United States District Court, D. New Mexico
CINDY M. HERRERA, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER 
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Social Security
Administrative Record (Doc. 17) filed January 23, 2019, in
support of Plaintiff Cindy M. Herrera'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
Title II of the Social Security Act, 42 U.S.C. § 401
et seq. On April 1, 2019, Plaintiff filed her Motion
to Reverse and Remand for a Rehearing With Supporting
Memorandum. Doc. 18. The Commissioner filed a Response on May
30, 2019 (Doc. 20), and Plaintiff filed a Reply on July 17,
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
Cindy M. Herrera suffers from the following severe
impairments: post-traumatic stress disorder
(“PTSD”), panic disorder without agoraphobia;
major depressive disorder; borderline personality disorder;
generalized anxiety disorder; phobias; fibromyalgia; asthma;
chronic pain syndrome; lumbar radiculopathy, cervical
stenosis, and sacrodynia. Administrative Record
(“AR”) at 125. She has a high school diploma and
attended a few weeks of community college. AR 189-90, 592.
She has past relevant work as a bookkeeper and cashier. AR
20, 2013, Ms. Herrera filed concurrent claims of disability
under Title II and Title XVI of the Social Security Act. AR
250, 353. She alleges that she became disabled as of November
1, 2006. AR 353. Her applications were denied on October 23,
2013 (AR 314-15), and upon reconsideration on June 10, 2014
(AR 348-49). Administrative Law Judge (“ALJ”) Kim
Fields conducted a hearing on February 10, 2016. AR 188-201.
Ms. Herrera appeared in person at the hearing with attorney
representative Michael Armstrong. Id. The ALJ took
testimony from Ms. Herrera; Richard Adams, MD, Medical
Expert; and Charles Edward Smith, Vocational Expert
(“VE”). AR 178.
March 25, 2016, ALJ Fields issued an unfavorable decision. AR
353-66. On April 27, 2017, the Appeals Council issued a
decision granting Ms. Herrera's request for review and
remanding the case for further proceedings. AR 374-75. On
January 12, 2018, Ms. Herrera appeared for a second hearing
before ALJ Eric Weiss with attorney representatives Scott
Rode and Laura Johnson. AR 202, 731. ALJ Weiss also heard
from VE Mary Weber. AR 202. At the hearing, the ALJ
recognized that Ms. Herrera had amended her alleged onset
date to December 1, 2011. AR 210. ALJ Weiss issued an
unfavorable decision on March 27, 2018. AR 122-36. The
Appeals Council denied a timely request for review on
September 20, 2018, making the ALJ's decision the final
decision of the Commissioner. AR 1-4. On November 19, 2018,
Ms. Herrera timely filed a Complaint seeking judicial review.
Doc. 1. Because the parties are familiar with Ms.
Herrera's medical history, the Court reserves discussion
of the medical records relevant to this appeal for its
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.” If the claimant is engaged in
substantial gainful activity, she is not disabled regardless
of her medical condition.
(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
(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. Herrera argues that the
ALJ: (1) impermissibly engaged in “picking and
choosing” among the assigned limitations in the state
agency non-examining consultants' opinions; (2) failed to
sufficiently credit the opinion of her treating physician,
Dr. Roxana Raicu; and (3) failed to state sufficient reasons
for discounting her subjective symptom evidence related to
pain caused by her fibromyalgia. The Court does not find
these arguments compelling and affirms the ALJ's
The ALJ Did Not Improperly Disregard The State Agency
agency consultant Cathy Simutis, Ph.D, evaluated Ms.
Herrera's medical records on October 23, 2013. AR 250-81.
Dr. Simutis reviewed and discussed the medical evidence and,
in answering questions relating to Ms. Herrera's mental
residual functional capacity assessment
(“MRFCA”), assessed in worksheet format the
following “moderate limitations”:
• Remembering locations and work-like procedures;
• Understanding and remembering very short and simple
• Carrying out very short and simple instructions;
• Maintaining attention and concentration for extended
• Completing a normal workday or workweek without
interruption from psychologically based symptoms and
performing at a consistent pace without unreasonable rest
• Accepting instructions and responding appropriately to
criticism from supervisors; and
• Being aware of normal hazards and taking appropriate
261-63. Dr. Simitus found that Ms. Herrera was markedly
• Understanding and remembering detailed instructions;
• Carrying out detailed instructions; and
• Interacting appropriately with the general public.
