Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDRIA H.,1
Plaintiff,
v. 	2:24-cv-01191-KG-JMR
FRANK BISIGNANO,2 Commissioner
of the Social Security Administration,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on plaintiff Andria H.’s Opposed Motion to
Reverse and Remand to Agency. Doc. 16. The Commissioner filed a response. Doc. 22. Plaintiff
did not file a reply. See Doc. 23 (Notice of Briefing Complete). Pursuant to 28 U.S.C. §§
636(b)(1)(B) and (b)(3), Chief District Judge Kenneth J. Gonzales referred this matter to me for
a recommended disposition. Doc. 17. Having meticulously reviewed the record, read the
briefing, and being fully advised in the premises, I find that the Administrative Law Judge
(“ALJ”) did not commit legal error and that his decision was supported by substantial evidence. I
therefore recommend that the Court DENY Plaintiff’s motion and affirm the ALJ’s decision.
1 Due to sensitive personal and medical information contained in this opinion, the Court uses
only the Plaintiff’s first name and last initials. In so doing, the Court balances the Plaintiff’s
privacy interest in her personal medical information, United States v. Dillard, 795 F.3d 1191,
1205–06 (10th Cir. 2015), and the public’s interest in accessing the opinion, FED. R. CIV. P.
5.2(c)(2)(B).
2 Frank Bisignano became the Commissioner of the Social Security Administration on May 7,
2025, and is automatically substituted as the defendant in this action. FED. R. CIV. P. 25(d).
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I. 	Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision3 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 it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial 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
3 The 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. § 416.1481, as it is in this case.
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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)).
II. 	Applicable Law and Sequential Evaluation Process
To 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. § 416.905(a).
When considering a disability application, the Commissioner is required to use a five-
step sequential evaluation process. 20 C.F.R. § 416.920; 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 Listings4 of
presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past
relevant work.” 20 C.F.R. §§ 416.920(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.
4 20 C.F.R. pt. 404, subpt. P, app. 1.
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III. 	Background and Procedural History
Plaintiff was born in 1974, obtained two associate’s degrees, and previously worked as a
secretary for New Mexico State University. AR 50–51, 242.5 Plaintiff filed an application for
Supplemental Security Income (“SSI”) on September 30, 2021, alleging disability since August
17, 2021,6 due to diabetes; neuropathy in her feet, legs, arms, and hands; high blood pressure;
chronic back pain; atrial fibrillation; sciatic nerve pain in both legs; arthritis in both knees; and a
non-operable right shoulder. AR 242–47, 303. The Social Security Administration (“SSA”)
denied her claim initially on September 22, 2022. AR 140–44. The SSA then denied her claim on
reconsideration on July 10, 2023. AR 156–59. Plaintiff requested a hearing before an ALJ. AR
160. On March 7, 2024, ALJ Mark Swayze held a telephonic hearing. AR 40–71. ALJ Swayze
issued an unfavorable decision on May 15, 2024. AR 14–32.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since August 17, 2021. AR 19. At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: degenerative disc disease of the lumbar spine with L5 pars defect
and dextroconvex curvature, degenerative joint disease of the left knee status post ACL repair,
degenerative joint disease of the right shoulder with rotator cuff tear, obesity, coronary artery
disease, diabetes mellitus, peripheral neuropathy, and carpal tunnel syndrome. AR 20–22. At
step three, the ALJ found that none of Plaintiff’s impairments, alone or in combination, met or
medically equaled a Listing. AR 22–23. Because the ALJ found that none of the impairments
5 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.
6 Initially, Plaintiff alleged disability since August 1, 2015. But she later amended her alleged
onset date to her protective filing date of August 17, 2021. AR 47.
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met a Listing, the ALJ assessed Plaintiff’s RFC. AR 23–30. The ALJ found Plaintiff had the
RFC to
perform light work as defined in 20 CFR 416.967(b) except she can tolerate
occasional balancing, stooping, kneeling, crouching, crawling, and climbing
ramps/stairs; she can never climb ladders, ropes, or scaffolds; she can frequently
handle and occasionally reach in all directions with the right, dominant side.
AR 24.
