United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
(Doc. 16) filed on November 14, 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. 4, 7, 8. Having
considered the record, submissions of counsel, and relevant
law, the Court finds Plaintiff's motion is not well-taken
and will be denied.
4, 2015, Mr. Christobal Vigil (Plaintiff) filed applications
with the Social Security Administration for a period of
disability and disability insurance benefits under Title II
of the Social Security Act (SSA), and for Supplemental
Security Income (SSI) under Title XVI of the SSA.
Administrative Record (AR) at 33, 271-88. Plaintiff originally
alleged a disability onset date of January 1, 1996. AR at 33,
271. The Administrative Law Judge (ALJ) noted that Plaintiff
“has acquired sufficient quarters of coverage to remain
insured through June 30, 2008. Thus, [he was required to]
establish disability on or before that date in order to be
entitled to a period of disability and disability insurance
benefits” pursuant to Title II. AR at 34.
12, 2017, however, Plaintiff, through his attorney, amended
the disability onset date to May 4, 2015, thus dismissing his
claim under Title II. AR at 33, 260. His claim for SSI,
however, remained pending. “While a Title II claimant
seeking disability insurance benefits must prove disability
prior to her [date last insured], there is no such
requirement for Title XVI claimant seeking SSI.”
Gabaldon v. Barnhart, 399 F.Supp.2d 1240, 1250
(D.N.M. 2005) (citing SSR 83-20, 1983 WL 31249, at *1 (Jan.
Determination Services (DDS) determined that Plaintiff was
not disabled both initially (AR at 111-13) and on
reconsideration (AR at 149-51). Plaintiff requested a hearing
with an Administrative Law Judge (ALJ) on the merits of his
applications. AR at 210-11.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 78-110. ALJ Cole
Gerstner issued an unfavorable decision on November 6, 2017.
AR at 30-54. Plaintiff submitted a Request for
Reconsideration to the Appeals Council (AR at 196-97), which
the council denied on May 25, 2018 (AR at 1-6). Consequently,
the ALJ's decision became the final decision of the
Commissioner. See Doyal v. Barnhart, 331 F.3d 758,
759 (10th Cir. 2003).
Applicable Law and the ALJ's Findings
claimant seeking disability benefits must establish that he
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. § 416.905(a).
The Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R.
§ 416.920(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) he is not engaged in “substantial
gainful activity”; (2) he 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) his 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), he is unable to perform
his past relevant work. 20 C.F.R § 416.920(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 [his] medical
impairments.” 20 C.F.R. § 404, Subpt. P, App. 1
§ 12.00(B); see also 20 C.F.R. §
416.945(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 Plaintiff
“has not engaged in substantial gainful activity since
May 4, 2015 . . . .” AR at 36 (citing 20 C.F.R.
§§ 404.1571-1576, 416.971-976). At Step Two, the
ALJ concluded that Plaintiff “has the following severe
impairments: posttraumatic stress disorder [PTSD]; and
bipolar disorder.” AR at 36 (citing 20 C.F.R.
§§ 404.1520(c), 416.920(c)). The ALJ noted the
following non-severe impairments: “lumbago, hepatitis
C, gastroesophageal reflux disease (GERD), agoraphobia with
panic disorder, panic disorder without agoraphobia[, ] and
drug dependency in remission.” AR at 36.
Three, the ALJ found that Plaintiff “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 38 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926). In making his determination, ALJ Gerstner
considered listings 12.04 (affective disorders) and 12.15
(trauma- and stressor-related disorders). AR at 38. Regarding
Plaintiff's mental impairments, ALJ Gerstner first
examined whether they met the “paragraph B”
criteria. He found that Plaintiff has moderate limitations in
the areas of understanding, remembering, or applying
information; interacting with others; and concentrating,
persisting, or maintaining pace; and mild limitations in the
area of adapting or managing oneself. AR at 38-39. Because
Plaintiff's “mental impairments do not cause at
least two ‘marked' limitations or one
‘extreme' limitation, the ‘paragraph B'
criteria [were] not satisfied.” AR at 39. The ALJ also
determined that Plaintiff did not meet the “paragraph
C” criteria. AR at 39.
Four, the ALJ explained that while Plaintiff's
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms[, ]” his
“statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in
the record . . . .” AR at 41. Ultimately, the ALJ found
has the [RFC] to perform a full range or work at all
exertional levels but with the following nonexertional
limitations: he is limited to work involving the performance
of simple, routine tasks. He is limited to making simple
work-related decisions. He can occasionally interact with
supervisors and coworkers, but he can have only incidental
contact with the general public.
AR at 39. ALJ Gerstner found that Plaintiff “has no
past relevant work” (AR at 46), but he is able to
perform the positions of dishwasher, warehouse worker, auto
detailer, advertising material distributor, marker, photo
copy machine operator, and router (AR at 47). The ALJ
ultimately determined that Plaintiff “has not been
under a disability, as defined in the Social Security Act,
from May 4, 2015, through the date of [the ALJ's]
decision.” AR at 47 (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).
“Substantial 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 court 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)).