuniary interest
in a finding of disability for her husband. (AR 22).
examining Mr. Nunez' medical reports and his testimony at
the hearing, the ALJ found that Mr. Nunez is unable to
perform any of his past relevant work and proceeded to step
five of the SEP. (AR 23). At this step, the ALJ noted that
Mr. Nunez was 48 years old on the alleged disability onset
date, and therefore was classified as a “younger
individual” in accordance with the Regulations.
Id. However, Mr. Nunez subsequently changed age
categories and is now correctly classified as an individual
“closely approaching advanced age.” Id.
The ALJ also determined that Mr. Nunez has at least a high
school education and is able to communicate in English.
the ALJ explained that if Mr. Nunez had the RFC to perform
the full range of light work, a finding of not disabled would
be directed by Medical-Vocational Rule 202.21. (AR 24).
However, the ALJ found that Mr. Nunez' limitations
impeded his ability to perform the full range of light work.
Id. The ALJ therefore relied on the testimony of the
VE to determine applicable jobs Mr. Nunez could perform in
the national economy. Id. The ALJ noted that the VE
testified at the hearing that an individual with Mr.
Nunez' same age, education, work experience, and RFC
could perform the jobs of sales attendant, furniture rental
clerk, and information clerk. Id. After finding the
VE's testimony consistent with the Dictionary of
Occupational Titles, the ALJ adopted the testimony of the VE