United States District Court, D. New Mexico
CARMEN D. CARINCI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Carmen D.
Carinci's Motion to Reverse and Remand for a Rehearing,
with Supporting Memorandum (Doc. 17), which was fully briefed
on May 2, 2018. See Docs. 21, 22, 23. The parties
consented to my entering final judgment in this case. Docs.
3, 7, 8. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) erred by failing
to incorporate all the limitations found by examining
psychologist Dr. Teresa Makowski in the RFC. I therefore
GRANT Ms. Carinci's motion and remand this case to the
Commissioner for further proceedings consistent with this
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands, and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
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. While the Court
may not reweigh the evidence or try the issues de novo, its
examination of the record as a whole must include
“anything that may undercut or detract from the
ALJ'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] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) the claimant is not
engaged in “substantial gainful activity”; (2)
the claimant 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) the impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
Background and Procedural History
Carinci was born in 1969, completed one year of college, and
worked for approximately 15 years as a dental assistant, and
for much shorter periods as a pharmacy technician and a
counter assistant in a donut shop. AR 182, 237. Ms. Carinci filed
an application for disability insurance benefits
(“DIB”) on October 18, 2013, alleging disability
since May 8, 2012 due to bipolar disorder, depression,
anxiety, hand tremors caused by the use of lithium, and
myofascial pain throughout her body. AR 182-85, 236. The
Social Security Administration (“SSA”) denied her
DIB claim initially on January 21, 2014. AR 114-17. The SSA
denied her DIB claim on reconsideration on July 8, 2014. AR
121-25. Ms. Carinci requested a hearing before an ALJ. AR
127-28. On February 10, 2016, ALJ Kim Fields held a hearing.
AR 29-53. ALJ Fields issued his unfavorable decision on March
25, 2016. AR 12-28.
found that Ms. Carinci met the insured status requirements of
the Social Security Act through December 31, 2017. AR 17. At
step one, the ALJ found that Ms. Carinci had not engaged in
substantial, gainful activity since May 8, 2012, her alleged
onset date. Id. At step two, the ALJ found that Ms.
Carinci's bipolar disorder, depression, and fibromyalgia
were severe impairments. Id. At step three, the ALJ
found that none of Ms. Carinci's impairments, alone or in
combination, met or medically equaled a Listing. AR 17-19.
Because the ALJ found that none of the impairments met a
Listing, the ALJ assessed Ms. Carinci's RFC. AR 19-21.
found Ms. Carinci had the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a)
except can sit for thirty minutes at a time; stand for
fifteen minutes at a time; can perform unlimited walking; can
perform low end complex tasks; cannot perform ...