United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA, United States Magistrate Judge
MATTER is before the Court on the Social Security
Administrative Record (Doc. 19), filed June 21, 2018, in
support of Plaintiff Lorraine Chavez Davis' Complaint
(Doc. 1) seeking review of the decision of Defendant Nancy A.
Berryhill, Acting Commissioner of the Social Security
Administration (“Defendant” or
“Commissioner”) denying Ms. Davis' claim for
Title II disability insurance benefits. On September 28,
2018, Ms. Davis filed her Motion to Reverse and Remand for
Payment of Benefits, or in the Alternative, for Rehearing,
with Supporting Memorandum. (Doc. 26.) The Commissioner filed
a Response in opposition on November 8, 2018 (Doc. 27), and
Ms. Davis filed a Reply on November 23, 2018 (Doc. 28).
Having meticulously reviewed the entire record and the
applicable law and being fully advised in the premises, the
Court finds that the Motion is well taken and shall be
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);
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
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] 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's] reasons for finding a claimant not
disabled” must be “articulated with sufficient
particularity.” Clifton v. Chater, 79 F.3d
1007, 1009-10 (10th Cir. 1996).
Disability Determination Process
person must, inter alia, be “under a
disability” to qualify for disability insurance
benefits under Title II. 42 U.S.C. §§ 423(a)(1)(E),
423(d)(1)(A). An individual is considered to be “under
a disability” if 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).
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, he is not disabled regardless of his
(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, he 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 his “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 [his
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. §§
404.1545(a)(3), 416.945(a)(3). Second, the ALJ must determine
the physical and mental demands of the claimant's past
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 his past relevant
work is not disabled.
(5) If the claimant is unable to perform his 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);
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 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).
Background and Procedural History
Davis alleges that she became disabled at age
forty-nine because of psoriatic arthritis, bipolar
disorder, anxiety disorder, hypothyroidism, and high blood
pressure. (AR. 39, 108, 196, 239.) Ms. Davis earned a
bachelor's degree in English, and, in 2001, she entered a
master's program in secondary education, which she did
not complete because of her psoriasis and psoriatic
arthritis. (AR. 24.) She worked as a teacher, as a scorer and
reader of standardized exams, as a group facilitator, as a
case manager, and as an exam proctor. (AR. 24-32.) Ms. Davis
reported that she stopped working on October 24, 2013,
because of her conditions. (AR. 239.)
Medical History and Relevant Medical
Medicine Downtown Dr. Unverzagt 2008-2015
record reflects that Ms. Davis received primary care
treatment with physician Dr. Mark Unverzagt at Medicine
Downtown from January 2008 through August of 2014. (AR. 349,
1344.) Treatment notes from 2008 reflect that Dr. Unverzagt
saw Ms. Davis at least eight times for her bipolar disorder
with depression and for arthritis. (AR. 349-63.) Dr.
Unverzagt's notes reflect that in 2008 Ms. Davis was at
times depressed and angry, experienced suicidal ideation but
without an active suicide plan, had loss of motivation,
feelings of agoraphobia and obsessive compulsive behaviors,
and experienced adverse side effects of lithium. (AR 356-61.)
Dr. Unverzagt saw Ms. Davis at least three times in 2009 and
she was reportedly stable and doing well on lithium without
side effects. (AR. 366-370.)
January 2010, however, Ms. Davis reported that she had been
depressed for a month, and had symptoms of sadness,
anhedonia, disturbed sleep, extreme nervousness and/or worry,
was quick to express or feel anger, and was socially
isolating; Dr. Unverzagt referred her to counseling. (AR.
371.) She was feeling “the same” in February
2010, and she had disturbed sleep, and difficulty
concentrating and/or completing tasks though she was taking
medication as prescribed. (AR. 372.) Ms. Davis treated with
Dr. Unverzagt three additional times in 2010 and three times
in 2011 and she was by and large compliant with her lithium
and doing well overall. (AR. 374-79, 381, 389, 444.) After
reportedly being stable on lithium in January and June 2012
(AR 390, 392), by September 2012, Ms. Davis was lacking in
motivation and Dr. Unverzagt noted that she was positive for
depression and mania. (AR. 394.) And in ...