United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 18), filed October 9, 2018, in
support of Plaintiff Kenneth Copelin’s Complaint (Doc.
1) seeking review of Defendant the Commissioner of Social
Security’s decision denying Mr. Copelin’s claim
for supplemental security income. On December 7, 2018, Mr.
Copelin filed a Motion to Reverse the Administrative Law
Judge (ALJ) Unfavorable Decision Dated June 23, 2017 As Well
As the Appeals Council Ruling Dated June 19, 2018:
Alternatively Motion to Remand Case Back to the
Administrative Law Judge. (Doc. 21.) Mr. Copelin filed a
memorandum in support of his motion on the same date. (Doc.
22.) The Commissioner filed a response in opposition to the
motion on February 13, 2019, and Mr. Copelin filed a reply in
support of it on February 27, 2019. (Docs. 24, 25.)
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 relevant law and being otherwise fully advised, the Court
finds that Mr. Copelin’s motion is well taken and
should be GRANTED.
Background and Procedural History
Copelin alleges that he became disabled on May 9, 2011, at
thirty-seven years of age, due to hypertensive urgency,
chronic headaches, shoulder, knee, and elbow joint pain,
upper and lower back pain, stars/lightning in visual range,
inability to handle heat, numbness of legs and feet, chest
pain, depression, and lack of concentration and memory. (AR
240-41.) Mr. Copelin completed four or more years of college
in 2005 and earned a bachelor’s degree in psychology.
(AR 44-45, 241, 359.) In the relevant past, he worked as a
warehouse worker and a stock clerk. (AR 47-48, 140.)
8, 2014, Mr. Copelin applied for supplemental security income
(“SSI”) benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et
(AR 219.) Mr. Copelin’s application was denied
initially on January 23, 2015, and on reconsideration on July
13, 2015. (AR 113, 127-28.) On September 7, 2015, Mr. Copelin
requested a hearing before an Administrative Law Judge
(“ALJ”). (AR 162-64.) ALJ Michael Leppala
conducted a hearing in Albuquerque on March 16, 2017. (AR
40-96.) Mr. Copelin appeared from Las Cruces by
videoconference with his attorney, Jaime Rubin. (AR 40-41.)
The ALJ took testimony from Mr. Copelin and from an impartial
vocational expert (“VE”), Phunda Yarbrough. (AR
40, 44-96, 301.) On June 23, 2017, the ALJ issued an
unfavorable decision. (AR 133-42.) On June 19, 2018, the
Appeals Council denied Mr. Copelin’s request for
review, rendering the ALJ’s decision the
Commissioner’s final decision from which Mr. Copelin
now appeals. (AR 1-4.)
Disability Determination Process
person is “disabled, ” he may qualify for SSI
benefits under Title XVI. 42 U.S.C. § 1382(a)(1). An
individual is considered to be “disabled” if he
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).
Commissioner has adopted a five-step sequential analysis to
determine whether a person satisfies the statutory criteria:
(1) At step one, the ALJ must determine whether the claimant
is engaging in “substantial gainful
activity.” If the claimant is engaging in substantial
gainful activity, he is not disabled regardless of his
(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 (or combination of impairments)
that is severe and meets the duration requirement, he is not
(3) At step three, the ALJ must determine whether a
claimant’s impairment meets or equals in severity one
of the listings described in Appendix 1 of 20 C.F.R. Part
404, Subpart P, and meets the duration requirement. If so, a
claimant is presumed disabled.
(4) If none of the claimant’s impairments meet or equal
one of the listings, the ALJ must determine at step four
whether the claimant can perform his “past relevant
work.” This step involves three phases. Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the
ALJ must consider all of the relevant evidence and determine
what is “the most [the claimant] can still do despite
[his physical and mental] limitations.” 20 C.F.R.
§ 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”).
Id. Second, the ALJ must determine the physical and
mental demands of the claimant’s past relevant work.
Third, the ALJ must determine whether, given the
claimant’s RFC, the claimant is capable of meeting
those demands. A claimant who is able to perform his past
relevant work is not disabled.
(5) If the claimant is unable to perform his 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.
C.F.R. § 416.920(a)(4); Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant
bears the 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 other
work in the national economy. Id. A finding that the
claimant is disabled or not disabled at any point in the
five-step evaluation process is conclusive and terminates the
analysis. Casias v. Sec’y of Health & Human
Servs., 933 F.2d 799, 801 (10th Cir. 1991); 20 C.F.R.
Standard of Review
Court will affirm the Commissioner’s final decision
denying social security benefits unless: (1)
“substantial evidence” does not support the
decision; or, (2) the Commissioner did not apply the correct
legal standards in reaching the decision. 42 U.S.C.
§§ 405(g), 1383(c)(3); Maes v. Astrue, 522
F.3d 1093, 1096 (10th Cir. 2008); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004);
Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004). The Court must meticulously review the entire record
but may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008);
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. Although the Court may not
re-weigh the evidence or try the issues de novo, its
consideration of the record must include “anything that
may undercut or detract from the [agency]’s findings in
order to determine if the substantiality test has been
met.” Grogan, 399 F.3d at 1262. “The possibility
of drawing two inconsistent conclusions from the evidence
does not prevent [the agency’s] findings from being
supported by substantial evidence.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
agency decision must provide the 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). Thus, 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 . . . must discuss the
uncontroverted evidence he chooses not to rely upon, as well
as significantly probative evidence he rejects.”
