United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Social Security
Administrative Record filed July 31, 2018, Doc. 12, in
support of Plaintiff Renee Pamela Rush's Complaint, Doc.
1, seeking review of the decision of Defendant Andrew Saul,
Commissioner of the Social Security Administration, denying
Plaintiff's claim for disability insurance benefits under
Title II and Title XVI of the Social Security Act, 42 U.S.C.
§ 401 et seq. On November 5, 2018, Plaintiff
filed her Motion to Reverse and Remand for a Rehearing With
Supporting Memorandum. Doc. 18. The Commissioner filed a
Brief in Response on February 1, 2019, Doc. 26, and Plaintiff
filed a Reply on February 19, 2019, Doc. 27. The Court has
jurisdiction to review the Commissioner's final decision
under 42 U.S.C. §§ 405(g) and 1383(c). Having
meticulously reviewed the entire record and the applicable
law and being fully advised in the premises, the Court finds
the Motion is not well taken and is DENIED.
Background and Procedural Record
Renee Pamela Rush suffers from the following severe
impairments: Obstructive sleep apnea; Cavernous angioma with
associated headaches; Attention deficit disorder; Major
depressive disorder; and Cognitive disorder, not otherwise
specified. Administrative Record (“AR”) at 14.
She alleges that she became disabled as of January 5, 2008.
Id. She completed one year of college and worked in
the past as a sales associate and childcare provider. AR 154,
1, 2009, Ms. Rush filed concurrent claims of disability under
Title II and Title XVI. AR 12. Her applications were
initially denied on November 3, 2009 (AR 52), and upon
reconsideration on April 23, 2011 (AR 53-54). Administrative
Law Judge (“ALJ”) Ann Farris conducted a hearing
on October 4, 2012. AR 27-50. Ms. Rush appeared in person at
the hearing with attorney representative Michael Armstrong.
AR 27. The ALJ took testimony from Ms. Rush and an impartial
vocational expert (“VE”), Cornelius J. Ford. AR
October 31, 2012, ALJ Farris issued an unfavorable decision.
AR 9-22. After the Appeals Council denied review, AR 1, Ms.
Rush appealed to federal court. On March 10, 2015, Magistrate
Judge Stephan M. Vidmar issued a Memorandum Opinion and Order
granting Ms. Rush's Motion and remanding the case for
further proceedings. AR 612-20. Judge Vidmar held that ALJ
Farris' evaluation of the opinion of Ms. Rush's
psychiatrist, Dr. Hall, violated the treating physician rule.
AR 619. “The question [for the ALJ] is not whether
Dr. Hall showed that his opinion was well supported.
The question is whether it actually was
well-supported. The ALJ in this case made no findings
suggesting that Dr. Hall's opinion was not
supported.” Id. (citations omitted). Judge
Vidmar remanded for further proceedings. AR 620.
January 20, 2016, Ms. Rush appeared and testified at a second
hearing before ALJ D'Lisa Simmons. AR 716-65. She
appeared with her attorney, Mr. Armstrong. AR 716. The ALJ
took testimony from Ms. Rush and an impartial vocational
expert (“VE”), Mary Diane Weber. Id. ALJ
Simmons issued an unfavorable decision on March 10, 2016 (AR
627-49). In subsequent proceedings in federal court, the
Commissioner stipulated to a remand. AR 657-58. On March 6,
2017, the Appeals Council remanded to an ALJ to discuss
“additional evidence submitted to the hearing office[r]
prior to the issuance of the decision, ” including
“opinions from treating sources and third party
statements from friends and family.” AR 661.
Rush then appeared and testified at a hearing before ALJ
Stephen Gontis on November 15, 2017. AR 522-93. She was
represented by William S. Rode of Michael D. Armstrong &
Associates. AR 492, 522, 816. Also appearing and testifying
were Medical Experts (“MEs”) Stephen Goldstein
M.D. and Alfred Jonas M.D., who both opined that no listing
is met or equaled. AR 527-67. VE Weber testified as to the
work in the national economy that a hypothetical individual
could perform with Ms. Rush's limitations. AR 584-91. ALJ
Gontis determined that Ms. Rush's date last insured is
March 31, 2012. AR 495. He found that she was not disabled
between January 5, 2008 and the date of his decision (January
16, 2018). AR 493, 512-13. The ALJ's decision is the
Commissioner's final decision for purposes of judicial
review pursuant to 20 C.F.R. § 404.984(a). The Court
reserves discussion of the medical records relevant to this
appeal for its analysis.
