United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR United States Magistrate Judge
MATTER is before the Court on Plaintiff's Motion to
Reverse and/or Remand [Doc. 21], filed on July 3, 2019. The
Commissioner responded on August 30, 2019. [Doc. 26].
Plaintiff replied on September 13, 2019. [Doc. 27]. The
parties have consented to my entering final judgment in this
case. [Doc. 11]. Having meticulously reviewed the entire
record and being fully advised in the premises, the Court
finds that the Appeals Council erred in failing to consider
the letters of Dr. Hninn and Dr. Kuny. Accordingly, the
Motion will be granted, and the case will be remanded for
further proceedings. See 42 U.S.C. § 405(g)
(sentence four) (2018).
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant 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),
1382c(a)(3)(A) (2018); see 20 C.F.R. §§
404.1505(a), 416.905(a) (2012).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20
C.F.R. §§ 404.1520, 416.920 (2012). At the first
four steps of the evaluation process, the claimant must show:
(1) she is not engaged in “substantial gainful
activity”; and (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) either meet or equal one of the
“Listings”of presumptively disabling impairments;
or (4) she is unable to perform her “past
relevant work.” §§ 404.1520(a)(4)(i)-(iv),
416.920(a)(4)(i)-(iv); see Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). If she cannot show that her
impairment meets or equals a Listing, but she proves that she
is unable to perform her “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 her residual functional
capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
applied for a period of disability and disability insurance
benefits on March 17, 2015. Tr. 26. She alleged a
disability-onset date of March 31, 2014. Id. Her
claims were denied initially and on reconsideration.
Id. Administrative Law Judge (“ALJ”)
Eric Weiss held a hearing on September 7, 2017, in
Albuquerque, New Mexico. Tr. 26, 49. Plaintiff appeared in
person with her attorney. Tr. 26, 51. The ALJ heard testimony
from Plaintiff and an impartial vocational expert
(“VE”), Mary Weber, who testified via telephone.
Tr. 26, 75-81.
issued his unfavorable decision on February 23, 2018. Tr. 41.
He found that Plaintiff met the insured status requirements
of the Social Security Act through December 31, 2019. Tr. 28.
At step one, he found that Plaintiff had not engaged in
substantial gainful activity since March 31, 2014, her
alleged onset date. Id. At step two, the ALJ found
that Plaintiff suffered from the following severe
impairments: obesity, asthma, right shoulder bursitis and
acromioclavicular joint arthritis, obstructive sleep apnea,
lumbar spondylosis and facet joint syndrome with
radiculopathy, somatization disorder, post-traumatic stress
disorder (“PTSD”), and major depressive disorder.
Id. The ALJ also found that Plaintiff's
gastroesophageal reflux disease, hypertension, vocal cord
dysfunction, mild osteoarthritis of the right hip, partial
medial meniscus tears, and headaches were not severe. Tr. 29.
Finally, the ALJ found that Plaintiff had failed to establish
fibromyalgia as a medically determinable impairment. Tr.
three, the ALJ determined that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled a Listing. Tr. 30-33. Because none of Plaintiff's
impairments met or medically equaled a Listing, the ALJ went
on to assess Plaintiff's RFC. Tr. 33-39. The ALJ found
has the [RFC] to perform sedentary work as defined in [20
C.F.R. §§] 404.1567(a) and 416.967(a) except
[Plaintiff] is able to occasionally climb ramps and stairs,
but can never climb ladders, ropes[, ] and scaffolds.
[Plaintiff] is able to occasionally balance, stoop, crouch,
kneel[, ] and crawl and can frequently reach with bilateral
upper extremities. [Plaintiff] must avoid more than
occasional exposure to unprotected heights and dangerous
moving machinery and must avoid more than occasional exposure
to pulmonary irritants such as dust, fumes, odors[, ] and
gases. [Plaintiff] 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. [Plaintiff] is able to occasionally interact with
supervisors, co-workers[, ] and the public and is able to
maintain concentration, persistence[, ] and pace for two
hours at a time during the workday with normal breaks.
four, the ALJ found that Plaintiff was unable to perform any
past relevant work as an overnight stocker or material clerk.
Tr. 39-40. Accordingly, the ALJ went on to consider
Plaintiff's RFC, age, education, work experience, and the
testimony of the VE at step five. Tr. 40- 41. He found that
Plaintiff could perform work that exists in significant
numbers in the national economy and, therefore, was not
the ALJ issued his unfavorable decision on February 23, 2018,
Plaintiff obtained letters from two treating physicians dated
February 26 and April 2, 2018 (three days and 38 days after
the ALJ's decision, respectively) opining that Plaintiff
was, essentially, disabled. Tr. 8, 22. She provided these
letters and other evidence to the Appeals Council and asked
that the evidence be considered. Tr. 2. The Appeals Council
determined that the letters “[did] not show a
reasonable probability that [they] would [have] change[d] the
outcome of the [ALJ's] decision.” Id. The
Appeals Council did not exhibit any of the new ...