United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 12) filed June 13, 2018, in
support of Plaintiff Dario Ramon Ochoa's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration
(“Defendant” or “Commissioner”),
denying Plaintiff's claim for disability insurance
benefits under Title II of the Social Security Act (the
“Act”), 42 U.S.C. § 401 et seq. On
August 16, 2018, Plaintiff filed his Motion to Reverse and
Remand for a Rehearing With Supporting Memorandum
(“Motion”). Doc. 15. The Commissioner filed a
Brief in Response on October 16, 2018 (Doc. 17), and
Plaintiff filed a Reply on November 7, 2018. Doc. 20. The
Court has jurisdiction to review the Commissioner's final
decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the
applicable law and being fully advised in the premises, the
Court finds the Motion is not well taken and is
Dario Ochoa (“Mr. Ochoa”) suffers from the
following severe impairments: lumbar arthralgias; abdominal
pain of unknown etiology; spine disorders; obesity; anxiety;
and depression. Administrative Record (“AR”) at
He alleges that he became disabled at least as of March 1,
2011. AR 76, 77, 266, 1138. He completed high school and two
years of college and had past relevant work as a driver for
United Parcel Service (“UPS”). AR 230-31.
April 1, 2014, Mr. Ochoa filed concurrent claims of
disability under Title II and Title XVI. As of April 2, 2014,
Mr. Ochoa was found to be disabled and awarded supplemental
security income (SSI). AR 64-71. Mr. Ochoa's Title II
application, however, was denied on August 18, 2014, and upon
reconsideration on January 29, 2015. AR 77-78. Mr. Ochoa
requested a hearing before an Administrative Law Judge
(“ALJ”), and ALJ James Linehan conducted a
hearing on January 11, 2017. AR 33-63. Mr. Ochoa appeared in
person at the hearing with attorney representative Jonathan
Woods. Id. The ALJ took testimony from Mr. Ochoa and
an impartial vocational expert, Melissa P. Brassfield.
Id. On February 9, 2017, ALJ Linehan issued an
unfavorable decision. AR 10-19.
January 26, 2018, the Appeals Council issued its decision
denying Mr. Ochoa's request for review and upholding the
ALJ's final decision. AR 1-6. On March 27, 2018, Mr.
Ochoa timely filed a Complaint seeking judicial review of the
Commissioner's final decision. Doc. 1.
October 9, 2007, Mr. Ochoa presented to UNMH Internal
Medical, Dr. Howard Waitzkin, with a variety of complaints.
AR 467. Mr. Ochoa reported that he had been suicidal after
his divorce, but not recently. AR 469. “He was in
counseling which helped. He is feeling better now
emotionally.” Id. “His depression seems
to be improving to some extent.” Id. Dr.
Waitzkin noted that Mr. Ochoa experienced weight gain which
“might be related to psychological issues.”
Id. On November 7, 2007, however, Mr. Ochoa denied
having any depression to Dr. Waitzkin. AR 463. By December
2007, Dr. Waitzkin was of the opinion that Mr. Ochoa's
many unsubstantiated complaints of pain were possibly due to
somatization and he found it necessary to “frankly
discuss the possibility of psychotherapy” with Mr.
Ochoa. AR 461.
August of 2008, UNMH rheumatology confirmed that Mr. Ochoa
had “chronic pain syndrome without any clear
etiology.” AR 456. In November, Andrea Weiss, PA-C,
noted that Mr. Ochoa suffered from an “[u]nexplained
constellation of symptoms.” AR 454. She explained:
“I am not clear about the etiology of this, but I
suspect that the patient does have some form of depression,
which is untreated. He has declined mental health medication
and referrals in the past.” Id.
early 2009, Mr. Ochoa expressed “that he has been so
miserable that he wants to see a psychiatrist, ” an
action PAC Weiss endorsed. AR 404-05. She described his
symptoms as “psychosomatic” and opined that he
“probably has some undiagnosed form of mental
illness.” AR 405. As for Mr. Ochoa's
“continuing sleep problems, ” she
“suspect[ed] that this is part of his undiagnosed
mental health disorder which I feel is several fold,
depression, somewhat anxiety and perhaps even a personality
disorder and some hypochondriasis.” Id.
