Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JENNIFER L. E.,
Plaintiff,
v. 	CIV No. 1:24-cv-01015-KRS
FRANK BISIGNANO,
Commissioner of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Plaintiff Jennifer L. E.’s (“Plaintiff”) Opposed
Motion to Reverse and Remand to Agency (“Motion”), (Doc. 13), dated February 3, 2025,
challenging the determination of the Commissioner of the Social Security Administration (“SSA”)
that Plaintiff is not entitled to supplemental security income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383. The Commissioner responded to Plaintiff’s Motion on
March 26, 2025, (Doc. 19), and Plaintiff filed a reply on April 9, 2025, (Doc. 20). Plaintiff
subsequently filed a Notice of Completion of Briefing. (Doc. 21). With the consent of the parties
to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c); F ED. R. CIV. P. 73(b),
the Court has considered the parties’ filings and has meticulously reviewed the administrative
record. Having done so, the Court concludes that the Administrative Law Judge (“ALJ”) erred in
his decision and will therefore GRANT Plaintiff’s Motion and remand this case back to the SSA
for proceedings consistent with this opinion.
I. 	PROCEDURAL POSTURE
On January 29, 2021, Plaintiff filed an initial application for SSI with an alleged onset date
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of January 1, 2018, at 34 years of age. (See Administrative Record (“AR”) at 61).1 Plaintiff alleged
she was disabled due to “[o]steoarthrosis and [a]llied [d]isorders,” lumbar spinal stenosis, bulging
disc, and degenerative disc disorder. (Id. at 61-62, 71). In Plaintiff’s May 25, 2021, Adult Function
Report, she reported that she could not stand or sit for an extended amount of time, bend over
without being in pain, nor could she lift anything “heavy.” (Id. at 218). She further reported that
her conditions affected her ability to lift, squat, bend, stand, walk, sit, kneel, climb stairs,
remember, and complete tasks. (Id. at 223).
Plaintiff’s application was denied at the initial level on September 10, 2021, (id. at 62-69,
89-93), and upon reconsideration on February 28, 2023, (id. at 70-85, 98-102). Plaintiff requested
a hearing on April 25, 2023, (id. at 108), which ALJ Christopher Hunt (“ALJ Hunt” or the “ALJ”)
conducted on November 16, 2023, (id. at 10, 36-60, 158). Plaintiff was represented by counsel and
testified at the hearing (id. at 40-48), as did Vocational Expert Marsha Storozyszyn (“VE”) (id. at
48-59). On January 29, 2024, the ALJ issued an unfavorable decision. (AR 7-24). On August 2,
2024, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the
Commissioner’s final decision. (Id. 1–3). On October 7, 2024, Plaintiff filed her Complaint in this
case seeking review of the Commissioner’s decision. (Doc. 1).
II. 	LEGAL STANDARDS
A. 	Standard of Review
Judicial review of the Commissioner’s decision is limited to determining “whether
substantial evidence supports the factual findings and whether the ALJ applied the correct legal
standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (citing Lax v. Astrue, 489 F.3d
1 Document 8 is the sealed Administrative Record (“AR”). When citing to the record, the Court cites to the AR’s
internal pagination in the lower right-hand corner of each page, rather than to the CM/ECF document number and
page.
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1080, 1084 (10th Cir. 2007)); see also 42 U.S.C. § 405(g). If substantial evidence supports the
ALJ’s findings and the correct legal standards were applied, the Commissioner’s decision stands,
and the plaintiff is not entitled to relief. See, e.g., Langley v. Barnhart, 373 F.3d 1116, 1118 (10th
Cir. 2004). Although a court must meticulously review the entire record, it “may neither reweigh
the evidence nor substitute [its] judgment for that of the [Commissioner].” See, e.g., id. (quotation
omitted).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation
omitted); Langley, 373 F.3d at 1118 (quotation omitted). Although this threshold is “not high,”
evidence is not substantial if it is “a mere scintilla,” Biestek, 139 S. Ct. at 1154 (quotation omitted);
“if it is overwhelmed by other evidence in the record[,]” Langley, 373 F.3d at 1118 (quotation
omitted); or if it “constitutes mere conclusion[,]” Grogan v. Barnhart, 399 F.3d 1257, 1261–62
(10th Cir. 2005) (quotation omitted). Thus, the Court must examine the record as a whole,
“including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” (Id. at 1262 (citation omitted)). While an ALJ need not discuss
every piece of evidence, “[t]he record must demonstrate that the ALJ considered all of the
evidence,” Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996) (citation omitted), and “a
minimal level of articulation of the ALJ’s assessment of the evidence is required in cases in which
considerable evidence is presented to counter the agency’s position.” (Id. at 1010 (quotation
omitted)). “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.” Byron
v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (quotation and citation omitted).
