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 or Remand the Administrative Decision [Doc. 18] and
his Memorandum Brief in Support [Doc. 19] (collectively,
“Motion”), filed on October 30, 2018. The
Commissioner responded on December 31, 2018. [Doc. 21].
Plaintiff replied on January 22, 2019. [Doc. 22]. The parties
have consented to my entering final judgment in this case.
[Doc. 11]. Having meticulously reviewed the entire record and
being fully advised in the premises, the Court finds that the
Administrative Law Judge (“ALJ”) erred in failing
to obtain a consultative examination (“CE”) to
assess the extent of Plaintiff's alleged cognitive
impairment. Accordingly, the Motion will be GRANTED, and the
case will be remanded for further proceedings. See
42 U.S.C. § 405(g) (2018) (sentence four).
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 21, 1965. Tr. 196. He alleges that he
cannot work due to a combination of mental and physical
problems. On May 28, 2014, Plaintiff applied for a period of
disability and disability insurance benefits. Tr. 196. He
then applied for supplemental security income on July 28,
2014. Tr. 198. Plaintiff alleged a disability-onset
date of November 28, 2013. Tr. 196, 198.
Doug Gabbard, II, held a hearing on December 20, 2016, in
McAlester, Oklahoma. Tr. 10, 43. In advance of the hearing,
Plaintiff's attorney submitted a thorough brief and
written request for a consultative psychological examination.
Tr. 371-86. Counsel specifically requested IQ testing to
determine the extent of Plaintiff's cognitive impairment.
Id. It does not appear that the ALJ ever ruled on
the request, but in any event, the ALJ did not order a CE.
appeared at the hearing as scheduled by video conference from
Albuquerque, New Mexico, with his attorney. Id. The
ALJ heard testimony from Plaintiff and an impartial
vocational expert (“VE”), Diana L. Kizer, who
testified in person in McAlester. Tr. 43.
issued his unfavorable decision on February 14, 2017. Tr.
10-24. At step one he found that Plaintiff had not engaged in
substantial gainful activity (“SGA”) since his
alleged onset date. Tr. 12. At step two, the ALJ found that
Plaintiff suffered from the following severe impairments:
“status post light pelvis fracture, phlebitis,
depression, posttraumatic stress disorder (PTSD), and
substance addiction disorder (alcohol).” Id.
The ALJ also found that Plaintiff's hypertension,
hypothyroidism, cellulitis of the left food, ...