United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Maria Ann Egan's
(“Ms. Egan”) Motion to Reverse and Remand for a
Rehearing with Supportive Memorandum (Doc. 19)
(“Motion”), filed November 21, 2018, seeking
review of the decision of Defendant Nancy A. Berryhill,
Acting Commissioner of the Social Security Administration
(“Commissioner”) denying Ms. Egan's claim for
Title II disability insurance benefits and Title XVI
supplemental security income benefits under 42 U.S.C.
§§ 405(g) and 1383(c)(3). The Commissioner filed a
response in opposition to the Motion on January 25, 2019,
(Doc. 21), and Ms. Egan filed a reply in support of the
Motion on February 7, 2019. (Doc. 23.) Having meticulously
reviewed the entire record and the applicable law and being
otherwise fully advised, the Court FINDS that Ms. Egan's
Motion is well taken and should be GRANTED.
Standard of Review
Court must affirm the Commissioner's final decision
denying social security benefits unless: (1)
“substantial evidence” does not support the
decision; or, (2) the Administrative Law Judge
(“ALJ”) did not apply the correct legal standards
in reaching the decision. 42 U.S.C. §§ 405(g),
1383(c)(3); Maes v. Astrue, 522 F.3d 1093, 1096
(10th Cir. 2008); Hamlin v. Barnhart, 365 F.3d 1208,
1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d
1116, 1118 (10th Cir. 2004). The Court must meticulously
review the entire record but may “neither reweigh the
evidence nor substitute [its] judgment for that of the
agency.'” Bowman v. Astrue, 511 F.3d 1270,
1272 (10th Cir. 2008); 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. 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. Although the
Court may not re-weigh the evidence or try the issues de
novo, its consideration of the record must include
“anything that may undercut or detract from the
[agency]'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
agency's] findings from being supported by substantial
evidence.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007).
agency decision must “provide this court with a
sufficient basis to determine that appropriate legal
principles have been followed.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Thus,
although an ALJ is not required to discuss every piece of
evidence, “the record must demonstrate that the ALJ
considered all of the evidence, ” and “the ALJ .
. . must discuss the uncontroverted evidence he chooses not
to rely upon, as well as significantly probative evidence he
rejects.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996).
Disability Determination Process
person must be “under a disability” to qualify
for disability insurance benefits under Title II. 42 U.S.C.
§ 423(a)(1)(E). Similarly, a “disabled”
person may qualify for supplemental security income benefits
under Title XVI. 42 U.S.C. § 1382(a)(1). An individual
is considered to be “under a disability” if she
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).
Commissioner has adopted a five-step sequential analysis to
determine whether a person satisfies the statutory criteria:
(1) At step one, the ALJ must determine whether the claimant
is engaging in “substantial gainful
activity.” If the claimant is engaging in substantial
gainful activity, she is not disabled regardless of her
(2) At step two, the ALJ must determine the severity of the
claimed physical or mental impairment(s). If the claimant
does not have an impairment (or combination of impairments)
that is severe and meets the duration requirement, she is not
(3) At step three, the ALJ must determine whether a
claimant's impairment meets or equals in severity one of
the listings described in Appendix 1 of 20 C.F.R. Part 404,
Subpart P, and meets the duration requirement. If so, a
claimant is presumed disabled.
(4) If none of the claimant's impairments meet or equal
one of the listings, the ALJ must determine at step four
whether the claimant can perform her “past relevant
work.” This step involves three phases. Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the
ALJ must consider all of the relevant evidence and determine
what is “the most [claimant] can still do despite [her
physical and mental] limitations.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). This is called
the claimant's residual functional capacity
(“RFC”). Id. Second, the ALJ must
determine the physical and mental demands of the
claimant's past work. Third, the ALJ must determine
whether, given the claimant's RFC, the claimant is
capable of meeting those demands. A claimant who is able to
perform her past relevant work is not disabled.
(5) If the claimant is unable to perform her past relevant
work, the Commissioner, at step five, must show that the
claimant is able to perform other work in the national
economy, considering the claimant's RFC, age, education,
and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however,
the Commissioner is able to make the required showing, the
claimant is deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th
Cir. 2005); Grogan, 399 F.3d at 1261. The claimant
has the initial burden of establishing a disability in the
first four steps of this analysis. Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987). The burden shifts to the
Commissioner at step five to show that the claimant is
capable of performing other work in the national economy.
