United States District Court, D. New Mexico
VERONICA L. KELLEY, Plaintiff,
ANDREW M. SAUL,  Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiff Veronica L.
Kelley's Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 16), which was fully briefed
on June 24, 2019. See Docs. 20, 21, 22. The parties
consented to my entering final judgment in this case. Docs.
3, 7, 8. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) failed to
resolve a conflict between the vocational expert's
(“VE's”) testimony and the Dictionary of
Occupational Titles (“DOT”). I therefore GRANT
Ms. Kelley's motion and remand this case to the
Commissioner for further proceedings consistent with this
Standard of Review
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).
“The 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 and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
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. While the 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
ALJ'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. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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); 20 C.F.R. § 404.1505(a).
considering a disability application, the Commissioner is
required to use 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) the claimant is not
engaged in “substantial gainful activity”; (2)
the claimant 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) the impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
Background and Procedural History
Kelley was born in 1970, earned a bachelor's degree in
horticulture, and worked as an office assistant, a hotel
attendant, an office manager at a nursery, a lab technician,
and a security assistant. AR 57, 204, 227. Ms. Kelley filed
an application for Disability Insurance Benefits
(“DIB”) on September 5, 2014, alleging disability
since November 13, 2009,  due to lupus, Sjogren's syndrome,
Raynaud's disease, fibromyalgia, fatty liver disease, and
hypersomnia. AR 204-05, 226. The Social Security
Administration (“SSA”) denied her claim initially
on March 13, 2015. AR 133-35. The SSA denied her claims on
reconsideration on July 23, 2015. AR 139-43. Ms. Kelley
requested a hearing before an ALJ. AR 144-45. On July 18,
2017, ALJ Lillian Richter held a hearing. AR 47-98. ALJ
Richter issued her unfavorable decision on December 27, 2017.
found that Ms. Kelley met the insured requirements of the
Social Security Act through December 31, 2014. AR 31. At step
one, the ALJ found that Ms. Kelley had not engaged in
substantial, gainful activity since July 1, 2012, her amended
alleged onset date. Id. At step two, the ALJ found
that Ms. Kelley suffered from the following severe
impairments: “systemic lupus erythematosus, fatigue,
fibromyalgia, Raynaud[']s syndrome, somatic symptom
disorder, mild neurocognitive disorder due to fibromyalgia,
Sjogren's syndrome, fibromyositis, anxiety, and
depression.” AR 32.
three, the ALJ found that none of Ms. Kelley's
impairments, alone or in combination, met or medically
equaled a Listing. AR 32-35. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Ms.
Kelley's RFC. AR 35-40. The ALJ found Ms. Kelley had the
to perform a limited range of sedentary work as defined in 20
CFR 404.1567(a) except the claimant can occasionally stoop,
kneel, crouch and crawl, can occasionally climb ramps and
stairs, can never balance, can never climb ladders, ropes or
scaffolds. The claimant should avoid exposure to unprotected
heights and hazardous machinery. The claimant can frequently
handle and can frequently finger and feel bilaterally. The
claimant is limited to simple routine work. The claimant
cannot perform work outside and should avoid exposure to
four, the ALJ concluded that Ms. Kelley could not perform any
of her past relevant work. AR 40. The ALJ found Ms. Kelley
not disabled at step five because she could perform jobs that
exist in significant numbers in the national economy-such as
“telephone quotation clerk, ” “charge
account clerk, ” and “call out operator.”
AR 40-41. On January 30, 2018, Ms. Kelley requested that the
Appeals Council review the ALJ's unfavorable decision. AR
203. Ms. Kelley submitted additional evidence to the Appeals
Council. AR 8-20. On September 15, 2018, the Appeals Council
denied the request for review and found that the additional
evidence did “not relate to the period at issue.”
AR 1-4. Ms. Kelley timely filed her appeal to this Court on
November 13, 2018. Doc. 1.