United States District Court, D. New Mexico
KEVIN M. WOOD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand to Agency for Rehearing [Doc. 14]
(“Motion”), filed on October 22, 2018. The
Commissioner responded on December 18, 2018. [Doc. 15].
Plaintiff replied on January 15, 2019. [Doc. 17]. The parties
have consented to my entering final judgment in this case.
[Doc. 7]. Having meticulously reviewed the entire record and
being fully advised in the premises, the Court finds that
Plaintiff fails to meet his burden as the movant to show that
the Administrative Law Judge (“ALJ”) did not
apply the correct legal standards or that his decision was
not supported by substantial evidence. Accordingly, the
Motion will be denied and the Commissioner's final
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 re-weigh 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) (citing
Zoltanski v. F.A.A., 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 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a),
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
he is not engaged in “substantial gainful
activity”; and (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 (3) his
impairment(s) either 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); Grogan,
399 F.3d at 1261. If he cannot show that his impairment meets
or equals a Listing, but he proves that he is unable to
perform his “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 his residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
was born on December 2, 1985. Tr. 430. He suffered a head
injury during a snowboarding accident in 2006, which is the
root of his allegedly disabling conditions. See Tr.
425. He applied for a period of disability, disability
insurance benefits, and supplemental security income on
December 21, 2009. Tr. 161, 165. Plaintiff originally alleged
a disability onset date of May 1, 2009, but amended the date
to January 20, 2008. Tr. 420. His claims have been
denied three times by ALJs. Tr. 17-24 (first denial of
January 19, 2012); Tr. 553-63 (second denial of May 11,
2015); Tr. 420-31 (third denial of March 30, 2017). This is
his second appeal to this Court. See Tr. 531-45
(first federal court remand of March 28, 2014); Wood v.
Colvin, No. 13-cv-0392 SMV (D.N.M. March 28, 2014)
pertinent here, ALJ Eric Weiss held a third administrative
hearing November 14, 2016, in Albuquerque, New Mexico. Tr.
442-73. Plaintiff appeared by video conference from
Farmington, New Mexico, with his attorney. Id. The
ALJ heard testimony from Plaintiff and an impartial
vocational expert (“VE”), Karen N. Provine.
issued the third unfavorable ALJ decision on March 30, 2017.
Tr. 420-31. At step one he found that Plaintiff had engaged
in substantial gainful activity (“SGA”) between
his alleged onset date of January 2008 through December 2009,
but he had no SGA since that time. Tr. 423. At step two, the
ALJ found that Plaintiff suffered from the following severe
impairments: “cognitive disorder, NOS, secondary to
traumatic brain injury; mood disturbance secondary to
traumatic brain injury[;] and attention deficit disorder
without hyperactivity.” Id.
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 423-24. Because none of
Plaintiff's impairments met or medically equaled a
Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
425-430. The ALJ found that Plaintiff had:
the [RFC] to perform a full range of work at all exertional
levels but with the following nonexertional limitations: He
can understand, remember and carry out only simple
instructions and make commensurate work-related decisions in
a work setting with few if any changes. [Plaintiff] can
frequently interact with supervisors, co-workers and the
public. He is able to maintain concentration, persistence and
pace during the workday with normal breaks.
four the ALJ found that Plaintiff was unable to perform past
relevant work as a water sales representative. Tr. 430.
Accordingly, the ALJ went on to consider Plaintiff's RFC,
age, education, work experience, and the testimony of the VE
at step five. Tr. 430-31. He found that Plaintiff could
perform work that exists in significant numbers in the
national economy and, therefore, was not disabled.
Id. The Appeals ...