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.
found Mr. Copelin not disabled at step four of the sequential
evaluation process. (AR 140.) At step one, the ALJ found that
Mr. Copelin has not engaged in substantial gainful activity
since his application date. (AR 135.) At step two, he found
that Mr. Copelin has the severe mental impairments of
affective disorder and borderline personality disorder.
(Id.) However, he found that Mr. Copelin’s
physical impairments of obesity, hypertensive vascular
disease, headaches, chronic kidney disease, hypertension,
visual deficits, and breathing difficulties are non-severe or
not medically determinable. (AR 135-36.) The ALJ determined
at step three that Mr. Copelin does not have an impairment or
combination of impairments that meets or medically equals one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (AR 136.)
four, the ALJ found that Mr. Copelin has the RFC to perform a
full range of work at all exertional levels subject to the
following non-exertional limitations:
[Mr. Copelin] can understand, remember, and carry out
two-step commands involving simple instructions, can
concentrate and maintain persistence on simple tasks, and can
complete tasks consisting of one to three step instructions.
He is able to maintain extended periods of concentration and
attention greater than 2hour segments and maintain attendance
and complete a normal workweek and maintain pace. [Mr.
Copelin] can relate on a superficial basis to coworkers and
supervisors, but is limited to occasional contact with the
(AR 138.) Based on this RFC, the ALJ determined that Mr.
Copelin can perform his past relevant work as a stock clerk
or warehouse worker and is therefore not disabled. (AR 140.)
Alternatively, the ALJ proceeded to step five, finding that
Mr. Copelin can perform other work in the national economy
and is not disabled for this reason as well. (AR 141.)
support of his motion to reverse or remand, Mr. Copelin
claims that the ALJ erred by finding that his hypertension,
kidney disease, and headaches are not severe or medically
determinable. (Doc. 22 at 2-4.) He also claims that the
Appeals Council erred by declining to consider additional
evidence he submitted after the administrative hearing.
(Id. at 4-6.)
Summary of Record Evidence
September 2014, Mr. Copelin’s mother, Diana Copelin,
completed a third-party adult function report. (AR 248-55.)
Ms. Copelin indicated that, as daily activities, Mr. Copelin
cares for pets, checks the weather on television, does some
yard work, home repair, or paperwork for his great aunt as
needed and depending on how he feels, prepares dinner for Ms.
Copelin and her mother, and retires to his home, which is an
RV on Ms. Copelin’s property. (AR 45-46, 248-49.) Ms.
Copelin reported that Mr. Copelin used to but can no longer
camp, jog, hike, sculpt, work for longer periods of time, and
be more physically active. (AR 249.) According to Ms.
Copelin, Mr. Copelin walks, drives a car, shops for groceries
and parts once a month, can pay bills and handle money, plays
video games, cooks, has a girlfriend, and visits his great
aunt twice a month. (AR 251-52.) Ms. Copelin also indicated
that: (1) sometimes Mr. Copelin’s hands and legs
“go numb so he can’t use them [and] he must
stop [until] feeling comes back”; (2) he wakes with
headaches and has them all day; and, (3) he has high blood
pressure that his treatment providers have been unable to
lower for any length of time. (AR 255.)
Copelin also completed an adult function report in September
2014. (AR 276-83.) According to Mr. Copelin, on many mornings
he is “stuck in bed” for a few hours before he
gets up, but if “lucky” he can “get a few
things done” before noon. (AR 276.) Mr. Copelin
reported that he then rests and cools down until 3:30 to 4:30
p.m., when he makes dinner for his mother and grandmother.
(Id.) Afterward, he watches television or
“mess[es] on the computer” until he gets to
sleep, between 9:00 p.m. and 2:00 a.m. depending “on
conditions.” (Id.) According to Mr. Copelin,
he either wakes every hour or two to go to the bathroom or
sleeps through the night but wakes with a “major
headache.” (Id.) Mr. Copelin explained that on
most days he wakes with a headache that worsens if he moves
and usually takes a few hours to become
“manageable.” (AR 277.) Mr. Copelin confirmed
that he cares for his pet, plans and cooks dinner for his
mother and grandmother, does household chores, repairs, and
yard work for short periods of time, walks, drives a car,
shops for groceries and parts once a month or every other
month, visits his girlfriend, and can pay bills and handle
money. (AR 277-80.) Mr. Copelin also indicated that: (1)
walking is “more of an issue with the heat”; (2)
he cannot sit for extended periods because his legs go numb;
(3) he cannot climb a flight of steps without gasping for
air; and, (4) his hands, legs, arms, and feet sometimes go
numb. (AR 283.)
Mr. Copelin’s Testimony
March 2017 administrative hearing, Mr. Copelin testified
that, most mornings, he gets up, goes outside, goes back
inside, and lays down until about noon, makes lunch, and then
is up “for a little bit.” (AR 52.) According to
Mr. Copelin, he then lays back down until about 6:00 p.m.,
when he gets back up to cook dinner and then lays back down.
(Id.) Mr. Copelin ...