At step four, the ALJ concluded that Plaintiff did not have any past relevant work. AR
30. The ALJ found Plaintiff not disabled at step five because she could perform jobs that exist in
significant numbers in the national economy—such as children’s attendant, usher, and furniture
rental clerk. AR 30–31.
On June 14, 2024, Plaintiff requested review of the ALJ’s unfavorable decision by the
Appeals Council. AR 7–10. On September 19, 2024, the Appeals Council denied the request for
review. AR 1–6. Plaintiff timely filed her appeal to this Court on November 25, 2024.7 Doc. 1.
IV. 	Plaintiff’s Claims
Plaintiff argues that the ALJ’s decision should be reversed and remanded for an
immediate award of benefits. Doc. 16 at 17–26. Specifically, Plaintiff argues that the ALJ “failed
to consider the required factors from SSR 16-3p when considering [Plaintiff’s] left knee pain,
and the evidence overwhelmingly showed that her left knee pain precluded the standing and
walking needed for light work.” Id. at 19–21. Plaintiff further argues that “[t]he evidence
overwhelmingly showed that [Plaintiff] suffered from an inoperable, massive rotator cuff tear of
the right shoulder with retraction that limited her right arm to less-than-occasional reaching in all
7 A claimant has 60 days to file an appeal. The 60 days begins running five days after the
decision is mailed. 20 C.F.R. § 416.1481; AR 2.
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directions.” Id. at 21–23. Finally, she argues that the “ALJ exaggerated [Plaintiff’s] activities of
daily living, and his findings are not supported by substantial evidence.” Id. at 23–25. Due to
these errors, Plaintiff requests that the Court “remand for an immediate award of benefits.” Id. at
25–26.
V. 	Discussion
Plaintiff argues that “[t]he ALJ violated SSR 16-3p when evaluating [Plaintiff’s]
symptoms and RFC, and the ALJ’s decision was not supported by substantial evidence.” Doc. 16
at 17. The Commissioner argues that “[t]he ALJ applied the correct legal standards in assessing
Plaintiff’s alleged disabling symptoms and substantial evidence in the record supports his
findings.” Doc. 22 at 3. For the reasons discussed below, I agree with the Commissioner.
When evaluating a claimant’s symptoms, the regulations require the ALJ to use the two-
step framework set forth in 20 C.F.R. § 416.929. First, the ALJ must determine whether
objective medical evidence presents a “medically determinable impairment” that could
reasonably be expected to produce the claimant’s alleged symptoms. 20 C.F.R. § 416.929(b).
Second, if the first step is met, the ALJ must assess the intensity and persistence of the alleged
symptoms to determine how they affect the claimant’s ability to work and whether the claimant
is disabled. 20 C.F.R. § 416.929(c). In assessing the intensity and persistency of a claimant’s
alleged symptoms, the ALJ must consider all the evidence in the record. SSR 16-3p, 2017 WL
5180304, at *7 (Oct. 25, 2017).8 This includes the objective medical evidence, statements from
8 Social Security Rulings are “binding on all components of the Social Security Administration.
These rulings represent precedent final opinions and orders and statements of policy and
interpretations that [the SSA has] adopted.” 20 C.F.R. § 402.35(b)(2).
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the claimant,9 medical source records (including a longitudinal record of any treatment and its
success or failure), and information from non-medical sources. Id. at *6–7.
The ALJ’s decision “must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as consistent with the
medical and other evidence.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The ALJ must
“explain which of an individual’s symptoms [the ALJ] found consistent or inconsistent with the
evidence in his or her record and how [the ALJ’s] evaluation of the individual’s symptoms led to
[the ALJ’s] conclusions.” SSR 16-3p, 2017 WL 5180304, at *8.
Finally, the ALJ must consider the following non-exhaustive list of factors when
analyzing a claimant’s symptoms:
(i) the claimant’s activities of daily living (“ADLs”);
(ii) the location, duration, frequency, and intensity of the claimant's pain and other
symptoms;
(iii) precipitating and aggravating factors, including psychological disorders;
(iv) the persistency of the claimant’s attempts to find relief for these symptoms;
(v) the regularity of the claimant's contact with medical professionals;
(vi) the type, dosage, effectiveness, and side effects of any medication that the
claimant takes or has taken to alleviate her symptoms;
(vii) treatment, other than medication, that the claimant receives or has received for
her symptoms;
(viii) the claimant's willingness to try prescribed treatment; and
(ix) any measures that the claimant uses or has used to relieve her pain or other
symptoms (e.g., use of crutches or cane, lying flat on her back, sleeping on a board,
etc.).