Id. A finding that the claimant is disabled or not
disabled at any point in the five-step evaluation process is
conclusive and terminates the analysis. Casias v.
Sec'y of Health & Human Servs., 933 F.2d 799,
801 (10th Cir. 1991); 20 C.F.R. §§ 404.1520(a)(4),
Background and Procedural History
Egan alleges that she became disabled on January 6, 2014 at
fifty-eight years of age due to cervical spondylosis,
degeneration of lumbar intervertebral discs, asthma, and
thyroid problems. (AR 78, 90.) Previously, Ms. Egan was an
information technology (“IT”) professional who
did government contract work. (AR 36-38, 84, 244, 260,
Egan moved from California to Virginia in or about 2004. (AR
36-37, 377, 425-37.) She had a cervical MRI at the Virginia
Hospital Center on July 5, 2005. (AR 774-75.) Neurosurgeon
Charles Riedel, M.D., ordered the MRI, which documented
“[m]oderately severe spondylotic changes of the
cervical spine” and “[m]oderate canal stenosis at
L 5-C6 with signal abnormality in the cord which could
indicate edema versus myelomalacia.” (Id.) Dr.
Riedel performed a cervical discectomy with C5-C6 fusion on
Ms. Egan in 2006. (AR 444, 571.) Ms. Egan had another
cervical MRI in December 2010. (AR 449-50.)
Egan saw her primary care physician, Kathryn Dreger, M.D.,
four times in late 2013 for a comprehensive medical
examination and follow-up appointments for hypothyroidism and
migraines. (AR 361-62, 366-67, 370-71, 376-77.) At none of
these appointments did Ms. Egan complain of back or neck
pain; and, at her November 11, 2013 comprehensive medical
examination, Dr. Dreger noted that Ms. Egan's “neck
has been ‘doing great, '” and that there was
“[n]o misalignment, asymmetry, crepitation, defects,
tenderness, masses, effusions, decreased range of motion,
instability, atrophy or abnormal strength or tone in the
head, neck, spine, ribs, pelvis or extremities.” (AR
January 6, 2014, Dr. Riedel saw Ms. Egan and noted that she
had “hurt herself” two days earlier by putting on
a “heavy army pack.” (AR 444.) In addition to
chronic weakness in her left arm, Dr. Riedel noted that Ms.
Egan had developed acute lower back pain with sciatica and
had been to the emergency room, where she was given muscle
relaxants and analgesics. (Id.) Dr. Riedel ordered
cervical and lumbar MRIs, a nerve conduction study and
electromyography (“EMG”), and physical therapy.
(AR 444-50.) The cervical and lumbar MRIs were performed at
the Virginia Hospital Center on January 17, 2014, and the
nerve conduction study and EMG at Northern Virginia
Neurologic Associates on June 20, 2014. (AR 445-50.) In
addition, Ms. Egan attended about nineteen physical therapy
appointments with Thomas Daly, P.T., between January 22 and
June 25, 2014. (AR 493-519, 636-40.) Ms. Egan also had
follow-up appointments with Dr. Riedel on March 17, May 22,
and July 15, 2014. (AR 441-43.) On May 22, 2014, Dr. Riedel
noted that physical therapy had been “very
helpful” regarding Ms. Egan's lower back pain, but
that the pain in her interscapular area and numbness in her
hands was “not responding as well to her
therapy.” (AR 442-43.) On July 15, 2014, based on Ms.
Egan's history, physical examinations, and test results,
Dr. Riedel diagnosed Ms. Egan with cervical stenosis C3-C4,
C4-C5, and C6-C7 status post prior C5-C6 fusion, chronic left
C6 radiculopathy, and lumbar degenerative disc disease and
spondylosis with scoliosis, as well as carpal tunnel
syndrome. (AR 441.)
Dreger saw Ms. Egan four times during the first half of 2014
as well. (AR 347-57.) Specifically, on January 31, 2014, Dr.
Dreger recorded that Ms. Egan had injured herself by bending
backwards while lifting weights at a hotel and reported
“much anterior pain.” (AR 356.) On February 14,
2014, she noted that physical therapy was helping and that
Ms. Egan reported bad days and good days. (AR 353.) On March
27, 2014, Dr. Dreger indicated that Ms. Egan did not want
injections and did not need surgery but was using a cane to
walk, still having pain in her hip, leg, hands, and arms, and
taking Vicodin for pain. (AR 350.) She also noted that
Ms. Egan had difficulty getting onto the exam table at this
appointment. (AR 351.) Finally, on June 27, 2014, Dr. Dreger
recorded that Ms. Egan was attending physical therapy, seeing
Dr. Riedel, and “doing ‘real well.'”
