United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand to Agency for Rehearing, with Supporting
Memorandum (Doc. 16), filed on October 15, 2018.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b),
the parties have consented to me serving as the presiding
judge and entering final judgment. See Docs. 3, 5,
6. Having considered the record, submissions of counsel,
and relevant law, the Court finds Plaintiff's motion is
well-taken and will be granted.
Allison Meloy (Plaintiff) protectively filed an application
with the Social Security Administration for Disability
Insurance Benefits (DIB) under Title II of the Social
Security Act on December 12, 2013. See
Administrative Record (AR) at 182, 255-61. Plaintiff alleged a
disability onset date of July 1, 2006. See AR at
255. Because Plaintiff's earning record showed that she
had “acquired sufficient quarters of coverage to remain
insured through December 31, 2013[, ]” she was required
to “establish disability on or before that date in
order to be entitled to a period of disability and
[DIB].” AR at 12.
Determination Services determined that Plaintiff was not
disabled both initially (AR at 174-82) and on reconsideration
(AR at 183-92). Plaintiff requested a hearing with an
Administrative Law Judge (ALJ) on the merits of her
application. AR at 203. Both Plaintiff and a vocational
expert (VE) testified during the de novo hearing.
See AR at 113-73. ALJ Cole Gerstner issued an
unfavorable decision on October 19, 2016. AR at 9-31.
Plaintiff submitted a Request for Review of ALJ Decision to
the Appeals Council (AR at 253-54), which the council denied
on February 22, 2018 (AR at 1-6). Consequently, the ALJ's
decision became the final decision of the Commissioner.
Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
Applicable Law and the ALJ's Findings
claimant seeking disability benefits must establish that 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); see also 20 C.F.R. § 404.1505(a).
The Commissioner must use a sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §
404.1520(a)(4); see also Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009).
claimant has the burden at the first four steps of the
process to show: (1) she is not engaged in “substantial
gainful activity”; (2) she 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) her
impairment(s) meet or equal one of the listings in Appendix
1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant's residual functional capacity
(RFC), she is unable to perform her past relevant work. 20
C.F.R § 404.1520(a)(4)(i-iv); see also Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)
(citations omitted). “RFC is a multidimensional
description of the work-related abilities [a claimant]
retain[s] in spite of her medical impairments.”
Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660,
at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404,
Subpt. P, App. 1 § 12.00(B); 20 C.F.R. §
404.1545(a)(1)). If the claimant meets “the burden of
establishing a prima facie case of disability[, ] . . . the
burden of proof shifts to the Commissioner at step five to
show that” the claimant retains sufficient RFC
“to perform work in the national economy, given his
age, education, and work experience.” Grogan,
399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d
748, 751 & n.2 (10th Cir. 1988) (internal citation
omitted)); see also 20 C.F.R. §
One of the process,  ALJ Gerstner found that while Plaintiff
worked in several part-time positions from 2006-2010 and made
two “unsuccessful work attempts” in 2012-2013,
she “did not engage in substantial gainful activity
since July 1, 2006, the alleged onset date.” AR at 14
(citing 20 C.F.R. §§ 404.1571-1576). At Step Two,
the ALJ concluded that Plaintiff “had the following
severe impairments: ulcerative colitis; migraine headaches;
eczema; and depression.” AR at 14 (citing 20 C.F.R.
§ 404.1520(c)). ALJ Gerstner also noted that
Plaintiff's “asthma was a ‘non-severe'
impairment” because “[t]here [was] no evidence
that [her] asthma was greater than a slight abnormality or
that it resulted in more than a minimal effect on [her]
ability to perform basic work activities during the”
relevant time period. AR at 15.
Three, the ALJ found that Plaintiff “did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 15 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526). Ultimately, the ALJ found
that through the date last insured, Plaintiff had the [RFC]
to perform a limited range of light work as defined in 20
[C.F.R. §] 404.1567(b) as follows:
• [She] was able to lift and/or carry no more than 20
pounds occasionally and 10 pounds frequently;
• [She] was able to stand and/or walk and sit for
approximately six hours in an eight-hour workday;
• [She] was able to perform pushing and pulling from a
seated position within the above weight restrictions; and
• [She] would be able to understand, remember, and carry
out simple, routine, and repetitive tasks and make simple
AR at 17. The ALJ further determined that, through the date
last insured, Plaintiff could not perform her past relevant
work, but she could perform the jobs of cashier II, mail
sorter, and furniture rental clerk. AR at 24-25. Ultimately,
the ALJ found that Plaintiff “was not under a
disability, as defined in the Social Security Act, at any
time from July 1, 2006, through December 31, 2013, the date
last insured.” AR at 26 (citing 20 C.F.R. §
Court must “review the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds
for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161, 1166 (10th Cir. 2012) (citation omitted).
evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'” Lax, 489 F.3d at 1084
(quoting Hackett, 395 F.3d at 1172 (internal
quotation omitted)). “It requires more than a
scintilla, but less than a preponderance.” Id.
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004) (internal quotation omitted) (alteration in
original)). The Court will “consider whether the ALJ
followed the specific rules of law that must be followed in
weighing particular types of evidence in disability cases,
but [it] will not reweigh the evidence or substitute [its]
judgment for the Commissioner's.” Id.
(quoting Hackett, 395 F.3d at 1172 (internal
quotation marks and quotations omitted)).
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial evidence.”
Id. (quoting Zoltanski, 372 F.3d at 1200
(internal quotation omitted)). The Court “may not
‘displace the agenc[y's] choice between two fairly
conflicting views, even though the [C]ourt would justifiably
have made a different choice had the matter been before it de
novo.'” Id. (quoting Zoltanski,
372 F.3d at 1200 (internal quotation omitted)).
contends that the following issues require reversal: (1) the
ALJ did not properly evaluate Plaintiff's subjective
complaints pursuant to SSR 16-3p; (2) the ALJ did not
adequately assess the opinion of Dr. Michael Gavin, M.D.; (3)
the ALJ misstated the VE's testimony about the number of
days Plaintiff could miss in a month; and (4) the ALJ failed
to resolve conflict between the VE's testimony and the
requirements of the jobs the ALJ found Plaintiff could
perform. Doc. 16 at 3-16.
The ALJ's evaluation of Plaintiff's subjective
complaints is supported by substantial evidence.
Security Ruling 16-3p defines the two-step process an ALJ
must use to evaluate a claimant's symptoms. SSR 16-3p,
2017 WL 5180304 (Oct. 25, 2017). At the first step, the ALJ
“consider[s] whether there is an underlying medically
determinable physical or mental impairment that could
reasonably be expected to produce [the] individual's
symptoms, such as pain.” Id. at *3. At the
second step, after the ALJ has found such an impairment, the
ALJ “evaluate[s] the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit
[the] individual's ability to perform work-related
activities . . . .” Id.
As part of the step two evaluation, the ALJ considers the
record evidence, the claimant's statements, medical and
non-medical source statements, and the non-exhaustive list of
factors in ...