Martinez v. Kijakazi, No. 1:20-CV-00991-WJ-KRS, 2022 WL 214539, at *7 (D.N.M. Jan. 25,
2022) (citation omitted and formatting altered). These factors are often called the Luna factors.
9 Statements about symptoms made by a claimant include statements made directly to medical
sources, to other sources, and to the SSA. SSR 16-3p, 2017 WL 5180304, at *6.
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See Luna v. Bowen, 834 F.2d 161, 165–66 (10th Cir. 1987). SSR 16-3p requires the ALJ to
consider substantially similar factors. The SSR 16-3p factors are
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual
takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief
of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain
or other symptoms . . . ; and
7. 	Any 	other 	factors 	concerning 	an 	individual’s 	functional 	limitations 	and
restrictions due to pain or other symptoms.
SSR 16-3p, 2017 WL 5180304, at *7–8 (citing 20 C.F.R. § 416.929(c)(3)). The ALJ “will
discuss the factors pertinent to the evidence of record.” SSR 16-3p, 2017 WL 5180304, at *8.
However, “the ALJ need not make a ‘formalistic factor-by-factor recitation of the evidence,’ see
[Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012)], or address factors for which
‘there is no information in the evidence of record,’ see SSR 16-3P, 2016 WL 1119029, at *7.”
Martinez, 2022 WL 214539, at *4 (quotations omitted).
Here, the ALJ applied the two-step framework set forth in 20 C.F.R. § 416.929 and
interpreted by SSR 16-3p. See AR 23–24. The ALJ found that
the claimant’s medically determinable impairments could reasonably be expected
to cause some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record . . . .
AR 24. Plaintiff argues, however, that the ALJ erred when assessing Plaintiff’s left knee pain,
infra § V(A), right shoulder pain, infra § V(B), and her activities of daily living, infra § V(C). As
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discussed in the following three sections, I disagree. Thus, I recommend affirming the ALJ’s
decision and denying Plaintiff’s request for an immediate reward of benefits. Infra § V(D).
A. The ALJ did not err when considering Plaintiff’s left knee pain.
Plaintiff argues that “[t]he ALJ failed to consider the required factors from SSR 16-3p
when considering [Plaintiff’s] left knee pain, and the evidence overwhelmingly showed that her
left knee pain precluded the standing and walking needed for light work.” Doc. 16 at 19. The
Commissioner responds arguing that “[t]he ALJ applied the correct legal standards in assessing
Plaintiff’s alleged disabling symptoms and substantial evidence in the record supports his
findings.” Doc. 22 at 3.
Plaintiff has been in considerable left knee pain for years. See, e.g., AR 842–43 (May 28,
2020, surgery for an ACL tear); AR 555 (September 10, 2020, reporting “9/10” pain in left knee
post-surgery); AR 560 (October 7, 2020, reporting the same); AR 783 (February 22, 2021,
reporting “8/10” left knee pain); AR 757 (March 9, 2022, reporting “10/10” left knee pain); AR
1129 (February 13, 2023, “[l]eft knee pain unchanged”). During the March 7, 2024, ALJ hearing,
Plaintiff testified that “[w]alking and standing” made her knee pain worse. AR 58. When asked
“how far can you walk without stopping from pain or fatigue,” Plaintiff replied that she can only
walk the length of her extended cab pickup truck “without getting into a lot of pain.” AR 59. The
ALJ considered this testimony and the other record evidence and concluded that Plaintiff can
perform “light work.” AR 23. “[T]he full range of light work requires standing or walking, off
and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251,
at *6 (Jan. 1, 1983).
The ALJ’s decision that Plaintiff is able to perform “light work” despite her left knee
pain is supported by substantial evidence, and Plaintiff fails to show that the ALJ legally erred.
