United States District Court, D. New Mexico
MANUEL T. CHAVEZ, Sr., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR United States Magistrate Judge Presiding by
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
[Doc. 17], filed on October 5, 2018. Defendant responded on
January 7, 2019. [Doc. 22]. Plaintiff replied on February 4,
2019. [Doc. 25]. The parties have consented to my entering
final judgment in this case. [Doc. 9]. Having meticulously
reviewed the entire record and being fully advised in the
premises, the Court finds that the Administrative Law Judge
(“ALJ”) did not apply the correct legal standards
in evaluating Dr. Gucker's opinion. Accordingly, the
Motion will be granted, and the case will be remanded for
further proceedings. See 42 U.S.C. § 405(g)
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 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
[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) (quotation marks omitted).
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. §§
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.
Plaintiff's second appeal to this Court. He originally
applied for a period of disability, disability insurance
benefits, and supplemental security income on November 14,
2011. Tr. 41. He alleged a disability-onset date of
September 1, 2009. Id. Plaintiff's claims were
denied initially and on reconsideration.
Barry O'Melinn held the first administrative hearing on
January 7, 2014, in Albuquerque, New Mexico. Tr. 41, 58-88.
He then issued the first unfavorable decision on February 14,
2014. Tr. 53. The Appeals Council denied review, Tr. 15-19,
and in federal court, on recommendation by the magistrate
judge, the ALJ's decision was reversed and the case was
remanded for further proceedings, Chavez v. Colvin,
No. 15-cv-0734 JAP/KK, [Doc. 43] (D.N.M. Dec. 13, 2016)
remand, the Appeals Council instructed the ALJ to consolidate
Plaintiff's claims with those subsequently filed on
October 30, 2015. Tr. 686. ALJ Ben Ballengee held the second
administrative hearing on September 13, 2017, in Albuquerque,
New Mexico. Tr. 574, 597-640. Plaintiff appeared in person
with his attorney. Id. The ALJ heard testimony from
Plaintiff and an impartial vocational expert
(“VE”), Karen Provine. Tr. 597-640.
issued the second unfavorable decision on January 25, 2018.
Tr. 574-89. He found that Plaintiff met the insured-status
requirement through March 31, 2014. Tr. 576. Then, at step
one he found that Plaintiff had not engaged in substantial
gainful activity since his alleged onset date. Id.
At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: diabetes mellitus, diabetic
peripheral neuropathy, obesity, and depression with psychotic
features. Tr. 577. The ALJ also found that Plaintiff's
hypertension, hyperlipidemia, gastroesophageal reflux
disease, and history of alcohol and drug abuse did not
qualify as “severe.” Tr. 578. He further found
that any head injury, post-traumatic stress disorder, spine
impairment, or elbow impairment failed to qualify as
“medically determinable impairments.”
three the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 579-80. Because none of
Plaintiff's impairments met or medically equaled a
Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
580-87. The ALJ found that Plaintiff had:
the [RFC] to perform light work as defined at 20 [C.F.R.
§§ 404.1567(b), 416.967(b), and Social Security
Ruling] 83-10, except that he can occasionally climb ramps
and stairs. He can never climb ladders, ropes, or scaffolds.
He can occasionally stoop, kneel, crouch, and crawl. He can
occasionally be exposed to unprotected heights and moving
mechanical parts. Mentally, he is limited to performing
simple, routine tasks. In the use of judgment, he is limited
to simple work-related decisions. He can frequently interact
appropriately with supervisors and coworkers. He can
frequently engage in contact with the public. He can adapt to
occasional changes in a routine work setting.
four the ALJ found that Plaintiff was unable to perform past
relevant work as a dry-wall applicator, carpenter, or
construction worker I. Tr. 587. Accordingly, the ALJ went on
to consider Plaintiff's RFC, age, education, work
experience, and the testimony of the VE at step five. Tr.
588-89. He found that Plaintiff could perform work that
exists in significant numbers in the national economy and,
therefore, was not disabled. Id. Because this case
had been remanded by the federal court once before, Plaintiff
was not required file written exceptions with the Appeals
Council. See 20 C.F.R. § 404.984. Instead,
Plaintiff timely appealed directly to this Court on May 24,
2018. [Doc. 1].
is warranted because the ALJ erred in failing to explain why
he rejected Dr. Gucker's assessments of certain moderate
limitations. Because proper evaluation of Dr. Gucker's
opinion may render moot Plaintiff's other alleged errors,
the Court declines to pass on them at this time.
The ALJ failed to apply the correct legal standard in
evaluating the non-examining opinion of Dr. Gucker.
ALJs need not discuss every piece of evidence, they are
required to discuss the weight assigned to each medical
source opinion. Keyes-Zachary v. Astrue, 695 F.3d
1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§
404.1527(e)(2)(ii), 416.927(e)(2)(ii)). That is, when assessing a
plaintiff's RFC, an ALJ must explain what weight she
assigns to each opinion and why. Id. “[T]here
is no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical
opinion on [a specific] functional capacity . . . because the
ALJ, not a physician, is charged with determining a
claimant's RFC from the medical record.” Chapo
v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012)
(alteration and quotation marks omitted)); see Wells
v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013)
(same). Nevertheless, “[a]n ALJ is not entitled to pick
and choose through an uncontradicted medical opinion, taking
only the parts that are favorable to a finding of
nondisability.” Chapo, 682 F.3d at 1292
(quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th
Cir. 2007)). ALJs are required to provide “appropriate
explanations for accepting or rejecting such
opinions.” Social Security Ruling (“SSR”)
96-5p, 1996 WL 374183, at *5 (emphasis added); see
Keyes-Zachary, 695 F.3d at 1161 (same) (citing 20 C.F.R.
§§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)).
“If the RFC assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the opinion
was not adopted.” SSR 96-8p, 1996 SSR LEXIS 5, at *20,
1996 WL 374184, at *7. The ALJ's reasons must be specific
and legitimate. Chapo, 682 F.3d at 1291.
Gucker offered a non-examining opinion that Plaintiff had
moderate limitations in the following areas:
• The ability to remember locations and work-like
• The ability to understand and remember very short and
simple instructions; • The ability to carry out very