Egan made an unsuccessful attempt to return to work after
January 6, 2014 but then filed for short-term disability
benefits from private insurer UNUM on February 20, 2014. (AR
251, 782-83.) Her short-term disability benefits were
ultimately converted to long-term disability benefits, and
she never returned to work. (AR 38-39, 331.) She moved to New
Mexico in October 2014 to be near her mother and sister. (AR
Egan completed two adult function reports, on November 20,
2014 and June 12, 2015. (AR 277-84, 294-301.) On November 20,
2014, Ms. Egan indicated, inter alia, that she had
no problems with personal care, that she microwaved frozen
dinners for meals, that a family member did her household
chores, driving, and shopping because she was unable to do
so, and that she used a cane and a neck brace. (AR 277-84.)
On June 12, 2015, Ms. Egan indicated, inter alia,
that she had difficulty dressing with buttons, doing her
hair, shaving, and driving, that she prepared microwaved
frozen dinners and sandwiches for meals, that she cleaned up
after meals, cleaned house, vacuumed, dusted, mopped, and did
laundry and yard work, that she walked, drove, and was able
to go out alone, that she shopped for groceries in a store
every other weekend, that she sometimes did Pilates, and that
she used a cane and neck/back brace. (AR 294-301.) On both
dates, she indicated that she lived alone and did not take
care of anyone else. (AR 277-78, 294-95.)
September 16, 2015, Ms. Egan established with primary care
physician Rosa Galvez, M.D., at Lovelace Medical Group in
Albuquerque. (AR 720-24.) At this appointment, inter
alia, Ms. Egan reported fluctuating back pain and
severe, worsened neck pain. (AR 720.) Dr. Galvez referred Ms.
Egan for physical therapy and to neurosurgeon Andrew Metzger,
M.D.,  and prescribed Vicodin, rizatriptan,
and levothyroxine. (AR 723.) Dr. Galvez saw Ms. Egan on
five more occasions: October 19 and December 22, 2015, and
January 25, February 22, and March 31, 2016. (AR 667-719.) On
October 19, 2015, Dr. Galvez added gabapentin to Ms.
Egan's prescriptions. (AR 713-19.) On December 22, 2015,
Ms. Egan reported that her lower back and neck pain were
worsening. (AR 688-94.) Dr. Galvez noted improvement of
symptoms with physical therapy and that Ms. Egan had elected
to continue exercises at home. (AR 694.) On January 25, 2016,
Ms. Egan reported severe upper, middle, and lower back pain
with numbness; and, Dr. Galvez added Lisinopril to Ms.
Egan's prescriptions. (AR 682-83, 686.) On February 22,
2016, Dr. Galvez noted that Ms. Egan's back pain was
“stable and well controlled.” (AR 680-81.) On
March 31, 2016, Ms. Egan reported moderate bilateral hand and
toe numbness, worsened neck and lower back pain, and
bilateral arm weakness and numbness. (AR 667-71.) According
to Dr. Galvez, at this appointment Ms. Egan did not feel
injections were warranted and requested a referral to a pain
management specialist, which Dr. Galvez provided.
(Id.) Ms. Egan also had an appointment with Dr.
Galvez on September 12, 2016 but left without being seen. (AR
Egan began attending physical therapy with Charlie Abadie,
P.T., at Lovelace Rehabilitation Hospital on September 25,
2015. (AR 730-34.) On that date, Mr. Abadie noted that Ms.
Egan was independent in her daily living activities including
self-care, cooking, cleaning, driving, and community outings.
(AR 731.) He also noted that she sometimes wore a neck collar
at home and occasionally used a cane. (Id.) He
further stated that, “[d]espite her lengthy history of
issues and moderate-to-severe nature of pain issues from time
to time, this patient performs quite well during
evaluation.” (AR 734.) More specifically, he observed
that Ms. Egan had slightly flat back and forward head
posture, somewhat limited range of motion for cervical
extension and lower back flexion, slight tenderness or
tightness at the lower back, some tightness chiefly into neck
extension and lower back flexion, and otherwise normal
examination findings. (AR 731-33.)