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The ALJ found that the “evidence does not support the degree of symptomology and functional
limitations alleged by the claimant.” AR 29. The ALJ provided a detailed, accurate survey of
Plaintiff’s medical records, including her left knee pain treatment. See AR 25–28. The ALJ
thoroughly discussed Plaintiff’s “moderate to severe degeneration” in her left knee. AR 28.
However, the ALJ explained that the medical records show “repeat findings of normal
gait/ambulation” with only one finding of an abnormal gait. Id. None of Plaintiff’s medical
providers indicate that Plaintiff is unable to stand or walk for extended periods of time. See
Brown v. Bowen, 801 F.2d 361, 362–63 (10th Cir. 1986) (“[D]isability requires more than mere
inability to work without pain. To be disabling, pain must be so severe, by itself or in
conjunction with other impairments, as to preclude any substantial gainful employment.”)
(quotations and citation omitted). The ALJ also pointed to Plaintiff’s “activities of daily living”
and the statements made by Plaintiff’s mother to support his assessment that Plaintiff can
perform light work. See id. The ALJ explains that Plaintiff
is capable of managing her personal care independently, albeit with some reported
difficulties. She is able to complete light household chores, shop for necessities,
and prepare simple meals. The record indicates she also is able to attend her medical
appointments without frequently missed appointments as well as generally follow
her prescribed medical treatment. This evidence is inconsistent with the claimant’s
statements with respect to the intensity, persistence and limiting effects of her
symptoms. The undersigned additionally notes far fewer limitations identified by
the claimant’s mother in her third party function report, noting no problems with
standing or walking in one report as compared to the claimant’s report of being able
to walk a mere 15 to 20 feet. While the claimant’s mother made clear that she had
limited knowledge of the claimant’s day to day functioning, this significant
disparity is noted and one factor considered in making this decision. The extent of
the standing/walking limitations alleged by the claimant is simply unsupported by
the overall record, such as mostly normal findings of gait, ambulation, strength, and
sensation as well as benefit from her medical treatment and largely intact activities
of daily living. (Ex. C1E; C6E; C15E-C16E; Testimony).
Id. Further, the ALJ found the State Disability Determination Service medical consultants’
opinions persuasive. AR 30; see also AR 111–32 (State Disability Determination Service
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medical consultants’ opinions). Both consultants assessed Plaintiff with an RFC that was
consistent with the ALJ’s RFC. Taken together, the ALJ cited evidence that a “reasonable mind
might accept as adequate to support [his] conclusion” that Plaintiff’s ability to walk is not as
limited as she testified. See Langley, 373 F.3d at 1118.
Plaintiff argues that the ALJ ignored required factors when considering Plaintiff’s left
knee pain. Specifically, Plaintiff argues that the ALJ ignored:
(1) [Plaintiff’s] persistent attempts to obtain relief from left knee pain and treatment
compliance demonstrated the severity of her symptoms, not the opposite; (2)
variation in [Plaintiff’s] symptoms [did] not necessarily indicate that they [were]
less severe; (3) the longitudinal record showed that [Plaintiff’s] left knee pain was
worsening, not improving; (4) she had failed conservative treatment; and (5) she
sought a second opinion for left knee surgical options.
Doc. 16 at 20. I disagree that the ALJ failed to consider any factors required by Luna or SSR 16-
3p. Indeed, the ALJ’s decision shows that “the ALJ considered all of the evidence.” See Clifton
v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996) (“The record must demonstrate that the ALJ
considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.”).
The ALJ did not ignore Plaintiff’s persistent attempts at pain relief or her longitudinal record of
worsening knee pain. In fact, the ALJ provided a lengthy, accurate description of Plaintiff’s
medical treatment related to her left knee including her persistent attempts at pain relief. See AR
25–28. The ALJ also provided a reasonable justification for why he disagreed with Plaintiff’s
degree of reported symptoms and functional limitations. Notably, he was not required to provide
a “factor-by-factor recitation of the evidence.” Martinez, 2022 WL 214539, at *4.
