United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on plaintiff Larry Holder's
Substitute Motion to Reverse and/or Remand (Doc. 25), which
was fully briefed on November 20, 2018. See Docs.
26, 27, 28. The parties consented to my entering final
judgment in this case. Docs. 9, 10, 11. Having meticulously
reviewed the entire record and being fully advised in the
premises, I find that the Appeals Council erred by failing to
consider the additional evidence submitted by Mr. Holder. I
therefore GRANT Mr. Holder's motion and remand this case
to the Commissioner for further proceedings consistent with
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. §§
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; 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), 416.920(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.
Background and Procedural History
Holder was born in 1964, completed the tenth grade, and
worked for approximately 14 years as a carpet installer, for
approximately seven months as a fiberglass finisher, and for
six months as a maintenance person. AR 54, 65, 82, 190,
Mr. Holder filed an application for Disability Insurance
Benefits (“DIB”) on September 10, 2015 and an
application for Supplemental Security Income
(“SSI”) on September 17, 2015,  alleging
disability since July 8, 2015 due to osteoarthritis and
“otheridis in wrists.” AR 190-98, 241. The Social
Security Administration (“SSA”) denied his claims
initially on October 21, 2015. AR 88-89,
113-120. Mr. Holder requested a hearing before an
ALJ. AR 121-22. On April 25, 2017, ALJ Kathryn Burgchardt
held a hearing. AR 49-87. ALJ Burgchardt issued her
unfavorable decision on June 27, 2017. AR 12-31.
found that Mr. Holder met the insured status requirements of
the Social Security Act through June 30, 2018. AR 17. At the
hearing, Mr. Holder amended his alleged onset date to
February 1, 2015. AR 15, 17, 52. At step one, the ALJ found
that Mr. Holder had not engaged in substantial, gainful
activity since his amended alleged onset date. AR 17. At step
two, the ALJ found that Mr. Holder's bilateral arthritis
of the wrists, degenerative disc disease of the cervical
spine, and left shoulder impairment were severe impairments.
AR 17-18. At step three, the ALJ found that none of Mr.
Holder's impairments, alone or in combination, met or
medically equaled a Listing. AR 18-19. Because the ALJ found
that none of the impairments met a Listing, the ALJ assessed
Mr. Holder's RFC. AR 19-24. The ALJ found Mr. Holder had
the RFC to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant can lift and carry 10 pounds
frequently and 20 pounds occasionally. He can stand or walk
with normal breaks for a total of six hours in an eight-hour
workday and sit with normal breaks for a total of six hours
in an eight-hour workday. He can perform pushing and pulling
motions with upper and lower extremities within the weight
restrictions given. He can perform activities requiring
bilateral manual dexterity for both gross and fine
manipulation with handling and reaching; however handling and
fingering bilaterally would be limited to only frequent. The
claimant should avoid unprotected heights and moving
machinery. He should not climb any ladders, ropes or
scaffolds, should avoid extreme cold, and should avoid
overhead reach bilaterally.
four, the ALJ concluded that Mr. Holder could not perform his
past relevant work as a carpet installer, but could return to
his past relevant work as a fiberglass finisher. AR 24. The
ALJ thus found Mr. Holder not disabled at step four.
Alternatively, the ALJ found Mr. Holder not disabled at step
five because he could perform jobs that exist in significant
numbers in the national economy-such as bench assembler,
photo copy machine operator, and small products assembler. AR
Holder requested that the Appeals Council review the
ALJ's unfavorable decision. AR 188-89, 310. Mr. Holder
submitted additional evidence to the Appeals Council.
See AR 11, 32-48. The Appeals Council did not
consider or “exhibit” most of the additional
evidence and found the rest “did not relate to the
period at issue.” AR 2. On October 24, 2017, the
Appeals Council denied the request for review. AR 1-5. Mr.
Holder timely filed his appeal to this Court on December 7,
2017. Doc. 1.
Mr. Holder's Claims
Holder raises three arguments for reversing and remanding
this case: (1) the Appeals Council erred in refusing to
consider his June 21, 2017 MRI; (2) the ALJ failed to explain
why key medical evidence was rejected or not considered; (3)
the ALJ's finding that he can perform his past relevant
work and three other jobs is inconsistent with the RFC that
states he must avoid overhead reaching. Doc. 25 at 16-21. I
find that the Appeals Council erred by failing to consider
additional evidence submitted by Mr. Holder. Because the
Appeals Council failed to consider the evidence Mr. Holder
submitted, the case will be remanded so that the Appeals
Council may reevaluate the ALJ's decision in light of the
The Appeals Council erred by failing to consider
additional evidence submitted by Mr. Holder.
issued her unfavorable decision on June 27, 2017.
See AR 12-31. Thereafter, Mr. Holder submitted
additional evidence and requested that the Appeals Council
consider the following:
1. Records from Gunnison-Griggs Orthopedics dated May 27,
2014 through June 2, 2017 (AR 32-46);
2. Records from Rocky Mountain Spine Clinic dated December
29, 2016 through March 29, ...