Egan participated in physical therapy with Mr. Abadie on
September 29, 2015 and October 13, 2015. (AR 739, 741). She
canceled her appointments on October 7, 2015 and October 20,
2015, on the latter date reporting that she was “in too
much pain.” (AR 740, 742.) She arrived late for her
appointment on October 30, 2015, and although Mr. Abadie was
not able to treat her, he did speak with her for about twenty
minutes. (AR 743.) On this occasion, Mr. Abadie advised Ms.
Egan that she did not necessarily need to make up the visits
she had missed as long as she started to focus on herself
when doing her home exercises. (AR 743.) Mr. Abadie
discharged Ms. Egan on November 16, 2015 for nonattendance.
Blazek, M.D., saw Ms. Egan twice for pain management, on
November 2, 2016 and December 7, 2016. (AR 756-61, 768-72.)
On examination at both appointments, he noted decreased
strength and sensation in Ms. Egan's arms, hands, and
ankles. (Id.) He further noted that Ms. Egan had no
interest in blocks for her pain, wished to continue with
gabapentin and hydrocodone for pain management, and agreed to
abide by a narcotic agreement. (AR 758.) At her first
appointment with Dr. Blazek, test results indicated and Ms.
Egan confirmed that she also smoked marijuana for pain
January 26, 2017 hearing before the ALJ, Ms. Egan testified
that she was living with her mother and engaging in minimal
daily living activities, including preparing simple meals,
reading, watching television, getting medication for herself
and her mother, and providing her mother with companionship.
(AR 35, 42-44.) According to Ms. Egan's testimony, the
following conditions prevent her from working: numbness in
her hands and arms, which prevents her from typing, writing,
buttoning clothes, grasping, handling, and fingering; back
pain and numbness in her legs when she sits; limited range of
motion in her arms; lack of concentration and disrupted
sleep; and, migraine headaches. (AR 45-51, 58-59, 63.) Ms.
Egan further testified that, on a good day, her pain with
medication is between 7 and 8 on a 10-point scale. (AR
record includes the following medical opinion evidence. On
February 19, April 14, April 25, June 11, and August 6, 2014,
Dr. Riedel completed forms in support of the short- and
long-term disability claims Ms. Egan filed with UNUM. (AR
475-77, 480-81, 522-23, 629-30, 782-83.) Dr. Riedel expressed
opinions regarding Ms. Egan's functional restrictions and
limitations on these forms. (Id.) In addition, Dr.
Riedel completed a form for the Virginia Employment
Commission on August 4, 2014, on which he opined about Ms.
Egan's ability to work. (AR 190.)
March 17, 2014, Mr. Daly completed a form for UNUM in support
of Ms. Egan's short-term disability claim, in which he
expressed an opinion about Ms. Egan's functional
restrictions and limitations. (AR 454-55.)
February 21, 2015, state agency consultative examiner Roxanna
Phillips, M.D., reported that she was “[u]nable to
determine” Ms. Egan's functional limitations
because she was “unsure of the validity of [Ms.
Egan's] responses.” (AR 652, 657.)
March 11, 2015, non-examining medical consultant Robert Redd,
M.D., opined regarding Ms. Egan's RFC at initial
consideration; and, on June 10, 2015, non-examining medical
consultant S. Williams, M.D., opined regarding Ms. Egan's
RFC at reconsideration. (AR 86-87, 110-11.)
in an undated, hand-written note with no supporting
documentation, Basil Abramowitz, M.D., expressed an opinion
regarding Ms. Egan's functional restrictions and
limitations. (AR 659.)
August 11, 2014, Ms. Egan protectively filed applications for
disability insurance benefits under Title II, and
supplemental security income benefits under Title XVI, of the
Social Security Act, alleging an onset date of January 6,
2014. 42 U.S.C. §§ 401 et seq.; 42 U.S.C.
§§ 1381 et seq.; (AR 12, 76-77, 90, 96,
102, 114.) The agency denied Ms. Egan's applications at
the initial level and upon reconsideration on March 11, 2015
and June 23, 2015, respectively. (AR 76-77, 126-27.) On
August 13, 2015, Ms. Egan requested a hearing before an ALJ.
(AR 141.) ALJ Michael Leppala conducted a hearing on January
26, 2017. (AR 29-75.) Ms. Egan appeared in person at the
hearing with attorney representative Michael Armstrong.
(Id.) The ALJ took testimony from Ms. Egan and from
impartial vocational expert (“VE”) Valerie
Rodriguez. (Id.) On May 3, 2017, the ALJ ...