Plaintiff argues that the “the ALJ’s decision that [Plaintiff’s] treatment led to dramatic
improvement in her left knee pain is not supported by substantial evidence because undisputed
evidence showed that [Plaintiff] continued experiencing and complaining of severe left knee pain
after August 2022, when she noted improvement from the ablation.” Doc. 16 at 20. The ALJ
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accurately observed that Plaintiff underwent “radiofrequency ablation . . . with dramatic
improvement of her conditions.” AR 28; see also AR 1180 (Plaintiff, on August 17,
2022,“reports over 90% relief of left knee pain symptoms and she is able to walk without
limping.”). Of course, the medical records do indicate that Plaintiff’s left-knee pain did return.
See, e.g., AR 1314 (Plaintiff, on December 12, 2023, “still has chronic ongoing pain in her left
knee for which she is unable to take a reduced hydrocodone daily dose.”). However, contrary to
Plaintiff’s argument, the ALJ acknowledged that Plaintiff has continuing left knee pain. See AR
28 (noting that Plaintiff “remained on hydrocodone for [left knee] pain.”); Id. (explaining that
“imaging showed moderate to severe degeneration, and the claimant may pursue joint
replacement in the near future.”); AR 29 (noting that “treatment notes reveal reports of benefit
from her prescribed medications.”). Without pain, there would neither be a need for Plaintiff to
pursue surgery after she turns 50 nor would there be a need for continuing pain medication. The
ALJ adequately considered that Plaintiff’s left knee pain persisted after the ablation procedure.
The ALJ’s finding that Plaintiff’s left knee pain did not “support the degree of
symptomology and functional limitations alleged,” was also supported by substantial evidence.
AR 29. The ALJ supported his decision with much more than a “scintilla of evidence” and the
evidence is not “overwhelmed by other evidence in the record.” See Langley, 373 F.3d at 1118. I
find that the ALJ did not commit legal error by failing to consider the SSR 16-3p factors or the
Luna factors regarding Plaintiff’s left knee pain.
B. The ALJ did not err when considering Plaintiff’s right shoulder pain.
Plaintiff argues that “[t]he evidence overwhelmingly showed that [Plaintiff] suffered
from an inoperable, massive rotator cuff tear of the right shoulder with retraction that limited her
right arm to less-than-occasional reaching in all directions.” Doc. 16 at 21. In other words,
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Plaintiff argues the ALJ’s decision that Plaintiff can “occasionally reach in all directions,” as
opposed to less-than-occasional reaching, is not supported by substantial evidence. AR 23; see
also Langley, 373 F.3d at 1118 (A decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record. . . .”). The Commissioner disagrees with Plaintiff.
Doc. 22 at 3. I agree with the Commissioner.
Plaintiff has a persistent right rotator cuff tear. See AR 580 (September 7, 2021, MRI).
She was diagnosed with right shoulder impingement syndrome. AR 578. During the March 7,
2024, ALJ hearing, Plaintiff testified that, because of her right shoulder, she has trouble reaching
over her head with her right arm. AR 51. She testified that reaching towards the front “isn’t that
bad.” AR 52. But reaching to the side is “harder.” Id. She further described her difficulties
reaching. She explained:
[L]ike moving my arm out, it’s like it pulls everything up into my neck and
everything. So[,] like to reach over to a table, like if I’m sitting, and I have an end
table set next to my couch, and I reach over to grab something, it really, it’s hard.
So[,] I really have to turn my body and grab with my other hand to get it.
AR 52–53. This is the extent of Plaintiff’s testimony regarding reaching. However, she also
explains that her strength is severely limited by her right shoulder, and that her shoulder often
tenses up when performing certain tasks. AR 51–54. The ALJ found that Plaintiff had the RFC to
“frequently handle and occasionally reach in all directions with the right, dominant side,” but
that Plaintiff “can never climb ladders, ropes, or scaffolds.” AR 23. Occasional reaching means
“extending hand(s) and arm(s) in any direction” for “up to 1/3 of the time” while at a full-time
job. App. C, Physical Demands, SELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE
REVISED DICTIONARY OF OCCUPATIONAL TITLES .