February 2009, the Gastroenterology Clinic saw Mr. Ochoa and
noted that “[t]he patient thinks that he may have
anxiety and depression and is working on this with Andrea
Weiss.” AR 393. The clinician Dr. Martin Kistin also
noted that Mr. Ochoa “works part-time as a helper for a
friend of his who does construction.” Id. In
the fall of 2009, Mr. Ochoa was still complaining of
“some anxiety, ” AR 309, and Dr. Akshay Sood
observed that “although he does complain of anxiety
issues, ” Mr. Ochoa “has no known psychiatric
illnesses.” AR 384.
2010, Mr. Ochoa presented to establish care with First Choice
Community Healthcare complaining of muscle pain, aches,
digestive problems, and fatigue. AR 303. Treatment notes
describe him as “still disturbed” and not using
anxiety medication because it bothered his stomach.
Id. The assessment was back pain and depression and
he was prescribed Prozac. Id. He continued to treat
at First Choice, who refused to give him narcotics. AR 311.
October 26, 2010, Mr. Ochoa presented to the UNM Emergency
Department (“ED”) suffering from substance
withdrawal. AR 388. He had run out of his prescribed
oxycodone two days earlier, and reported a recent suicide
attempt because he was “afraid to live in pain.”
Id. At the same time, Mr. Ochoa “denied
current h[istory] o[f] psychotic symptoms.”
Id. The RN noted he “reports withdrawal
symptoms of back and stomach pain, nausea, joint and general
body pain, along with increasing levels of depression and
anxiety.” Id. He was referred to the
Bernalillo Metropolitan Assessment and Treatment Services
(“MATS”) Detox program, id., but there
are no treating records from this facility.
March 2011, Mr. Ochoa was back at the Gastroenterology
Clinic, where his psychiatric history was reviewed with the
patient and was negative. AR 447. One of the diagnoses was
instead “[c]hronic narcotic use.” AR 448. On
April 3, 2011, three days after his date of last insured, Mr.
Ochoa again presented to the ED “because he ran out of
his pain meds and told them that he was suicidal, which is
how he feels only when he runs out of his pain meds.”
AR 699. On April 4, he stated that “[w]hen he's on
pain meds all is well, he's been on them for 6 years,
when he's close to running out he feels depressed, and
last evening he felt very badly.” Id. The
record indicated he had no past psychiatric diagnoses.
Id. He reported he saw a therapist 7 years ago for
depression and “mostly chronic pain” but it did
not help. Id. “He doesn't want therapy as
he's not ready to deal with his pain med addiction, and
doesn't think that therapy works for him. Doesn't
want behavioral health services.” AR 701.
same date, CNP Jacqueline Stoll reported that “[h]e
denies any difficulty with anxiety except when he is going
through drug withdrawal” and diagnosed him with
“Pain associated with psychological factors (307.8),
Opiate induced mood disorder, [and] Opiate dependence.”
AR 802. Her qualitative assessment was Mr. Ochoa had a
“[h]istory of suicidal ideation when in opiate
withdrawal and a history of chronic pain as well as multiple
other medical complaints of questionable origin.” AR
803. She stated that Mr. Ochoa “is being referred for
Crisis Counseling which he agrees to. Discussed with him the
possibility of pursing counseling regarding his opiate use
and problems it has caused him. He is not willing to consider
antidepressant therapy at this time.” Id.
October 2012, Mr. Ochoa treated with Dr. Fawcell in the
Department of Psychiatry. AR 797-802. Her notes indicate that
Mr. Ochoa had undergone prior treatment for depression and
had been prescribed medication with little effect. AR 800.
She recommended psychotherapy and Mr. Ochoa ...