United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand to Agency for Rehearing, with Supporting
Memorandum (Doc. 20) filed on July 12, 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. 3;
10; 11. Having considered the record,
submissions of counsel, and relevant law, the Court finds
Plaintiff's motion is well-taken and will be granted in
January 13, 2015, Ms. Nancy Beatriz Martinez (Plaintiff)
protectively 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
(SSI) under Title XVI of the SSA. Administrative
Record (AR) at 224, 231. Plaintiff alleged a
disability onset date of January 8, 2015. AR at 224, 231.
Disability Determination Services (DDS) determined that
Plaintiff was not disabled both initially (AR at 65-96) and
on reconsideration (AR at 97-124). Plaintiff requested a
hearing with an Administrative Law Judge (ALJ) on the merits
of her applications. AR at 143-44.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 34-64. ALJ
Lillian Richter issued an unfavorable decision on March 23,
2018. AR at 12-33. Plaintiff submitted a Request for Review
of Hearing Decision/Order to the Appeals Council (AR at 166),
which the council denied on November 5, 2018 (AR at 1-7).
Consequently, the ALJ's decision became the final
decision of the Commissioner. See 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. §§
404.1505(a), 416.905(a). The Commissioner must use a
five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. §§
404.1520(a)(4), 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 §§ 404.1520(a)(4)(i-iv), 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” Plaintiff
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. §§
One of the process,  ALJ Richter found that Plaintiff
“has not engaged in substantial gainful activity since
January 8, 2015, the alleged onset date.” AR at 20
(citing 20 C.F.R. §§ 404.1571-1576, 416.971-976).
At Step Two, the ALJ concluded that Plaintiff “has the
following severe impairments: diabetes with polyneuropathy,
obesity, chronic chest pain, calcaneal spurs of the left
hand, major depressive disorder, borderline intellectual
functioning, mild degenerative disc disease of the lumbar
spine, right plantar fasciitis post fasciotomy, bilateral
ankle/foot arthrosis, and moderate obstructive sleep
apnea.” AR at 20 (citing 20 C.F.R. §§
404.1520(c), 416.920(c)). The ALJ noted that Plaintiff has
the following non-severe impairments: hepatomegaly,
gastritis, hiatal hernia, dyslipidemia, vitamin-D deficiency,
hypertension, TMJ, and a sebaceous cyst. AR at 21.
Three, the ALJ found that Plaintiff “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 21 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926). At Step Four, the ALJ considered the evidence of
record and found that Plaintiff
has the [RFC] to perform work at the sedentary exertional
level as defined by 20 [C.F.R. §] 404.156, 20 [C.F.R
§] 416.967 and SSR 83-10. She can occasionally stoop,
kneel, crouch, crawl and climb ramps or stairs, but she can
never balance or climb ladders, ropes or scaffolds. She
should avoid exposure to unprotected heights, hazardous
machinery, dust, odors, fumes and other pulmonary irritants.
She cannot operate a motor vehicle. She can frequently handle
and finger bilaterally. [She] is limited to simple, routine
and repetitive work and can make simple, work-related
decisions in a workplace with few changes in [a] routine
setting. She can have incidental interaction with the general
public. [She] can hear, understand and communicate simple
information. She may require the use of a handheld assistive
device for purposes of ambulation.
AR at 23. ALJ Richter found that Plaintiff “is unable
to perform any past relevant work.” AR at 26 (citing 20
C.F.R. §§ 404.1565, 416.965). The ALJ found that
Plaintiff can perform the jobs of stuffer, touch-up screener,
and table worker. ALJ at 27. The ALJ ultimately determined
that Plaintiff “has not been under a disability, as
defined in the Social Security Act, from January 8, 2015,
through the date of [the ALJ's] decision.” AR at 28
(citing 20 C.F.R. §§ 404.1520(g), 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)). 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
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
court would justifiably have made a different choice had the
matter been before it de novo.'” Id.
(quoting Zoltanski, 372 F.3d at 1200).
raises three issues in her motion. She argues that the ALJ
erred in: (1) failing to properly evaluate her RFC; (2)
failing to fully consider the impact of her obesity in
combination with her other impairments; and (3) failing to
evaluate whether a significant number of jobs exists in the
national economy. See Doc. 20 at 5.
The ALJ adequately evaluated Plaintiff's RFC.
argues that ALJ Richter erred in evaluating the RFC, because
she failed to properly consider the opinions of Eligio
Padilla, Ph.D. and Jorge Sedas, M.D., as well as
Plaintiff's own statements. Id. at 14-18.
The ALJ adequately evaluated Dr. Padilla's
first argues that the ALJ erred in evaluating the opinion of
Dr. Padilla, who is a psychologist and an acceptable medical
source under the regulations. See Doc. 20 at 14-15.
Plaintiff saw Dr. Padilla one time in connection with her
application for DIB and SSI. See AR at 577-83. Dr.
Padilla completed a Psychological Source Statement of Ability
to do Work-Related Activities, where he opined that Plaintiff
had marked limitations in her abilities to understand and
remember detailed or complex instructions, carry out
instructions, attend and concentrate, work without
supervision, interact with the public or her supervisors, and
adapt to changes in the workplace; a moderate limitation in
her abilities to interact with coworkers; and mild
limitations in her abilities to understand and remember short
and simple instructions, be aware of normal hazards and react
appropriately, and use public transportation or travel to
unfamiliar places. AR at 581.
considering the opinions of medical sources, the Tenth
Circuit has expressly noted that
an ALJ must consider the opinion of every medical
source and provide specific, legitimate reasons for rejecting
it. Doyal v. Barnhart, 331 F.3d 758, 764 (10th
Cir.2003); see also SSR 96-5p, 1996 WL 374183, at * 1
(“opinions from any medical source about issues
reserved to the Commissioner must never be ignored”). .
. . When deciding what weight to assign to an opinion, an ALJ
must consider the factors set forth at 20 C.F.R. §§
404.1527(d) and 416.927(d).
Lauxman v. Astrue, 321 Fed.Appx. 766, 769 n.2 (10th
Cir. 2009) (emphasis added) (citing Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir.
2004)). Thus, the factors for otherwise assessing the weight
to be given to a medical opinion are the same, whether given
by a treating or non-treating source, and include:
(1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the
treatment relationship, including the treatment provided and
the kind of examination or testing performed; (3) the degree
to which the physician's opinion is supported by relevant
evidence; (4) consistency between the opinion and the record
as a whole; (5) whether or not the physician is a specialist
in the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ's attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.
2003) (quotations omitted).
respect to the first and fifth factors, the ALJ noted that
Plaintiff saw Dr. Padilla for a consultative examination. AR
at 22. With respect to the second factor, ALJ Richter
summarized Dr. Padilla's examination of Plaintiff and his
findings. AR at 22 (citing AR at 577-83). With respect to the
third and fourth factors, the ALJ made specific findings
(discussed below) regarding how ...