The ALJ’s decision that Plaintiff can occasionally reach in all directions, as opposed to
less-than-occasional reaching, was supported by substantial evidence. And Plaintiff fails to show
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that the ALJ legally erred. The ALJ agreed that Plaintiff is limited in her ability to reach, but not
to the degree the Plaintiff alleges. Plaintiff testified that reaching in certain directions causes her
pain, but she did not testify to the degree of the pain. See Brown, 801 F.2d at 362–63. The ALJ
explained that Plaintiff “has declined other treatment options, such as additional physical
therapy, other pain medications, or surgery/injection of the right shoulder, suggesting that her
level of discomfort may not be severe.” AR 29. The ALJ particularly emphasized that Plaintiff
“declined surgical options or even injection therapy.” AR 28. The ALJ adds that “treatment notes
reveal reports of benefit from her prescribed medications. . . .” AR 29. The ALJ further
explained that “physical examinations . . . revealed relatively minor abnormalities.” Id. The ALJ
also found that “claimant’s activities of daily living further corroborate the residual functional
capacity,” pointing to Plaintiff’s ability to manage her personal care independently. Id. The ALJ
found the opinions of the State Disability Determination Service medical consultants persuasive.
The ALJ’s RFC is consistent with their opinions except that the ALJ “increased the postural and
manipulative limitations,” in Plaintiff’s favor. AR 30; see also AR 111–32 (State Disability
Determination Service medical consultants’ opinions). Taken together, the ALJ cited evidence
that a “reasonable mind might accept as adequate to support [his] conclusion” that Plaintiff is
capable of occasional reaching. See Langley, 373 F.3d at 1118.
Plaintiff argues that the ALJ “ignored several required factors” when considering
Plaintiff’s right shoulder pain. Doc. 16 at 22. Plaintiff argues that the ALJ ignored:
(1) [Plaintiff’s] persistent attempts to obtain relief from right shoulder pain and
treatment compliance demonstrated the severity of her symptoms, not the opposite;
(2) [Plaintiff’s] symptoms never improved despite several kinds of treatment; and
(3) the longitudinal record showed that [Plaintiff] failed conservative treatments,
leaving surgery as her only option.
Id. at 22–23. I disagree that the ALJ ignored factors that he was required to discuss under SSR
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16-3p or Luna. In fact, the ALJ’s decision demonstrates that “the ALJ considered all of the
evidence.” Clifton, 79 F.3d at 1009. The ALJ acknowledged Plaintiff’s “persistent attempts to
obtain relief from right shoulder pain,” the effectiveness of her medication, the longitudinal
record, and Plaintiff’s willingness to try prescribed medical treatment. See SSR 16-3p, 2017 WL
5180304, at *7–8; Martinez, 2022 WL 214539, at *7. The ALJ provided a detailed, accurate
survey of Plaintiff’s medical treatment history, including her right shoulder treatment. See AR
25–29. The ALJ acknowledged that Plaintiff continues to experience right shoulder pain.
However, he found that “her level of discomfort may not be severe,” given that she declined
right shoulder surgery, additional physical therapy, and additional injections. AR 29. The ALJ
was not required to provide a “factor-by-factor recitation of the evidence.” Martinez, 2022 WL
214539, at *4. Thus, the ALJ sufficiently demonstrated that he considered Plaintiff’s right
shoulder pain as required by SSR 16-3p and Luna.
Plaintiff points to three allegedly erroneous findings in the ALJ’s decision related
specifically to her right shoulder. Upon review, the ALJ did not err in any of the ways that
Plaintiff describes.
First, Plaintiff argues that “[c]ontrary to the ALJ’s erroneous decision, the record showed
that [Plaintiff] received several right shoulder injections, demonstrating the severity of her pain
(see, e.g., AR 1096-97).” Doc. 16 at 23. However, the ALJ accurately noted that Plaintiff had a
history of right shoulder injections. Indeed, the ALJ stated that Plaintiff “declined additional
injections” in her right shoulder, thereby acknowledging her previous injections. AR 26
(emphasis added). The ALJ also wrote about Plaintiff’s April 2023 injection in the right
shoulder. AR 27. The ALJ repeatedly discussed injections as a potential treatment option that
Plaintiff eventually declined. See also AR 767 (noting that Plaintiff “no longer wants
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injections”). The ALJ sufficiently acknowledged Plaintiff’s history of right shoulder injections.
Second, Plaintiff argues that “[c]ontrary to the ALJ’s erroneous decision, the record
showed . . . [Plaintiff] only left physical therapy to pursue her surgical options.” Doc. 16 at 23.