B. 	Disability Framework
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“Disability,” as defined by the Social Security Act, is the inability “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 twelve months.” 42 U.S.C. § 423(d)(1)(A). The SSA devised a
five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S.
20, 24 (2003); Wall v. Astrue, 561 F.3d 1048, 1051–52 (10th Cir. 2009); 20 C.F.R. § 404.1520. If
a finding of disability or non-disability is directed at any point, the Commissioner will not proceed
through the remaining steps. Thomas, 540 U.S. at 24; 20 C.F.R. § 404.1520(a)(4).
At the first four steps of the analysis, the claimant has the burden to show: (1) she is not
engaged in “substantial gainful activity”; (2) she has “a severe medically determinable physical or
mental impairment . . . or a combination of impairments” that has lasted or is expected to last for
at least one year; and that either (3) her impairment(s) meets or equals one of the “Listings” of
presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” Id.
§ 404.1520(a)(4)(i–iv) (citing id. § 404.1509); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th
Cir. 2005).
Step four of this analysis consists of three phases. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996). First, the ALJ determines the claimant’s residual functional capacity (“RFC”)
“based on all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). A
claimant’s RFC is “the most [she] can still do despite [physical and mental] limitations.” Id. §
404.1545(a)(1). Second, the ALJ “determine[s] the physical and mental demands of the claimant’s
past relevant work.” Winfrey, 92 F.3d at 1023. “To make the necessary findings, the ALJ must
obtain adequate ‘factual information about those work demands which have a bearing on the
medically established limitations.’” Id. at 1024 (quoting Social Security Ruling (SSR) 82-62, 1982
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WL 31386, at *3 (Jan. 1, 1982)). Third, the ALJ determines whether, in light of the RFC, the
claimant is capable of meeting those demands. Id. at 1023, 1025.
The claimant must prove that, based on her RFC, she is unable to perform the work she has
done in the past. See Thomas, 540 U.S. at 25. If the claimant meets “the burden of establishing a
prima facie case of disability[,] . . . the burden of proof shifts to the Commissioner at step five to
show that” the claimant retains sufficient RFC “to perform work in the national economy, given
his age, education and work experience.” Grogan, 399 F.3d at 1261 (citation omitted); see also
Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988) (discussing the five-step sequential
evaluation process in detail).
III. 	THE ALJ’S DETERMINATION
On January 29, 2024, ALJ Hunt issued a decision denying Plaintiff’s application for SSI.
(AR 7-28). In denying Plaintiff’s application, the ALJ applied the five-step sequential analysis.
(Id. at 11-24). First, ALJ Hunt found that Plaintiff had not engaged in substantial gainful activity
since her alleged onset date of January 29, 2021. (Id. at 12). The ALJ then found at step two that
Plaintiff suffered from the following severe impairments: “obesity; degenerative disc disease of
the lumbar spine, status post two lumbar surgeries; and degenerative disc disease of the cervical
spine.” (Id.). ALJ Hunt further found that Plaintiff had the following non-severe impairments:
“major depressive disorder and generalized anxiety disorder.” (Id. at 13). The ALJ did not address
whether he found any physical impairments to be non-severe. (See generally id. at 7-28). At step
three, ALJ Hunt concluded that Plaintiff did “not have an impairment or combination of
impairments that” met the criteria of listed impairments under Appendix 1 of the SSA’s
regulations. (Id. at 1483).
Moving to the next step, the ALJ reviewed the evidence of record, including medical
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opinions and evidence from treating and consulting providers, prior administrative medical
findings, and Plaintiff’s own subjective symptom evidence. (Id. at 16-22). Having done so, the
ALJ concluded that for the relevant period, Plaintiff possessed an RFC:
to perform light work as defined in 20 CFR 416.967(a) except as follows: [she] can
lift no more than 20 pounds occasionally and 10 pounds frequently. [She] is able to
sit for 6 hours in an eight-hour day and stand and/or walk for 3 hours in an eight-
hour day. She can occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl. She should not climb ladders, ropes, or scaffolds or be exposed
to unprotected heights.
