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Romero v. Berryhill

United States District Court, D. New Mexico

March 4, 2019

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



         Plaintiff seeks review of the Commissioner's determination that she is not entitled to disability benefits under Title II or Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383c. On November 28, 2018, in accordance with 28 U.S.C. § 636(b)(1)(B), (b)(3), this case was referred to United States Magistrate Judge Kevin R. Sweazea to conduct any necessary hearings and to recommend an ultimate disposition. See Order of Reference, Doc. 30. Having considered Plaintiff's Motion to Reverse or Remand (Doc. 25), filed July 9, 2018, the Commissioner's response in opposition (Doc. 27), filed September 13, 2018, and Plaintiff's reply (Doc. 28), filed September 25, 2018, the undersigned RECOMMENDS that the Court DENY Plaintiff's Motion for the reasons set forth below.


         On September 12, 2010, Plaintiff filed an application for Social Security Disability Insurance benefits, alleging that she had been disabled since November 29, 2009, due to possible “pituitary failure endocrine system failure.”[1] (AR 333-34, 372, 374). Plaintiff's claim was denied at both the initial and reconsideration levels of review, and a subsequent hearing before Administrative Law Judge (“ALJ”) Ann Farris again ended in a denial. (AR 158-191). Plaintiff then appealed the ALJ's decision to the Social Security Administration's Appeals Council. On May 14, 2015, the Appeals Council granted Plaintiff's request for review and determined that ALJ Farris did not address opinion evidence provided by Plaintiff's Nurse Practitioner Philomena Marcus, and improperly calculated Plaintiff's date of last insured. (AR 199). Ultimately, the Council remanded Plaintiff's case for further proceedings and directed the ALJ to obtain additional evidence; further consider and explain Plaintiff's assessed limitations; and evaluate “the treating source opinions” in accordance with the Administration's rules and regulations. (AR 200).

         Per the Council's order of remand, Plaintiff was granted a second hearing before ALJ Gerald Meyer. In the decision that followed, ALJ Meyer, too, determined that Plaintiff was not disabled and her claim was once again denied. In making his decision, ALJ Meyer engaged in the required five-step disability analysis, [2] first finding that, although Plaintiff had worked part-time between 2010 and 2014, she had not engaged in substantial gainful activity since her alleged onset date of November 29, 2009.[3] (AR 50). At step two, ALJ Meyer found that Plaintiff had the severe impairments of Raynaud's phenomenon; cervical spine degenerative disc disease; lumbosacral strain; pituitary gland disorder and hypothyroidism; chronic pain syndrome; and mood disorder. (AR 51). At step three, ALJ Meyer determined that none of Plaintiff's impairments, whether alone or in combination, met or medically equaled the severity of a listed impairment. (AR 55).

         ALJ Meyer next assessed Plaintiff's Residual Functional Capacity (“RFC”), [4] finding that Plaintiff had the RFC to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift or carry ten pounds frequently or twenty pounds occasionally, stand and walk about six hours in an 8-hour day with normal breaks or sit for six hours. The following are never: climbing ropes, ladders, or scaffolds, crawling, exposure to extreme heat or extreme cold, exposure to noxious odors, fumes, dusts, gases and chemicals, and exposure to unprotected heights or dangerous machinery. The following are occasionally: climbing ramps and stairs, balancing, stooping, kneeling, and crouching. Handling and fingering with either arm would be limited to frequently but not continually. Mentally, the claimant would be able to understand, remember and carry out detailed but not complex instructions.

(AR 57). The ALJ then proceeded to steps four and five where, with the help of a vocational expert, he determined that Plaintiff could not perform her past relevant work but that she could perform the requirements of representative occupations such as cashier II, furniture rental clerk, and mail sorter. (AR 63). Accordingly, ALJ Meyer concluded that Plaintiff was not disabled.

         The ALJ's decision became final when, on September 11, 2017, the Appeals Council denied Plaintiff's request for review. (AR 1-4). See Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (explaining that if the Council denies a request for a review, the ALJ's opinion becomes the final decision). See also 20 C.F.R. § 404.900(a)(1)-(5). Plaintiff now asks the Court to reverse and remand the Commissioner's decision, arguing that ALJ Meyer improperly weighed the opinion evidence of record.

         II. STANDARD

         Judicial review of the Commissioner's decision is limited to determining “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). See also 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005) (quotation omitted). The Court must examine the record as a whole, “including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. at 1262. “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.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (quotation omitted). Even so, it is not the function of the Court to review Plaintiff's claims de novo, and the Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).

         III. ANALYSIS

         Prior to making his decision, ALJ Meyer considered the evidence of record and, as is relevant here, [5] assessed and rejected opinion evidence provided by Plaintiff's medical providers—nurse practitioners Philomena Marcus (“NP Marcus”) and Maureen Kolomeir (“NP Kolomeir”), and treating physician, Anthony P. Reeve, M.D.—all of whom assessed Plaintiff with a variety of extreme limitations. Plaintiff contends that the ALJ improperly weighed this evidence and, but for the ALJ's alleged errors in this regard, her applications for disability benefits would have been granted.

         At the time of the ALJ's decision, licensed physicians, such as Dr. Reeve, qualified as “acceptable medical sources” whereas nurse practitioners, including NP Marcus and NP Kolomeir, were considered “non-acceptable medical sources” (hereinafter “other sources”). While only an “acceptable medical source” can give medical opinions, establish the existence of a medically determinable impairment, and be considered a treating source, SSR 06-03p, 2006 WL2329939, *2, information from “other sources” “may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function.” Id. ...

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