United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
C. YARBROUGH, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 17) filed February 25, 2019, in
support of Plaintiff Jessica Lynn White's Complaint (Doc.
1) seeking review of the decision of Defendant Andrew Saul,
Commissioner of the Social Security Administration, denying
Plaintiff's claim for disability insurance benefits under
Titles II and XVI of the Social Security Act (the
“Act”), 42 U.S.C. § 401 et seq. On April 29,
2019, Plaintiff filed her Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum (“Motion”).
Doc. 19. The Commissioner filed a Response on July 9, 2019
(Doc. 22), and Plaintiff filed a Reply on July 22, 2019 (Doc.
23). The 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 applicable law and being fully
advised in the premises, the Court finds the Motion is not
well taken and is DENIED.
and Procedural Record
Jessica Lynn White suffers from the following severe
impairments: post-traumatic stress disorder; bipolar
disorder; major depressive disorder; and anxiety.
Administrative Record (“AR”) at 512. Plaintiff
graduated from high school. AR 263. She attended vocational
college and obtained certifications in: automotive
fundamentals (tune-ups, oil changes, brake changes); office
management (clerical work), which she obtained online; and,
as reported to a psychologist, phlebotomy. AR 263, 576, 588,
806. She has past relevant work as an office manager. AR 602.
18, 2012, Ms. White filed concurrent claims of disability
under Title II and Title XVI of the Social Security Act,
alleging disability beginning May 25, 2008. AR 72, 84. Her
applications were initially denied on December 3, 2012 (AR
96-97), and upon reconsideration on July 10 & 12, 2013
(AR 124-25). Ms. White requested a hearing on September 6,
2013. AR 155-58. Administrative Law Judge (“ALJ”)
John W. Rolph conducted a hearing on October 3, 2014. AR
36-70. Ms. White appeared in person at the hearing with
attorney representative Michael Armstrong. AR 36. The ALJ
took testimony from Ms. White and Vocational Expert
(“VE”) Nicole King. AR 36.
January 21, 2015, ALJ Rolph issued an unfavorable decision.
AR 18-30. On February 6, 2015, the Appeals Council denied Ms.
White's request for review. AR 1-4. Ms. White filed a
timely appeal with this Court on June 14, 2016. AR 566-67. On
May 24, 2017, Magistrate Judge Carmen E. Garza reversed and
remanded for a rehearing. 545-63. Judge Garza found that ALJ
Rolph's discussion of the medical opinions was confusing
and left the Court unable to perform a meaningful review. AR
555-62. “On remand, ” she concluded, “the
ALJ should properly weigh all medical opinions in the
record.” AR 562.
Appeals Council then issued an order remanding the case to an
ALJ to offer Ms. White the opportunity for a hearing, to
complete the administrative record, and to issue a new
decision consistent with the order of the court. AR 537. On
September 7, 2018, Ms. White appeared for a second hearing,
this time before ALJ Stephen Gontis with attorney
representative Laura Johnson. AR 570. ALJ Gontis also heard
from VE Kristi Wilson. AR 571.
Gontis issued an unfavorable decision on September 21, 2018.
AR 508-26. In that decision, ALJ Gontis recognized that Ms.
White amended her alleged onset date to June 18, 2011 and
again to May 15, 2012. AR 511. But Ms. White's date last
insured was June 20, 2010. Id. Therefore, ALJ Gontis
found that Ms. White waived her Title II claim. Id.
He also noted that Ms. White “requested a closed period
as she returned to work on April 29, 2017.”
Id. Therefore, the remainder of his decision
addressed the timeframe of May 15, 2012 to April 29, 2017 for
the purpose of Title XVI benefits. Id. Ms. White
does not appeal this holding, as the Commissioner notes. Doc
22 at 2 n.2.
Gontis' decision is the final decision of the
Commissioner. 20 C.F.R. §§ 404.984, 416.1484. On
December 11, 2018, Ms. White timely filed a Complaint seeking
judicial review. Doc. 1. The Court reserves discussion of the
medical records relevant to this appeal for its analysis.
Disability Determination Process
individual is considered disabled if 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) (pertaining
to disability insurance benefits); see also Id.
§ 1382(a)(3)(A) (pertaining to supplemental security
income disability benefits for adult individuals). The Social
Security Commissioner has adopted the familiar five-step
sequential evaluation process (“SEP”) to
determine whether a person satisfies the statutory criteria
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful activity”
(“SGA”). If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her
(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(s) or combination of impairments
that is severe and meets the duration requirement, she is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listings described in
Appendix 1 of the regulations, the ALJ must determine at step
four whether the claimant can perform her “past
relevant work.” Answering this question involves three
phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). First, the ALJ considers all of the relevant medical
and other evidence and determines what is “the most
[the claimant] can still do despite [her physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). This is called the claimant's residual
functional capacity (“RFC”). Id.
