United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Josephine
Gonzalez's Motion to Reverse or Remand (Doc. 20), which
was fully briefed on October 8, 2018. Docs. 22, 24, 25, 26,
The parties consented to my entering final judgment in this
case. Doc. 19. Having meticulously reviewed the record and
being fully advised in the premises, the Court finds that the
Administrative Law Judge (“ALJ”) failed to
properly develop the record as to whether Ms. Gonzalez had
been diagnosed with fibromyalgia. The Court therefore GRANTS
Ms. Gonzalez's motion and remands this case for further
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 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).
“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
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 an administrative agency's
findings from being supported by substantial evidence. We may
not displace the agenc[y's] choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(internal quotations and citations omitted) (brackets in
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. § 416.905(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 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) 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. § 416.920(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.
Background and Procedural History
Gonzalez is a 58-year-old married woman who lives with her
husband and adult daughter. AR 37, 38, 203-04,
Ms. Gonzalez's husband works. AR 37. Her adult daughter
is disabled, and Ms. Gonzalez assists in the care of her
daughter. AR 38, 46. Ms. Gonzalez has a history of working as
a hand packer, inspector, and customer service
representative. AR 53-54, 238.
Gonzalez filed applications for Disability Insurance Benefits
on June 10, 2014, and Supplemental Security Income on July
26, 2014,  alleging disability beginning February 6,
2014, due to fibromyalgia, asthma, osteoporosis, and
arthritis. AR 192, 203-13, 236. The Social Security
Administration (“SSA”) denied her claims
initially and on reconsideration. AR 59-131, 136-41. Ms.
Gonzalez requested a hearing on April 17, 2015. AR 142-49. On
November 8, 2016, ALJ James R. Linehan held a hearing, at
which Ms. Gonzalez and a vocational expert (“VE”)
testified. AR 34-58. Ms. Gonzalez appeared at the hearing
with counsel. AR 34, 36. ALJ Linehan issued his unfavorable
decision on December 1, 2016. AR 10-33.
determined that Ms. Gonzalez met the insured status
requirements of the Social Security Act through December 31,
2018. AR 15. At step one, the ALJ found that Ms. Gonzalez had
not engaged in substantial gainful activity since February 6,
2014, the alleged onset date. Id. Because Ms.
Gonzalez had not engaged in substantial gainful activity for
at least twelve months, the ALJ proceeded to step two. At
step two, the ALJ found that Ms. Gonzalez had the following
severe impairments: “cervical degenerative disc
disease; left upper extremity tendonitis/bursitis; mild left
upper extremity carpal tunnel syndrome (CTS); osteoporosis;
osteopenia; and obesity.” AR 15 (citations omitted).
The ALJ found that Ms. Gonzalez's fibromyalgia, asthma,
and depression were non-severe. AR 16. He specifically found
that “because the file contains no evidence showing
that the claimant's fibromyalgia was diagnosed ...