The ALJ accurately stated that Plaintiff stopped physical therapy for her right shoulder. See AR
29 (“The claimant has declined other treatment options, such as additional physical therapy. . .
.”). And the medical records do show that Plaintiff left physical therapy to pursue shoulder
surgery on September 15, 2021. AR 663. However, she was promptly evaluated for surgery on
October 4, 2021. AR 769. There, she was told that she was not a candidate for rotator cuff repair
surgery, and she was referred back to her orthopedist. Id. Plaintiff did not return for right
shoulder physical therapy after she was turned away from surgery in 2021. Therefore, it was
reasonable for the ALJ to mention Plaintiff’s discontinuation of physical therapy without also
discussing her alleged justification for stopping. See Clifton, 79 F.3d at 1009–10 (“The record
must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to
discuss every piece of evidence.”).
Third, Plaintiff complains that “[t]he ALJ’s reference to [Plaintiff’s] physician being
surprised by her range of motion is also erroneous because the ALJ ignored other important
findings such as pain with the range of motion, mild crepitus with glenohumeral rotation, and
‘moderate glenohumeral crepitus with a profound weakness and rotator cuff strength testing.’
(AR 587 (emphasis added).)” Doc. 16 at 23. The ALJ correctly noted that Plaintiff’s orthopedist
was “surprised” at her “largely intact range of motion” despite her rotator cuff tear. AR 28; see
also AR 587 (October 4, 2021, “Patient has surprisingly well-maintained range of motion but
does experience pain with end range of forward flexion”). Plaintiff complains that the ALJ
referred to this note while “ignor[ing] other important findings,” providing four examples of
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such. The findings Plaintiff points to all happen to be from a single medical appointment on
October 4, 2021. See AR 587 (“Patient has surprisingly well-maintained range of motion but
does experience pain with end range of forward flexion has pain with lateral abduction. Mild
crepitus with glenohumeral rotation . . . There is moderate glenohumeral crepitus with a
profound weakness and rotator cuff strength testing.”). Importantly, the ALJ was not required to
reference this particular medical appointment. See Clifton, 79 F.3d at 1009–10. Nonetheless, the
ALJ did cite to this particular appointment when discussing Plaintiff’s right arm strength, noting
that this appointment was an outlier in her medical records. See AR 28 (“There is one occasion
of slightly reduce[d] strength of the right arm with normal findings thereafter. (Ex. C3F, p. 39;
C16F).”).10 The ALJ went on to explain that “while there are rare occasions of more significant
findings, the majority of examination findings are benign.” AR 28. With regard to the remainder
of these “important findings,” the ALJ indisputably acknowledged that Plaintiff’s right shoulder
is seriously injured. See, e.g., AR 25–26 (discussing Plaintiff’s right shoulder rotator cuff tear,
impingement syndrome diagnosis, and related treatment). The ALJ also acknowledged that
medical records showed that Plaintiff had a limited range of motion. See, e.g., AR 27 (noting
Plaintiff’s “range of motion was intact other than above 100 degrees flexion”). The ALJ did not
emphasize Plaintiff’s right shoulder crepitus, or joint crackling, but Plaintiff does not explain
why crepitus is an “important finding.” As such, the ALJ did not fail to mention important
medical findings when discussing Plaintiff’s right shoulder.
Plaintiff failed to show that the ALJ legally erred when limiting Plaintiff to occasional
reaching. See Maes, 522 F.3d at 1096. Plaintiff also failed to show that the ALJ’s decision was
not supported by substantial evidence. See id.
10 “Ex. C3F, p.39” is AR 587.
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C. The ALJ did not err when considering Plaintiff’s activities of daily living.
Lastly, Plaintiff argues that the “ALJ exaggerated [Plaintiff’s] activities of daily living,
and his findings are not supported by substantial evidence.” Doc. 16 at 23. The Commissioner
responds by arguing that “Plaintiff ignores that the ALJ did not rely solely on her admitted
activities to find her symptoms not entirely consistent with the overall record but cited them as
one part of the symptom evaluation.” Doc. 22 at 6.
