United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Claimant's Motion to
Reverse the Administrative Law Judge [sic] (ALJ) Unfavorable
Decision Dated May 9, 2017 as Well as the Appeals Council
Ruling Dated May 8, 2018: Alternatively Motion to Remand Case
Back to the [ALJ] (Doc. 18) and memorandum in
support (Doc. 18-1) filed on November 27, 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. 9, 11,
12. Having considered the record, submissions of
counsel, and relevant law, the Court finds Plaintiff's
motion is not well-taken and will be denied.
April 28, 2014, Ms. Barbara Ann Romani (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 under Title XVI of the SSA.
Administrative Record (AR) at 212, 214. Plaintiff initially
alleged a disability onset date of January 20, 2014, but she
later amended that date to October 1, 2014. AR at 11, 45,
212, 214. Disability Determination Services (DDS) determined
that Plaintiff was not disabled both initially (AR at 82-83)
and on reconsideration (AR at 138-39). Plaintiff requested a
hearing with an Administrative Law Judge (ALJ) on the merits
of her applications. AR at 158-59.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 35-81. ALJ Ben
Ballengee issued an unfavorable decision on May 9, 2017. AR
at 8-26. Plaintiff submitted a Request for Review of Hearing
Decision/Order to the Appeals Council (AR at 148), which the
council denied on May 8, 2018 (AR at 1-7). 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 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); see also 20 C.F.R. §§
404.1505(a), 416.905(a). The Commissioner must use a
five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. §§
404.1520(a)(4), 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) she is not engaged in “substantial
gainful activity”; (2) she 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) her
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), she is unable to perform her past relevant work. 20
C.F.R §§ 404.1520(a)(4)(i-iv), 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 her medical
impairments.” Ryan v. Colvin, Civ. 15-0740
KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing
20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20
C.F.R. § 404.1545(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” Plaintiff
retains sufficient RFC “to perform work in the national
economy, given [her] 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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
One of the process,  ALJ Ballengee found that Plaintiff
“has not engaged in substantial gainful activity since
October 1, 2014, the alleged onset date.” AR at 13
(citing 20 C.F.R. §§ 404.1571-1576, 416.971-976).
At Step Two, the ALJ concluded that Plaintiff “has the
following severe impairments: lumbar degenerative disc
disease; myofascial pain syndrome; scoliosis or possible
spinal asymmetry; cervical degenerative disc disease; and
syncope of unknown etiology, possibly due to orthostatic
hypotension cause by use of diuretic medicines.” AR at
14 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).
The ALJ noted that Plaintiff has the following non-severe
impairments: recurrent arrhythmias and diverticulitis. AR at
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 14 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926). At Step Four, the ALJ found that while
Plaintiff's “medically determinable impairments
could reasonably be expected to produce the . . . alleged
symptoms[, ]” Plaintiff's “statements
concerning the intensity, persistence and limiting effects of
these symptoms [were] not entirely consistent with the
medical evidence and other evidence in the record . . .
.” AR at 17. The ALJ considered the evidence of record
and found that Plaintiff
has the [RFC] to occasionally climb ramps and stairs. She can
never climb ladders, ropes, or scaffolds. She can
occasionally stoop, kneel, crouch, and crawl. She should
never be exposed to unprotected heights; moving mechanical
parts; or operation of a motor vehicle. She can occasionally
be exposed to extreme cold and vibration. She can lift,
carry, push, or pull 10 pounds occasionally and less than 10
pounds frequently. She can sit for up to 6 hours, and stand
and/or walk for up to 2 hours, in an 8-hour workday. I find
that these limitations represent a limited range of work at
the sedentary exertional level as defined at 20 [C.F.R
§§] 404.1567, . . . 416.927, and SSR 83-10.
AR at 15. ALJ Ballengee found that Plaintiff “is
capable of performing past relevant work as a radio
dispatcher.” AR at 19 (citing 20 C.F.R. §§
404.1565, 416.965). The ALJ ultimately determined that
Plaintiff “has not been under a disability, as defined
in the Social Security Act, from October 1, 2014, through the
date of [the ALJ's] decision.” AR at 19 (citing 20
C.F.R. §§ 404.1520(f), 416.920(f)).
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 ...