§§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ
determines the physical and mental demands of the
claimant's past work. Third, the ALJ determines whether,
given the claimant's RFC, the claimant is capable of
meeting those demands. A claimant who is capable of returning
to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her 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.
See 20 C.F.R. § 404.1520(a)(4) (disability insurance
benefits); 20 C.F.R. § 416.920(a)(4) (supplemental
security income disability benefits); Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan
v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
claimant has the initial 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 work in the national economy.
Id. A finding that the claimant is disabled or not
disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Sec'y of
Health & Human Serv., 933 F.2d 799, 801 (10th Cir.
Standard of Review
Court must affirm the Commissioner's denial of social
security benefits unless (1) the decision is not supported by
“substantial evidence” or (2) the ALJ did not
apply the proper legal standards in reaching the decision. 42
U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004); Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933
F.2d at 800-01. In making these determinations, the Court
“neither reweigh[s] the evidence nor substitute[s]
[its] judgment for that of the agency.'” Bowman
v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
“[W]hatever the meaning of ‘substantial' in
other contexts, the threshold for such evidentiary
sufficiency is not high.” Biestek v.
Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial
evidence “is ‘more than a mere
scintilla.'” Id. (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It
means-and means only-such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Id. (internal quotation marks omitted).
decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record, ”
Langley, 373 F.3d at 1118, or “constitutes
mere conclusion, ” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). The agency decision must
“provide this 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). Therefore, 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's] reasons for
finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.
1996). But where the reviewing court “can follow the
adjudicator's reasoning” in conducting its review,
“and can determine that correct legal standards have
been applied, merely technical omissions in the ALJ's
reasoning do not dictate reversal.” Keyes-Zachary
v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The
court “should, indeed must, exercise common
sense.” Id. “The more comprehensive the
ALJ's explanation, the easier [the] task; but [the court]
cannot insist on technical perfection.” Id.
support of her Motion to Remand, Ms. White argues that ALJ
Gontis failed to comply with the remand instructions of this
Court as set forth in Judge Garza's 2017 memorandum
opinion. Specifically, Ms. White argues that ALJ Gontis
failed to follow Judge Garza's instructions when he
evaluated the opinions of consultative examiner Dr. John Owen
and treating counselor LPCC Lisa Harvey. In addition, Ms.
White argues that substantial evidence does not support ALJ
Gontis' evaluation of the opinion of consultative
examiner Steven K. Baum, PhD. The Court does not find these
arguments compelling and affirms the ALJ's decision.
Gontis Did Not Violate the Mandate Rule.
White's main argument for remand concerns the
“mandate rule.” Doc. 19 at 14. “Although
primarily applicable between courts of different levels, the
[law of the case] doctrine and the mandate rule apply to
judicial review of administrative decisions, and require the
administrative agency, on remand from a court, to conform its
further proceedings in the case to the principles set forth
in the judicial decision, unless there is a compelling reason
to depart.” Grigsby v. Barnhart, 294 F.3d
1215, 1218 (10th Cir. 2002) (internal quotation marks and
alterations omitted). “Obviously, the court which
drafted the mandate is normally in the best position to
determine whether the [agency]'s subsequent order is
consistent with the mandate . . . .” F.T.C. v.
Colgate-Palmolive Co., 380 U.S. 374, 379 (1965); see
also Patterson v. Apfel, 198 F.3d 258, 1999 WL
1032973, at *4 (10th Cir. 1999) (unpublished table decision)
(“the court issuing a mandate governing further
proceedings is in the best position to interpret the scope of
that mandate”). The Court finds that ALJ Gontis did not
violate the mandate rule with respect to the opinions of Dr.
Owen and LPCC Harvey.
November 2012, consulting psychologist John P. Owen, Ph.D.
performed an evaluation of Ms. White. AR 465-67. Dr. Owen
found Ms. White cooperative and that she “understood
simple questions and instructions.” AR 466. He
estimated that she functions in at least the average range of
mental ability. Id. Dr. Owen discussed at length Ms.
Smith's history of trauma and found that “[s]he
certainly has characteristics and symptoms consistent with
the diagnosis of PTSD.” AR 465, 467. He stated that her
“Obsessive Compulsive Disorder diagnosis seems to be
accurate”; that she “is in therapy and takes
medication for her ...