261-63. In her narrative explanation, Dr. Simitus concluded
that Ms. Herrera
is able to perform work where interpersonal contact is
incidental to work performed, complexity of tasks is learned
and performed by rote, few variables, little judgment,
supervision required is simple, direct and concrete
Dr. Simitus' findings were affirmed by Dr. Donald Gucker,
Ph.D. on reconsideration.
accorded the opinions of Dr. Simitus and Dr. Gucker
“great weight” at step four because
“[t]hese physicians are familiar with Agency policy and
regulations and provided a detailed functional assessment of
the claimant's abilities and limitations.” AR 133.
“Further, although rendered in 2013 and 2014,
subsequent evidence is consistent with this analysis and, if
anything, shows improvement in the claimant's
functioning, based on mental status examination findings
noted above.” Id. In relevant part, the ALJ
calculated Ms. Herrera's RFC as follows:
She must avoid more than occasional exposure to extreme cold,
unprotected heights, and dangerous moving machinery, and must
avoid more than occasional exposure to pulmonary irritants
such as dust, fumes, odors and gases. She is able to
understand, remember, and carry out simple instructions, and
make commensurate work related decisions in a work setting
with few, if any, changes. She is able to interact
occasionally with supervisors, co-workers and the public, and
maintain concentration, persistence and pace for two hours at
a time during the workday with normally scheduled breaks.
Herrera argues that the ALJ thus engaged in prohibited
“picking and choosing” of the limitations in the
opinions of Dr. Simitus and Dr. Gucker without explanation.
Doc. 18 at 14. She invokes the Tenth Circuit's holding in
Haga v. Astrue that “[a]n ALJ is not entitled
to pick and choose through an uncontradicted medical opinion,
taking only the parts that are favorable to a finding of
nondisability.” 482 F.3d 1205, 1208 (10th Cir. 2007);
see Doc. 18 at 14. In Haga, a state agency
examining psychological consultant reviewed the record and
recommended additional testing for the claimant. 482 F.3d at
1207. The ALJ agreed and the doctor did his additional tests.
Id. “[P]art of his detailed response was to
fill out a mental RFC form, on which he marked appellant
moderately impaired in seven out of ten functional
categories.” Id. While the ALJ's RFC
incorporated three of these moderate limitations, it did not
incorporate the other four. Id. Further, the ALJ did
not provide an explanation for rejecting the remaining four
moderate limitations and “the evidence on which the ALJ
explicitly relied in his decision [did] not imply an
explanation . . . .” Id.
appeal, the Tenth Circuit noted “it is simply
unexplained why the ALJ adopted some of [the doctor]'s
restrictions but not others.” Id. at 1208.
Although an “ALJ is entitled to resolve any conflicts
in the record, ” the court stressed that an ALJ must
actually identify the evidence that conflicts with the
doctor's medical opinion or RFC assessment. Id.
The Tenth Circuit reinforced this point later that same year
when it applied Haga to remand where the “ALJ
erred in accepting some of the moderate limitations in the
Mental RFC form completed by . . . a nonexamining physician,
but rejecting others without discussion.” Frantz v.
Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007).
doctor who assesses Section I moderate limitations also
opines on a claimant's residual functioning capacity,
however, the ALJ does not necessarily need to accept or
discuss each moderate limitation. This limitation of Haga
and Astrue's scope comes from the Tenth
Circuit's decision in Smith v. Colvin, 821 F.3d
1264, 1268-69 (10th Cir. 2016). In Smith, the
consulting doctor reviewed the claimant's records and
completed a worksheet finding that she had moderate
limitations in her ability to:
• maintain concentration, persistence, and pace,
• remain attentive and keep concentration for extended