United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiff Russell
Bunker's Motion to Reverse and/or Remand (Doc. 22), which
was fully briefed on December 23, 2018. See Docs.
24, 25, 26. The parties consented to my entering final
judgment in this case. Docs. 10, 13, 14. 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 discuss Mr.
Bunker's mental impairments when formulating his residual
functional capacity (“RFC”). I therefore GRANT
Mr. Bunker'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. § 416.905(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 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. §
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 RFC, age,
education, and work experience. Id.
Background and Procedural History
Bunker was born in 1954, graduated from high school, and
worked “hit and miss” for 15 years, making
between $300 and $600 per month delivering small loads of
lumber for a friend who owned a lumber yard. AR 40-41, 170,
Mr. Bunker filed an application for Supplemental Security
Income (“SSI”) on September 8, 2014, alleging
disability since January 1, 1998 due to an incisional hernia,
lower back problems, and a bad left knee. AR 170-76, 190. The
Social Security Administration (“SSA”) denied his
claim initially on January 8, 2015. AR 101-03; Doc. 17-1 at
2. The SSA denied his claims on reconsideration on May 22,
2015. AR 107-11. Mr. Bunker requested a hearing before an
ALJ. AR 112-14. On October 19, 2016, ALJ Doug Gabbard II held
a hearing. AR 33-64. ALJ Gabbard issued his unfavorable
decision on December 22, 2016. AR 15-32.
one, the ALJ found that Mr. Bunker had not engaged in
substantial, gainful activity since his application date of
August 15, 2014. AR 20. At step two, the ALJ found that Mr.
Bunker had the following severe impairments: bilateral
shoulder degenerative joint disease and osteoarthritis of the
left knee. Id. The ALJ also found that Mr. Bunker
had the following nonsevere impairments: mild back
degenerative disc disease, abdominal hernia, insomnia,
anxiety disorder, affective disorder, and substance
addiction. AR 20-21. At step three, the ALJ found that none
of Mr. Bunker's impairments, alone or in combination, met
or medically equaled a Listing. AR 22. Because the ALJ found
that none of the impairments met a Listing, the ALJ assessed
Mr. Bunker's RFC. AR 23-25. The ALJ found Mr. Bunker had
the RFC to “perform medium work as defined in 20 CFR
416.967(c) except the claimant can occasionally stoop and
occasionally reach overhead bilaterally.” AR 22.
four, the ALJ concluded that Mr. Bunker did not have any past
relevant work. AR 25. The ALJ found Mr. Bunker not disabled
at step five because he could perform jobs that exist in
significant numbers in the national economy-such as laundry
worker and dining room attendant. AR 26. Mr. Bunker requested
review by the Appeals Council. AR 168-69. On December 3,
2017, the Appeals Council denied review. AR 1-6. Mr. Bunker
timely filed his appeal to this Court on January 29, 2018.
Mr. Bunker's Claims
Bunker raises five arguments on appeal: (1) the ALJ erred by
failing to discuss his mental limitations when formulating
his RFC; (2) the ALJ's RFC finding that he can perform
“medium work” is not supported by substantial
evidence; (3) the ALJ erred in giving treating orthopedic
surgeon Dr. Grace's opinion “little weight”;
(4) the ALJ erred in giving consultative examiner Dr.
McCarthy's opinion “little weight”; (5) the
ALJ erred at step five in finding he could do jobs which
require frequent or constant reaching. Doc. 22 at 16-21. I
find that the ALJ erred by failing to consider Mr.
Bunker's mental impairments in formulating his RFC.
Because I remand based on this error, ...