Disability Determination Process
individual is considered disabled 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) (pertaining
to disability insurance benefits); see also Id.
§ 1382(a)(3)(A) (pertaining to supplemental security
income disability benefits for adult individuals). The Social
Security Commissioner has adopted the familiar five-step
sequential evaluation process (“SEP”) to
determine whether a person satisfies the statutory criteria
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful
activity.” If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her
(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(s) or combination of impairments
that is severe and meets the duration requirement, she is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listings described in
Appendix 1 of the regulations, the ALJ must determine at step
four whether the claimant can perform her “past
relevant work.” Answering this question involves three
phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th
Cir. 1996). First, the ALJ considers all of the relevant
medical and other evidence and determines what is “the
most [claimant] can still do despite [her 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 determines the
physical and mental demands of claimant's past work.
Third, the ALJ determines whether, given claimant's RFC,
the claimant is capable of meeting those demands. A claimant
who is capable of returning to past relevant work is not
(5) If the claimant does not have the RFC to perform her 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) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th
Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005).
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 review is conclusive
and terminates the analysis. Casias v. Sec'y of
Health & Human Serv., 933 F.2d 799, 801 (10th Cir.
Standard of Review
Court must affirm the Commissioner's denial of social
security benefits unless (1) the decision is not supported by
“substantial evidence” or (2) the ALJ did not
apply the proper legal standards in reaching the decision. 42
U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004); Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933
F.2d at 800-01. In making these determinations, the Court
“neither reweigh[s] the evidence nor substitute[s]
[its] judgment for that of the agency.'” Bowman
v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
“[W]hatever the meaning of ‘substantial' in
other contexts, the threshold for such evidentiary
sufficiency is not high.” Biestek v.
Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial
evidence “is ‘more than a mere
scintilla.'” Id. (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It
means-and means only-such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Id. (internal quotation marks omitted).
decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record, ”
Langley, 373 F.3d at 1118, or “constitutes
mere conclusion, ” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). The 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). Therefore, 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). But where the reviewing court “can follow the
adjudicator's reasoning” in conducting its review,
“and can determine that correct legal standards have
been applied, merely technical omissions in the ALJ's
reasoning do not dictate reversal.” Keyes-Zachary
v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The
court “should, indeed must, exercise common
sense.” Id. “The more comprehensive the
ALJ's explanation, the easier [the] task; but [the court]
cannot insist on technical perfection.” Id.
support of her Motion to Remand, Ms. Rush argues that the ALJ
impermissibly disregarded moderate limitations assigned by a
state agency non-examining consultant, Dr.
improperly weighed the opinion of Dr. Hall, Ms. Rush's
treating physician; and improperly weighed opinion evidence
from a licensed clinical social worker. Doc. 19 at 2.
The ALJ Did Not Improperly Pick and Choose from a
Consulting Doctor's Opinion.
Rush argues that the ALJ's RFC determination in this case
is an improper attempt to “pick and choose”
portions of a consulting doctor's opinion favorable to a
non-disability finding while disregarding other portions
without explaining why. Because the ALJ arrived at
essentially the same RFC as the consulting doctor, the Court
rejects Ms. Rush's argument that the ALJ improperly
disregarded some of his opinions.
agency non-examining consultant Scott Walker, M.D, evaluated
Ms. Rush's medical records on October 29, 2009. AR
284-88. Dr. Walker reviewed and discussed the medical
evidence and, in answering questions relating to Ms.
Rush's mental residual functional capacity assessment
(“MRFCA”), assessed in Section I the following
. Understanding, remembering, and carrying
out detailed instructions;
. Maintaining attention and concentration
for extended periods of time;
. Performing activities within a schedule,
maintaining regular attendance, and being punctual within
. Sustaining an ordinary routine without
. Completing a normal workday and workweek
without interruptions from psychologically based symptoms and
performing at a consistent pace without an unreasonable
number and length of rest periods;
. Interacting appropriately with the general
. Accepting instructions and responding
appropriately to criticism from supervisors;
. Getting along with coworkers or peers
without distracting them or exhibiting behavioral ...