United States District Court, D. New Mexico
OPINION AND ORDER GRANTING IN PART PLAINTIFF’S
MOTION TO REVERSE AND REMAND
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
seeks reversal of the Commissioner’s determination that
she is not entitled to Social Security disability benefits.
With the consent of the parties to conduct dispositive
proceedings in this matter, see 28 U.S.C. §
636(c); Fed.R.Civ.P. 73(b), the Court reverses and remands
for further proceedings.
February 2014, Plaintiff filed applications for disability
insurance benefits and supplemental security income, alleging
that she had been disabled since November 20, 2012, due to
diabetes; chronic back pain; bipolar depression; anxiety;
migraines; and TMJ. (AR 211, 214). During a hearing held on
April 5, 2017, before Administrative Law Judge
(“ALJ”) Doug Gabbard, Plaintiff testified that
she was unable to work due, in large part, to back pain and
depression. (AR 50). To support her claims, Plaintiff offered
medical records, self-reports of alleged functional
limitations, and corroborating opinion evidence submitted by
her healthcare providers-Dr. Richard Moore, licensed
independent social worker Kurt Johnson (“LISW
Johnson”), and licensed professional clinical counselor
Robert Becher (“LPCC Becher”)-and friend,
relevant, Plaintiff’s medical records document two
failed back surgeries and continued attempts to alleviate her
back and associated leg pain via prescription narcotics,
muscle relaxants, nerve medication, and lumber epidural
steroid injections (“LESIs”). Plaintiff has been
using a prescribed cane to ambulate since 2012, and she
reported that her pain causes functional limitations
including, inter alia, the ability to lift only five pounds,
stand for only ten minutes before needing to sit, walk for
only thirty minutes, and sit for no more than forty-five
minutes. (AR 19, 228). She further reported “that
squatting and bending caused too much pain and kneeling was
hard to get back up.” (Id.).
and 2017, Plaintiff’s treating physician, Dr. Moore,
completed assessments of Plaintiff’s ability to do work
related activities. In his most recent assessment, Dr. Moore
opined that Plaintiff can never climb stairs or ramps, stoop,
kneel, or crouch, and she can only balance occasionally. (AR
874). Dr. Moore further stated that Plaintiff can
occasionally lift up to ten pounds and that she can only
stand and walk for thirty minutes at a time. (AR 873).
Similarly, Ms. George noted that Plaintiff is unable to bend,
lift, squat, reach, or kneel, and that stairs cause her
“tremendous amounts of pain.” (AR 236).
medical records also document a history of depression. In
2014, upon referral from Dr. Moore, Plaintiff began
counseling sessions with LISW Johnson. (AR 545). LPCC Becher
replaced LISW Johnson in 2017. (AR 53, 964). At the hearing,
Plaintiff offered little testimony in regard to her
depression. She did, however, state that her counseling with
LPCC Becher has “been going well” but that it is
difficult to “reopen old wounds and talk about
things.” (AR 53).
Becher and LISW Johnson completed assessments of
Plaintiff’s ability to do work-related, mental
activities, with both finding that Plaintiff had marked
limitations in her abilities to understand, remember, and
carry out detailed instructions. (AR 598, 929). In terms of
maintaining concentration, performing activities within a
schedule, and completing a normal workday/workweek, LISW
Johnson opined that Plaintiff was moderately limited in these
areas, whereas LPCC Becher identified marked limitations.
this evidence in hand, ALJ Gabbard employed the required
five-step disability analysis,  first finding that Plaintiff had
not engaged in substantial gainful activity since her alleged
onset date of November 20, 2012. (AR 15). At step two, he
found that Plaintiff had the severe impairments of diabetes,
back degenerative disc disease status post L4-5
laminectomy/discectomy, and affective disorder.
(Id.). He also identified several non-severe
impairments including migraines, GERD, hyperlipidemia,
hypertension, allergic rhinitis, hypothyroidism, insomnia,
fatigue, sleep apnea, and obesity. (AR 16). At step three,
the ALJ determined that none of Plaintiff’s
impairments, whether alone or in combination, met or
medically equaled the severity of a listed impairment. (AR
Gabbard next assessed Plaintiff’s Residual Functional
Capacity (“RFC”),  finding that Plaintiff had the
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) with frequent climbing of ramps/stairs; occasional
climbing of ladders/ropes/scaffolds; occasional balancing and
stooping; frequent crawling but no kneeling and crouching;
and she must be allowed to alternately sit/stand every 15-20
minutes throughout the workday for the purpose of changing
positions but without leaving the workstation. In addition,
she [is] limited to semi-skilled work (work which requires
understanding, remembering and carrying out some detailed
skills but does not require doing more complex work duties)
interpersonal contact with supervisors and coworkers must be
on a superficial work basis and she can attend and
concentrate for extended periods but should have normal,
regular work breaks.
ALJ Gabbard discussed Plaintiff’s symptoms and
concluded that although Plaintiff’s impairments
“could be expected to produce the above alleged
symptoms…[her] statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record.” (AR 20). He also rejected the
opinion evidence provided by Dr. Moore, LISW Johnson, and
LPCC Becher, and the evidence provided by Ms. George.
Gabbard then proceeded to steps four and five where, with the
help of a vocational expert (“VE”), he determined
that Plaintiff was able to perform both her past relevant
work as a cashier II, and representative occupations such as
inspector packer and small product assembler. (AR 25-26).
Accordingly, ALJ Gabbard concluded that Plaintiff was not
disabled. (AR 26). The ALJ’s decision became final
when, on May 2, 2018, the Appeals Council denied
Plaintiff’s request for review. (AR 1). See Sims v.
Apfel, 530 U.S. 103, 106–07 (2000) (explaining
that if the Council denies a request for a review, the
ALJ’s opinion becomes the final decision).
review of the Commissioner’s decision is limited to
determining “whether substantial evidence supports the
factual findings and whether the ALJ applied the correct
legal standards.” Allman v. Colvin, 813 F.3d
1326, 1330 (10th Cir. 2016). See also 42 U.S.C.
§ 405(g). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted).
“Evidence is not substantial if it is overwhelmed by
other evidence in the record or constitutes mere
conclusion.” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005) (quotation omitted). The Court
must examine the record as a whole, “including anything
that may undercut or detract from the ALJ's findings in
order to determine if the substantiality test has been
met.” Id. at 1262. “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.”
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