United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and/or Remand (Doc. 18) filed on March 10, 2019.
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.
October 10, 2014, Mr. Giovanni Tedesco (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 244, 249. Plaintiff alleged a
disability onset date of October 25, 2013. AR at 13, 244,
Disability Determination Services (DDS) determined that
Plaintiff was not disabled both initially (AR at 73-74) and
on reconsideration (AR at 127-128). Plaintiff requested a
hearing with an Administrative Law Judge (ALJ) on the merits
of his applications. AR at 148-49.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 36-72. ALJ Cole
Gertner issued an unfavorable decision on November 1, 2017.
AR at 10-35. Plaintiff submitted a Request for Review of
Hearing Decision/Order to the Appeals Council (AR at 227-28),
which the Council denied on September 12, 2018 (AR at 1-6).
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 he
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) he is not engaged in “substantial
gainful activity”; (2) he 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) his 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), he is unable to perform
his 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 [his] 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 his 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)); see also 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
One of the process,  ALJ Gerstner found that Plaintiff
“has not engaged in substantial gainful activity since
October 25, 2013, the alleged onset date.” AR at 16
(citing 20 C.F.R. §§ 404.1571-1576, 416.971-976).
At Step Two, the ALJ concluded that Plaintiff “has the
following severe impairments: seizure disorder, degenerative
disc disease, and degenerative joint disease of the wrists
and knees.” AR at 16 (citing 20 C.F.R. §§
404.1520(c), 416.920(c)). The ALJ noted that Plaintiff has
the following non-severe impairments: anxiety and depression.
AR at 16.
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 17 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926). At Step Four, the ALJ considered the evidence of
record and found that Plaintiff
has the [RFC] to perform light work as defined in 20 [C.F.R.
§§] 404.1567(b) and 416.967(b) except for
occasionally lifting and carrying twenty pounds, frequently
lifting and carrying ten pounds, pushing and pulling within
those exertional limitations, standing and walking six hours
in an eight hour workday, sitting for six hours in an eight
hour workday, occasionally climbing ramps and stairs, never
climbing ladders, ropes or scaffolds, never working around
unprotected heights or moving mechanical parts, and never
operating a motor vehicle.
AR at 24. ALJ Gerstner found that Plaintiff “is unable
to perform any past relevant work.” AR at 28 (citing 20
C.F.R. §§ 404.1565, 416.965). The ALJ found that
Plaintiff can perform the jobs of cashier II, ticket seller,
and sales attendant. ALJ at 29. The ALJ ultimately determined
that Plaintiff “has not been under a disability, as
defined in the Social Security Act, from October 25, 2013,
through the date of [the ALJ's] decision.” AR at 30
(citing 20 C.F.R. §§ 404.1520(g), 416.920(g)).
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)). 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). “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)). 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
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).
The Court “may not ‘displace the agenc[y's]
choice between two fairly conflicting views, even though the
court would justifiably have made a ...