United States District Court, D. New Mexico
PAULA A. FERGUSON, Plaintiff,
ANDREW M. SAUL,  Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
(Doc. 17), filed on March 28, 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. 4, 7, 8. Having considered
the record, submissions of counsel, and relevant law, the
Court finds Plaintiff's motion is not well-taken and will
February 3, 2015, Ms. Paula A. Ferguson
(“Plaintiff”) filed applications with the Social
Security Administration for a period of disability and
disability insurance benefits (“DIB”) under Title
II of the Social Security Act (“SSA”) and for
Supplemental Security Income under Title XVI of the SSA.
Administrative Record (AR) at 182. Plaintiff alleged a
disability onset date of August 23, 2012. AR at 182. Her DIB
claim was denied because she had not worked long enough to be
eligible for DIB, and Plaintiff did not seek reconsideration
of that denial. AR at 105-07. As for her SSI application,
Disability Determination Services determined that she was not
disabled both initially (AR at 109) and on reconsideration
(AR at 116). She then requested a hearing with an
Administrative Law Judge (“ALJ”) on the merits of
her application. AR at 122-23.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 31-79. ALJ Cole
Gerstner issued an unfavorable decision on October 27, 2017.
AR at 12-23. Plaintiff submitted a Request for Review of
Hearing Decision/Order to the Appeals Council (AR at 179),
which the Council denied on September 11, 2018 (AR at 1).
Consequently, the ALJ's decision became the final
decision of the Commissioner. 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 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); see also 20 C.F.R. § 416.905(a).
The Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R.
§ 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) she is not engaged in “substantial
gainful activity”; (2) she 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) her
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), she is unable to perform her past relevant work. 20
C.F.R § 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 her 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” the claimant retains sufficient RFC
“to perform work in the national economy, given [her]
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. § 416.920(a)(4)(v).
One of the process here, ALJ Gerstner found that Plaintiff
“has not engaged in substantial gainful activity since
February 3, 2015, the application date.” AR at 14
(citing 20 C.F.R. § 416.971). At Step Two, he concluded
that Plaintiff had the following severe impairments:
depression, anxiety, and degenerative disc disease. AR at 14
(citing 20 C.F.R. § 416.920). The ALJ also noted that
there were “references to other isolated conditions,
” but he found that they did not impose more than a
minimal restriction on Plaintiff's ability to perform
basic work activities. AR at 14-15.
Three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR
at 15 (citing 20 C.F.R. §§ 416.920(d), 416.925,
416.926). At Step Four, he found that while Plaintiff's
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms[, ] . . . [her]
statements concerning the intensity, persistence and limiting
effects of these symptoms [were] not entirely consistent with
the medical evidence and other evidence in the record.”
AR at 17. After considering the evidence of record, the ALJ
determined that Plaintiff:
ha[d] the residual functional capacity to perform light work
as defined in 20 [C.F.R. §] 416.967(b) with further
limitations as follows. The claimant is able to lift and/or
carry twenty pounds occasionally and ten pounds frequently;
stand and/or walk for a total of about six hours in an
eight-hour workday; sit for a total of about six hours in an
eight-hour workday; has unlimited pushing and/or pulling. She
is limited to occasionally climbing ramps and stairs;
occasionally climbing ladders, ropes and scaffolds; and
occasional balancing, stooping, kneeling, crouching and
crawling. She can occasionally work at unprotected heights
and around moving mechanical parts. Mentally, she is limited
to performing simple, routine and repetitive tasks. In
addition to normal breaks, time off task includes ten percent
of time in an eight-hour workday.
AR at 16. The ALJ determined that Plaintiff had “no
past relevant work.” AR at 21. But, at Step Five, he
concluded that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform.
AR at 22 (citing 20 C.F.R. §§ 416.969, 416.969(a)).
Ultimately, the ALJ found that Plaintiff was not under a
disability, as defined in the Social Security Act, from
February 3, 2015, through the date of his decision. AR at 22
(citing 20 C.F.R. § 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) (alteration
in original)). 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 omitted)).
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
[C]ourt would justifiably have made a different choice had
the matter been before it de novo.'” Id.
(quoting Zoltanski, 372 F.3d at 1200).
contends that the following issues require reversal: (1) the
ALJ improperly weighed the opinion of evaluating
neuropsychologist Dr. Koltuska-Haskin; (2) the ALJ's RFC
is not supported by substantial evidence because
Plaintiff's statements of pain were not considered in
accordance with the dictates of Luna v. Bowen, 834
F.3d 161 (10th Cir. 1987), SSR 16-3p, 2017 WL 5180304, at *2
(Oct. 25, 2017), or SSR 96-8p, 1996 WL 374184 (July 2, 1996);
and (3) the ALJ's Step-Five finding was not based on
substantial evidence. Doc. 17 at 1.
The ALJ properly weighed the opinion of evaluating
neuropsychologist Dr. Barbara Koltuska-Haskin.
Plaintiff maintains that ALJ Gerstner included only “a
cursory discussion of the findings of Dr. Koltuska-Haskin,
” a consultative examining neuropsychologist. Doc. 17
at 12 (citing AR at 20). She characterizes the ALJ's
discussion of Dr. Koltuska-Haskin's opinion as “a
fragment of an in-depth opinion based on an extensive
evaluation including multiple tests.” Id.
(citing AR at 20, 724-31). Acknowledging that the ALJ gave
Dr. Koltuska-Haskin's opinion only “partial weight,
” Plaintiff submits that it is “unclear to what,
exactly, he was assigning the weight.” Id. at
13 n.8, 15 (citing AR at 20). Specifically, Plaintiff
identifies certain opinions of Dr. Koltuska-Haskin, which she
insists the ALJ omitted: her opinion that Plaintiff's
“overall clinical presentation indicates some cognitive
problems primarily in the areas of executive functioning,
attention/ concentration and nonverbal processing
speed” and her opinion that “there is Chronic and