United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON
MOTION TO REVERSE AND REMAND
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on plaintiff Carol Brand's
Motion to Reverse o Remand (Doc. 19), which was fully briefed
on October 1, 2018. See Docs. 21, 22, 23. Pursuan to
28 U.S.C. § 636, the Honorable Chief District Judge
William P. Johnson referred this matter to me for a
recommended disposition. Doc. 9. Having meticulously reviewed
the entire record and being fully advised in the premises, I
recommend that the Court GRANT Ms. Brand's motion and
remand this case to the Commissioner for further proceedings
consistent with this opinion.
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). If substantial evidence support 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).
“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 and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (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. A 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 the 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
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] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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. § 423(d)(1)(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; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) the claimant is not
engaged in “substantial gainful activity;” (2)
the claimant 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) the impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
Background and Procedural History
Brand was born in 1960, completed two years of college, and
worked for approximately 13 years as a receptionist in an
optometry office. AR 179, 184. Ms. Brand filed an application
for disability insurance benefits on December 11,
2014-alleging disability since June 14, 2011 due to a brain
injury, short-term memory loss, and diabetes. AR 158-64, 183.
The Social Security Administration (“SSA”) denied
her claims initially on April 2, 2015. AR 88-92. The SSA
denied her claims on reconsideration on July 21, 2015. AR
80-86. Ms. Brand requested a hearing before an ALJ. AR
103-04. On December 14, 2016, ALJ Ann Farris held a hearing.
AR 42-71. ALJ Farris issued her unfavorable decision on April
5, 2017. AR 20-36.
one, the ALJ found that Ms. Brand had not engaged in
substantial, gainful activity since June 14, 2011, her
alleged onset date, through her date last insured, December
31, 2011. AR 25. At step two, the ALJ found that Ms. Brand
had the following medically determinable impairments:
superior sagittal sinus thrombosis,  and diabetes mellitus type
2. AR 26. The ALJ found, however, that Ms. Brand did not have
“an impairment or combination of impairments that
significantly limited [her] ability to perform basic
work-related activities for 12 consecutive months” and,
therefore, “did not have a severe impairment or
combination of impairments.” Id. The ALJ
denied Ms. Brand's claim at step two and did not complete
the rest of the sequential evaluation process.
Brand requested review by the Appeals Council. AR 153. The
Appeals Council granted review to address the ALJ's
failure to address the November 23, 2016 medical source
statement from Dr. Louise McDade. AR 154-57. Ms. Brand
submitted additional briefing and correspondence to the
Appeals Council, as well as a June 8, 2017 medical source
statement from clinical neuropsychologist Dr. Sandra Montoya.
AR 8-16, 264-68. On October 31, 2017, the Appeals Council
issued its unfavorable decision. AR 1-6. The Appeals Council
gave “little weight” to the opinion of Dr. Louise
McDade-finding her opinion inconsistent with her objective
findings during the relevant time period. AR 5. The Appeals
Council gave no weight to Dr. Sandra Montoya's opinion,
finding that the opinion “does not relate to the period
at issue.” AR 4. The Appeals Council adopted the
ALJ's finding that that Ms. Brand did not have a severe
impairment prior to her date last insured. AR 5.
Brand timely appealed to this Court on December 7, 2017. Doc.
Ms. Brand's Claims
Brand argues that the ALJ and the Appeals Council erred in
finding that she did not meet her de minimis burden of proof
at step two. Specifically, she argues that (1) the ALJ failed
to properly weigh the opinion of treating physician Dr.
Adolfo Sanchez; (2) the ALJ and Appeals Council failed to
properly weigh the opinion of treating physician Dr. Louise
McDade; (3) the Appeals Council failed to properly weigh the
opinion of neuropsychologist Dr. Sandra Montoya; and (4) the
ALJ failed to discuss her cervical degenerative disease, or
to explain why this impairment was not severe. Doc. 19 at
I remand based on Ms. Brand's broader argument that the
ALJ and the Appeals Council erred in finding she did not meet
the de minimis standard of proof at step two, I do not
address the other alleged errors, which “may be
affected by the ALJ's treatment of this case ...