United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO REVERSE OR REMAND
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand to Agency for Rehearing, with Supporting
Memorandum [Doc. 17], filed on June 5, 2019. The Commissioner
responded on July 31, 2019. [Doc. 20]. Plaintiff replied on
August 28, 2019. [Doc. 21]. The parties have consented to my
entering final judgment in this case. [Doc. 7]. Having
meticulously reviewed the entire record and being fully
advised in the premises, the Court finds that Plaintiff fails
to show reversible error in the Administrative Law
Judge's evaluation of certain source opinions. The Motion
will be denied, and the Commissioner's final decision,
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). Courts
must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. The 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. While a court
may not reweigh the evidence or try the issues de novo, its
examination of the record as a whole must include
“anything that may undercut or detract from the
[Commissioner]'s findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings
from being supported by substantial evidence.” Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
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.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks
court's review is limited to the Commissioner's final
decision, 42 U.S.C. § 405(g), which generally is the
ALJ's decision, 20 C.F.R. § 404.981 (1980). In some
situations, however, the Tenth Circuit has held that a court
must consider evidence beyond that which was before the ALJ.
See Martinez v. Barnhart, 444 F.3d 1201, 1207-08
(10th Cir. 2006); O'Dell v. Shalala, 44 F.3d
855, 859 (10th Cir. 1994). Pursuant to 20 C.F.R. §
404.970(b), any new and material evidence that relates to the
period on or before the date of the ALJ's decision shall
be considered by the Appeals Council in determining whether
to review the ALJ's decision. If the Appeals Council
denies review, the ALJ's decision becomes the
Commissioner's final decision. O'Dell, 44
F.3d at 858 (citing 20 C.F.R. § 404.981). A court
reviews the Commissioner's decision, which is the
ALJ's decision and not the Appeals Council's denial
of review. See Id. Because a court reviews the final
decision based on “the record as a whole, ” it
will consider the evidence that was before the ALJ as well as
the new and material evidence that was before the Appeals
Council. Id. (citing Castellano v. Sec'y of
Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.
1994)). Considering all the evidence in the administrative
record, a court decides whether the ALJ's findings are
supported by substantial evidence and whether the correct
legal standards were applied. Maes, 522 F.3d at
the Court reviews the ALJ's decision considering the
entire record, which does not include the evidence
submitted to, but rejected by, the Appeals Council and not
exhibited in the record. Tr. 2, 34-152. Plaintiff references
some of this evidence: two progress notes from Dr. Lang dated
May 21, 2015, Tr. 88, and July 2, 2015, Tr. 87. However,
Plaintiff raises no clear challenge to the disposition of
these progress notes from Dr. Lang or any of the other
evidence. See [Docs. 17, 21]. If the
Appeals Council had considered any of the evidence, this
Court would also include the evidence in its review of the
entire record. However, because the Appeals Council did not
consider it-a determination not challenged by Plaintiff-this
Court does not consider it either.
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant must
establish that he 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); 20 C.F.R.
considering a disability application, the Commissioner
utilizes a five-step sequential evaluation process. 20 C.F.R.
§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140
(1987). At the first four steps of the evaluation process,
the claimant must show: (1) he is not engaged in
“substantial gainful activity”; and (2)
he 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) his impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) he is unable to perform his “past
relevant work.” 20 C.F.R. §
404.1520(a)(4)(i)-(iv); Grogan, 399 F.3d at 1261. If
he cannot show that his impairment meets or equals a Listing,
but he proves that he is unable to perform his “past
relevant work, ” the burden of proof then shifts to the
Commissioner, at step five, to show that the claimant is able
to perform other work in the national economy, considering
his RFC, age, education, and work experience.
Grogan, 399 F.3d at 1261.
applied for a period of disability and disability insurance
benefits on November 24, 2014. Tr. 18. He alleged a
disability-onset date of January 7, 2008. Id. His
claims were denied initially and on reconsideration.
Id. ALJ Ann Farris held a hearing on May 2, 2017, in
Albuquerque, New Mexico. Tr. 18, 153. Plaintiff appeared by
videoconference from Santa Fe, New Mexico, with his attorney.
Tr. 18, 153. The ALJ heard testimony from Plaintiff and an
impartial vocational expert (“VE”), Nicole B.
King, who testified via telephone. Tr. 18, 153-74.
issued her unfavorable decision on September 25, 2017. Tr.
29. She found that Plaintiff met the insured status
requirements of the Social Security Act through March 31,
2013. Tr. 20. At step one, she found that Plaintiff had not
engaged in substantial gainful activity during the period
between his alleged onset date and his date last insured.
Id. At step two, the ALJ found that Plaintiff
suffered from the following severe impairments: “major
depressive disorder, alcohol abuse, and anxiety.”
three, the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 21-22. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 22-27. The ALJ found
through the date last insured, Plaintiff had the RFC to
perform “a full range of work at all exertional levels
but with the following nonexertional limitations: [Plaintiff
was] limited to simple routine tasks, involving no
interaction with the public, and only occasional superficial
interaction with co-workers.” Tr. 22.
four, the ALJ found that Plaintiff was unable to perform his
past relevant work as a security guard. Tr. 27. Accordingly,
the ALJ went on to consider Plaintiff's RFC, age,
education, work experience, and the testimony of the VE at
step five. Tr. 27-28. She found that Plaintiff could perform
work that exists in significant numbers in the national
economy and, therefore, was not disabled. Tr. 28. The Appeals