(Id. at 16).
In determining the RFC, the ALJ considered Plaintiff’s testimony regarding her symptoms,
including “back and neck pain when bending over, standing, or moving” and her pain management
for two back surgeries. (Id. at 17). Plaintiff further testified that she could sit or stand for about 15
to 30 minutes before incurring pain. (Id.) The ALJ’s decision does not discuss Plaintiff’s Function
Reports, in which Plaintiff described limitations in her ability to perform daily activities. The ALJ
determined that Plaintiff’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms,” but Plaintiff’s statements regarding “the intensity, persistence, and
limiting effects of [the] symptoms are not entirely consistent with the medical evidence and other
evidence in the record . . . .” (Id.)
The ALJ then discussed each of the severe impairments determined in step two and their
impact on the ALJ’s RFC finding, as well as the opinions of State Agency physicians, Randal
Reid, M.D. (“Dr. Reid”), from the initial opinion, and Jeffrey Wheeler, M.D. (“Dr. Wheeler”), on
reconsideration, as well as Plaintiff’s treating pain management physician Mark Grossetete, M.D.
(“Dr. Grossetete”), surgeon Urvij Modhia, M.D., pain management physician James Gonzales,
M.D. (“Dr. Gonzales”), and Erika Garcia, M.D. (“Dr. Garcia”). (Id. at 17-22). ALJ Hunt noted
Plaintiff’s “complaints of back pain” which were confirmed by medical imaging and subsequent
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lumbar surgeries. (Id.) ALJ Hunt concluded that based on the evidence of degenerative disc disease
of the cervical and lumbar spine, Plaintiff was limited to standing and/or walking three hours in an
eight-hour day. (Id. at 20). Moreover, her “symptoms of pain” supported the finding that she could
occasionally climb ramps and stairs. (Id.) The ALJ also found Dr. Reid’s opinion not persuasive
because the medical record supported greater exertional and postural limitations. (Id. at 21). He
further determined Dr. Wheeler’s opinion was generally persuasive with respect to exertional and
postural limitations, and some environmental limitations. (Id. at 22).
Next, the ALJ found Plaintiff did not have past relevant work. (Id. at 22). At step five, the
ALJ asked the VE if any occupations exist which could be performed by an individual with the
same “age, education, work experience, and [RFC]” as Plaintiff. (Id.) The VE testified that,
considering those factors, an individual could perform the requirements of document preparer,
addresser, surveillance system monitor, or customer service representative. (Id. at 22-23). The VE
further testified that only the jobs of surveillance system monitor and customer service
representative would remain if an individual’s RFC “required a sit and stand option . . . every 30
minutes but remain on task.” (Id. at 22). The ALJ then determined that there are other jobs that
exist in significant numbers in the national economy that Plaintiff could perform. (Id. at 24).
Accordingly, Plaintiff was deemed not disabled at any time since she filed her SSI application on
January 29, 2021. (Id.)
The ALJ’s decision at no point discusses chronic pain syndrome (“CPS”) and the limiting
effects identified by Plaintiff or her treating physicians Dr. Grossetete, Dr. Gonzales, and Mary
Kenyon, CNP. However, in his decision, ALJ Hunt makes a singular notation that Dr. Grossetete
diagnosed Plaintiff with “chronic pain” on February 11, 2021. (Id. at 18). The decision also
discusses intermittently the pain that Plaintiff reported experiencing associated with the severe
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impairments. The decision also noted Plaintiff’s “pain” in particular, states that it is associated
with cervical and lumbar degenerative disc disease, and states a portion of Plaintiff’s RFC
limitations are due, in part, to the “symptoms of pain” she experiences. (Id. at 20) (“Further,
symptoms of pain and reduced range of motion support that the claimant can occasionally climb
ramps and stairs. . . . Due to back and neck pain, the claimant is limited to occasional stooping,
kneeling, crouching, and crawling as well.”)
IV. 	DISCUSSION
Plaintiff asserts that ALJ Hunt failed to evaluate her medically determinable impairment
of CPS, and the effects of this impairment, when assessing her RFC. Second, the ALJ failed to
consider certain testimony, medical evidence, and medical opinions in formulating Plaintiff’s RFC
as it pertained to CPS. The Court begins by considering Plaintiff’s first argument to determine
whether reversible error occurred at any step of the analysis due to the ALJ’s alleged failure to
evaluate Plaintiff’s CPS or its effects.
