United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
H. RITTER, U.S. MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Lauralee Emma
Lopez' Motion to Reverse and Remand for a Rehearing with
Supporting Memorandum [Doc. 16], filed July 27, 2018.
Pursuant to 28 U.S.C. § 636(b), this matter has been
referred to the undersigned Magistrate Judge for a
recommended disposition. [Doc. 17]. Having studied the
parties' submissions, the relevant law, and the relevant
portions of the Administrative Record
(“AR”),  the Court recommends that Ms.
Lopez' Motion be granted for the reasons
set forth below.
Commissioner sought the expertise of a consultative mental
examiner when deciding (and ultimately denying) Ms.
Lopez' claim. This consultative examiner assessed several
moderate mental limitations that would affect Ms. Lopez'
work-related mental functioning. The Commissioner's
Administrative Law Judge (“ALJ”) gave these
findings “great weight” yet omitted them from Ms.
Lopez' residual functional capacity (“RFC”),
without explanation. However, case law is clear that the
Commissioner may not omit uncontroverted moderate mental
limitations identified by a psychiatrist or psychologist when
formulating a claimant's RFC. As such, the Court has no
choice but to recommend that the Commissioner's decision
in this case be reversed and remanded for further
administrative review. This is not to say that Ms. Lopez
deserves benefits. On remand the Commissioner may still
conclude that she retains the RFC to perform work which
exists in the national economy. However, without the correct
analysis, the Court cannot confidently say that Ms.
Lopez' RFC should not be more restrictive than was found
Lopez filed an application with the Social Security
Administration for disability insurance benefits under Title
II of the Social Security Act on January 22, 2015.
AR at 190-196. As grounds, Ms. Lopez alleged back
problems, depression, and a blood infection. AR at
220. Ms. Lopez alleged that her conditions became severe
enough to keep her from working on December 19, 2014.
AR at 220. The Administration denied Ms. Lopez'
claim initially and upon reconsideration, and she requested a
de novo hearing before an ALJ. AR at
Raul Pardo (“the ALJ”) held an evidentiary
hearing on February 15, 2017. AR at 61-92. On April
19, 2017, the ALJ issued an unfavorable decision, finding
that Ms. Lopez has not been under a disability from her
alleged onset date through the date of his decision.
AR at 44-56. In response, Ms. Lopez filed a
“Request for Review of Hearing Decision/Order” on
April 21, 2017. AR at 187-189. After reviewing her
case, the Appeals Council denied Ms. Lopez' request for
review on January 12, 2018. AR at 1-6. As such, the
ALJ's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003). This Court now has jurisdiction to review
the decision pursuant to 42 U.S.C. § 405(g) and 20
C.F.R. § 422.210(a).
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); 20 C.F.R. § 404.1505(a). The Commissioner
must use a five-step sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §
One of the sequential evaluation process, the ALJ found that
Ms. Lopez has not engaged in substantial gainful activity
since her alleged onset date. AR at 46. At Step Two,
he determined that Ms. Lopez has the severe impairments of
“status post blood infection, status post vertebral
osteomyelitis, obesity, and depression.” AR at
46. At Step Three, the ALJ concluded that Ms. Lopez'
impairments, individually and in combination, do not meet or
medically equal the regulatory “listings.”
AR at 47-49. Ms. Lopez does not challenge these
findings on appeal. [See Docs. 16, 20].
claimant does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). “RFC
is an administrative assessment of the extent to which an
individual's medically determinable impairment(s),
including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and
mental activities.” SSR 96-8p, 1996 WL 374184, at *2.
“RFC is not the least an individual can do
despite his or her limitations or restrictions, but the
most.” SSR 96-8p, 1996 WL 374184, at *1. In
this case, the ALJ determined that Ms. Lopez retains the RFC
lift and/or carry twenty pounds occasionally and ten pounds
frequently. The claimant can stand and/or walk for six hours
out of an eight-hour workday with normal breaks. The claimant
can sit for six hours out of an eight-hour workday with
normal breaks. The claimant can push and/or pull twenty
pounds occasionally and ten pounds frequently. She can
occasionally climb ramps and stairs, but can never climb
ladders, ropes, or scaffolds. She can only occasionally
balance and stoop. She is limited to simple, routine tasks.
Any time off task can be accommodated by normal breaks. I
find that these limitations represent a limited range of work
at the light exertional level as defined in 20 CFR
AR at 49.
this RFC at Steps Four and Five, and relying on the testimony
of a Vocational Expert (“VE”), the ALJ determined
that Ms. Lopez is unable to return to her past relevant work
as a customer service representative or a child monitor.
AR at 54. However, the ALJ determined that there is
work that Ms. Lopez can perform that exists in the national
economy, despite her limitations. AR at 55.
Specifically, the ALJ determined that Ms. Lopez retains the
functional capacity to work as an office helper or a hand
presser. AR at 55. Accordingly, the ALJ determined
that Ms. Lopez is not disabled as defined in the Social
Security Act and denied benefits. AR at 56.