United States District Court, D. Colorado
ORDER VACATING DECISION OF ADMINISTRATIVE LAW
William J. Martínez United States District Judge.
a Social Security Benefits appeal brought under 42 U.S.C.
§ 405(g). Plaintiff Deserie Abad (“Abad”)
challenges the final decision of Defendant, the Commissioner
of Social Security (“Commissioner”), denying her
application for disability insurance benefits. The denial was
affirmed by an administrative law judge (“ALJ”),
who ruled that Abad was not disabled within the meaning of
the Social Security Act. This appeal followed.
reasons set forth below, the ALJ's decision denying
Abad's application for disability insurance benefits is
VACATED and this case is REMANDED for further proceedings
consistent with this order.
was born on May 25, 1960, and was 51 years old on the alleged
onset date of October 1, 2011. (Administrative Record
(“R.”) (ECF No. 13) at 137.) Abad completed ninth
grade and worked as a restaurant server from January 1985
until October 2011. (R. at 282.)
applied for disability insurance benefits on November 27,
2012, with a protective filing date of November 20, 2012. (R.
at 244, 277.) Abad claimed that she is disabled due to the
following conditions: back and chronic pain, back injury,
arthritis, depression, insomnia, and learning disability. (R.
at 281.) Her application was denied on June 6, 2013. (R. at
146.) Abad requested and received two hearings in front of an
ALJ, Lowell Fortune. (R. at 80.) On September 25, 2014, the
ALJ issued a written decision in accordance with the
Commissioner's five-step sequential evaluation process.
(R. at 60.)
one, the ALJ found that Abad had not engaged in substantial
gainful activity since May 17, 2012. (R. at 26.)
two, the ALJ found that Abad suffered from the following
impairments: fibromyalgia, chronic pain syndrome, lumbar
spine disorder, insomnia disorder, learning disorder, anxiety
disorder, obesity, and cervical spine disorder. (R. at 62.)
The ALJ found each of the above impairments to be medically
determinable and severe. (R. at 63.) The ALJ noted that
Abad's record “contains references to sleep
apnea” but concluded that this condition is not
medically determinable and “even if it were, it is a
non-severe impairment.” (R. at 63.)
three, the ALJ found that Abad's impairments, while
severe, did not meet or medically equal any of the
impairments listed in the Social Security regulations. (R. at
proceeding to step four, the ALJ assessed Abad's residual
functional capacity (“RFC”). The ALJ concluded
that Abad has the RFC to perform “light” work as
defined by the regulations, except as follows:
The claimant is able to lift 20 pounds occasionally and 10
pounds frequently. During an 8-hour workday, the claimant is
able to stand and/or walk 6 hours and sit 6 hours. The
claimant is unable to climb ladders, scaffolds, and ropes.
The claimant is able to reach overhead frequently with the
bilateral upper extremities. The claimant should avoid
unprotected heights and dangerous machinery. The claimant is
able to understand, remember, and carry out moderately
detailed instructions. The claimant should not perform any
assembly-line work (because of limitations in persistence,
pace, and stress). The claimant cannot engage in work
requiring intense, sustained concentration. The claimant
should not perform any work above the following GED levels:
reasoning, 3; math, 2; and language, 3.
four the ALJ found that Abad was capable of performing past
relevant work as a “waitress and bartender.” (R.
at 73.) Therefore, the ALJ did not proceed to step five.
the ALJ found that Abad was not entitled to disability
insurance benefits. (R. at 74.) Abad appealed to the Social
Security Appeals Council (R. at 51), which denied review (R.
at 1). Abad then timely filed this action seeking review of
the ALJ's September 25, 2014 decision. (ECF No. 1.)
STANDARD OF REVIEW
Court reviews the Commissioner's decision to determine
whether substantial evidence in the record as a whole
supports the factual findings and whether the correct legal
standards were applied. Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009). Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It
requires more than a scintilla, but less than a
preponderance.” Lax, 489 F.3d at 1084.
Evidence is not substantial if it is overwhelmed by other
evidence in the record. Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In reviewing the
Commissioner's decision, the Court may neither reweigh
the evidence nor substitute its judgment for that of the
agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006). “On the other hand, if the ALJ failed to
apply the correct legal test, there is a ground for reversal
apart from a lack of substantial evidence.”
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.
argues that the ALJ erred in: (1) not calling a medical
expert to opine on the issue of medical equivalence to the
Listings; (2) not properly evaluating and weighing the
medical opinion evidence of Abad's treating physician;
and (3) not basing his credibility finding in substantial
evidence. Abad also raises a fourth issue on appeal, arguing
that the Appeals Council erred in failing to reverse and
remand the claim to the ALJ in light of the new and material
evidence with which it was presented. The Court will address
each of Abad's arguments in turn.
Expert Opinion on Medical Equivalence
argues that the ALJ “failed to analyze Abad's
fibromyalgia as required by Social Security Ruling
[‘SSR'] 12-2p” and failed to consult a state
agency medical expert to opine on the issue of medical
equivalence of this impairment to the Listings, pursuant to
SSR 96-6p. (ECF No. 16 at 17.) Abad contends that her phy
sical impairments were evaluated only by a psychologist,
Gayle Frommelt, Ph.D., and that “a psychologist is not
a medical doctor.” (Id. at 18.) Abad concludes
that “there is, therefore, no assessment of medical
equivalence by a medical doctor ...