A. 	Step Two Consideration of Plaintiff’s CPS
At step two of the review process, an ALJ must determine whether a claimant has a severe
medically determinable physical or mental impairment or combination of impairments that is
severe. 	Allman 	v. 	Colvin, 	813 	F.3d 	1326, 	1330 	(10th 	Cir. 	2016) 	(citing 	20 	C.F.R. 	§
404.1520(a)(4)(ii)). If the ALJ finds that a claimant has no severe impairment, he will find that the
claimant is not disabled and deny benefits. Id. But if the ALJ finds at least one severe impairment,
he must proceed to step three analysis. Id. Therefore, “the failure to find a particular impairment
severe at step two is not reversible error when the ALJ finds that at least one other impairment is
severe.” Id.
Plaintiff argues that the ALJ’s decision contains legal error at step two of the review
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process because the ALJ failed to consider: (1) whether Plaintiff’s diagnosed CPS was a severe or
non-severe medical impairment. In response, Defendant argues that there is no reversable error
because the ALJ concluded Plaintiff had one severe physical impairment.
Here, the ALJ determined at step two that Plaintiff had severe impairments of obesity,
degenerative disc disease of the lumbar spine, status post two lumbar surgeries, and degenerative
disc disease of the cervical spine. Accordingly, because the ALJ found that Plaintiff had at least
one severe medically determinable physical impairment and therefore proceeded to step three, it
is not reversible error that the ALJ failed to discuss Plaintiff’s CPS. The Court must then determine
if the ALJ properly formulated Plaintiff’s RFC.
B. 	Consideration of Plaintiff’s CPS in Formulating RFC
Plaintiff next argues that the ALJ committed reversible legal error when he failed to
consider her CPS while formulating the RFC. (Doc. 13 at 13-15). Specifically, Plaintiff argues that
considering CPS as its own impairment might have changed the ALJ’s perception of Plaintiff’s
statements about the intensity, persistence, and limiting effects of her pain on her daily activities
and/or the RFC determination. (Id.)
After determining that a claimant has a severe medically determinable impairment or
combination of impairments at step two, and subsequently determining that the claimant does not
have an impairment or combination of impairments that meets or medically equals the severity of
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 at step three, the ALJ must
determine the claimant’s physical and mental RFC. A claimant’s RFC “is the most [she] can do
despite [her] limitations,” and “is based on all the relevant evidence, including a claimant’s
credible allegations of pain.” Rivera v. Comm’r, Soc. Sec. Admin., No. 22-1026, 2022 U.S. App.
LEXIS 33008, 2022 WL 17333068, at *5 (10th Cir. Nov. 30, 2022) (citing 20 C.F.R. §§ 404.1545,
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404.1529). The ALJ must consider both severe and non-severe impairments in formulating the
RFC. Holgersen v. Comm’r, Soc. Sec. Admin., No. 20-CV-00668-MSK, 2021 U.S. Dist. LEXIS
128945, 2021 WL 2910655, at *5 (D. Colo. July 12, 2021). The assessment “must include a
narrative discussion describing how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). When
evaluating a claimant’s symptoms, including pain,
[t]here must be objective medical evidence . . . that shows you have a medical
impairment(s) which could reasonably be expected to produce the pain or other
symptoms alleged and that, when considered with all of the other evidence
(including statements about the intensity and persistence of your pain or other
symptoms which may reasonably be accepted as consistent with the medical signs
and laboratory findings), would lead to a conclusion that you are disabled.
20 C.F.R. § 404.1529(a).
Here, the ALJ’s decision discusses Plaintiff’s reported pain, references a single diagnosis
of CPS, and cites “pain” as a partial basis for some of the RFC limitations. Defendant argues the
ALJ’s references to “pain” demonstrates that the ALJ considered all of Plaintiff’s pain symptoms
when determining her RFC. (Doc. 19 at 13-14). Defendant also argues that the ALJ properly
assessed Plaintiff’s limitations and not simply her diagnoses, such as CPS. (Id. at 10). Simply put,
Defendant contends all of Plaintiff’s pain symptoms caused by CPS were accounted for when
analyzing Plaintiff’s cervical and lumbar spine degenerative disc disease diagnoses. Under this
contention, the ALJ fully accounted for the functional consequences of CPS—as required—even
though it was not addressed.
The Court rejects Defendant’s argument that Plaintiff’s CPS was adequately considered.
While the ALJ clearly considered at least some of Plaintiff’s “pain” and/or “chronic pain” when
formulating the RFC, “consideration of a diagnosis is not the same as consideration of a symptom.”
See 20 C.F.R. § 404.1529(a). As Plaintiff notes, CPS is more than just the chronic pain caused by
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an initial injury. (Doc. 13 at 13-14). CPS is itself “capable of producing disabling pain.” Bakalarski
v. Apfel, No. 97-1107, 1997 U.S. App. LEXIS 34055, at * 6, 1997 WL 748653, at *2 (10th Cir.
Dec. 3, 1997). Beyond this, CPS has both physical and psychological components that are not
neatly separable, in which “[p]ain merges into and becomes a part of the mental and psychological
responses that produce functional impairments.” Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995).
Thus, had Plaintiff’s CPS been considered its own impairment, the ALJ might reasonably have
altered his perception of Plaintiff’s physical and mental limitations when formulating the RFC.
See Martinez v. Kijakazi, No. 1:20-cv-00991-WJ-KRS, 2022 U.S. Dist. LEXIS 14140, 2022 WL
214539 (D.N.M. Jan. 25, 2022) (report and recommendation) (where ALJ considered subjective
symptom evidence of the plaintiff’s chronic pain, but failed to discuss claimant’s chronic pain
syndrome anywhere in the decision, the court “cannot say that the ALJ properly evaluated
[p]laintiff’s chronic pain condition as one ‘that could reasonably be expected to produce’ the
associated pain that she alleges as required under SSA policy”). Howard v. Berryhill, No. 17-cv-
00276-RBJ, 2017 U.S. Dist. LEXIS 190175, 2017 WL 5507961, at *6 n.4 (D. Colo. Nov. 17,
2017) (declining to interpret “passing references to ‘pain’“ in the ALJ decision “as the ALJ’s
consideration of [plaintiff’s] chronic pain syndrome”); Scates v. Astrue, 2012 U.S. Dist. LEXIS
183505, 2012 WL 13080131, *5 (D.N.M. 2012) (ALJ failed to properly consider diagnoses of
somatoform disorder and pain disorder in formulating plaintiff’s RFC); Sotelo v. Astrue, 2011 WL
13289791, *6 (D.N.M. 2011) (remanding for the ALJ’s failure to explain why he did not consider
the effect of plaintiff’s diagnosis of somatoform disorder and chronic pain syndrome when
assessing plaintiff’s credibility).
The ALJ’s lack of discussion as to Plaintiff’s diagnosed CPS leaves the Court unable to
determine whether or how its physical and mental aspects were actually considered, as required
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by the regulations. See Clifton, 79 F.3d at 1010 (“[I]n addition to discussing the evidence
supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to
rely upon[.]”). Therefore, the Court finds that the ALJ committed legal error.
If Plaintiff’s CPS were fully considered as its own impairment when formulating the RFC,
a reasonable fact finder could have determined that greater physical or mental limitations were
appropriate, potentially leading to a finding that there are not a significant number of jobs in the
national economy which the Plaintiff can perform. See 20 C.F.R. §§ 404.1566, 416.966.
Accordingly, the Court finds that this legal error is not harmless, and that the ALJ’s decision must
be reversed and remanded.
C. 	Remaining Issues
Because Plaintiff’s CPS may impact the other determinations at issue in this proceeding,
the Court will remand on this basis without addressing Plaintiff’s remaining claims of error. See
Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (reversing and remanding after
concluding the ALJ did not apply the correct legal standards and declining to consider remaining
issues raised by the claimant “because they may be affected by the ALJ’s treatment of this case on
remand”). The Court encourages the parties, the ALJ, and the Commissioner on remand to consider
fully and anew the evidence and all issues raised. See Kepler v. Chater, 68 F.3d 387, 391-392 (10th
Cir. 1995) (“We do not dictate any result [by remanding the case]. Our remand simply assures that
the correct legal standards are invoked in reaching a decision based on the facts of the case.”)
(citation and quotation marks omitted).
V. 	CONCLUSION
For the reasons set forth above, Plaintiff’s Opposed Motion to Reverse and Remand to
Agency, (Doc. 13), is GRANTED, and this matter is REMANDED for further proceedings
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consistent with this decision.
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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