Regarding Plaintiff’s activities of daily living, the ALJ wrote:
The claimant’s activities of daily living further corroborate the residual functional
capacity. Despite her alleged impairments, the record indicates that the claimant is
capable of managing her personal care independently, albeit with some reported
difficulties. She is able to complete light household chores, shop for necessities,
and prepare simple meals. The record indicates she also is able to attend her medical
appointments without frequently missed appointments as well as generally follow
her prescribed medical treatment. This evidence is inconsistent with the claimant’s
statements with respect to the intensity, persistence and limiting effects of her
symptoms.
AR 29. The ALJ also discussed how Plaintiff’s mother’s third-party function report significantly
differed from Plaintiff’s reports of her own functioning. Id.
A review of the record shows that the ALJ did not “exaggerate” Plaintiff’s activities of
daily living. Notably, the ALJ’s description of Plaintiff’s activities of daily living is consistent
with Plaintiff’s own reports. Compare AR 24, 29 with AR 324–31 (Plaintiff’s Function Report,
dated October 26, 2021); 357–67 (Plaintiff’s Function Report, dated May 17, 2023).
Plaintiff argues that her “ability to mop and do laundry twice a week is no indication that
she can perform light work on a regular and continuing basis—i.e., eight hours a day, five days a
week.” Doc. 16 at 24. However, as the Commissioner argues, “the ALJ did not rely solely on her
admitted activities to find her symptoms not entirely consistent with the overall record but cited
them as one part of the symptom evaluation.” Doc. 22 at 6. The ALJ provided a reasoned
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discussion of Plaintiff’s activities of daily living in conjunction with the objective medical
evidence, Plaintiff’s mother’s reports, and the opinions of the State Disability Determination
Service medical consultants. See Bainbridge v. Colvin, 618 F. App’x 384, 388 (10th Cir. 2015)
(finding that the ALJ did not err when the ALJ used the activities of daily living of just “one part
of her adverse credibility finding”). The ALJ did not rely solely on Plaintiff’s activities of daily
living when assessing her RFC.
Plaintiff argues that “attending her treatment appointments speaks to the severity of [her]
symptoms, not the opposite.” Doc. 16 at 24. However, the ALJ never asserted that Plaintiff’s
ability to attend her medical appointments indicated that her symptoms were not severe. The ALJ
merely observed the fact, which is supported by the record, that Plaintiff “also is able to attend
her medical appointments without frequently missed appointments.” AR 29.
Finally, Plaintiff critiques the ALJ’s reliance on Plaintiff’s mother’s third-party function
reports. Doc. 16 at 24; see also AR 282–89 (Mother’s Third-party Function Report, dated August
28, 2021); 349–56 (Mother’s Third-party Function Report, dated May 16, 2023). Plaintiff
accurately explains that her “mother repeatedly wrote, ‘I don’t know,’ throughout the function
reports, sometimes followed by exclamation points.” Doc. 16 at 24. Plaintiff argues that her
mother “only saw her for a few hours at a time” and “was largely ignorant about [Plaintiff’s]
condition.” Id. However, the ALJ explicitly recognized this point. The ALJ acknowledged that
claimant’s mother “made clear that she had limited knowledge of the claimant’s day to day
functioning.” AR 29. For this reason, the ALJ stated that the mother’s functioning report was just
“one factor considered in making this decision.” Id. That said, the ALJ also reasonably observed
that there is a sizeable discrepancy with “claimant’s report of being able to walk a mere 15 to 20
feet” and her mother asserting that Plaintiff has “no problem walking or standing.” Id.; see also
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282 (Plaintiff’s mother reporting that she sees Plaintiff “2 to 3 times a month” on August 28,
2021); AR 349 (Plaintiff’s mother reporting that she sees Plaintiff for a “couple of hours every
other month” on May 16, 2023). The ALJ reasonably justified using claimant’s mother’s third-
party function report as one factor in assessing Plaintiff’s RFC.
The ALJ did not exaggerate Plaintiff’s activities of daily living. Therefore, Plaintiff has
not shown that the ALJ’s findings, based in part on Plaintiff’s activities of daily living, were not
supported by substantial evidence. See Maes, 522 F.3d at 1096.
D. The Court should affirm the ALJ’s decision and deny Plaintiff’s request for an
immediate award of benefits.
As discussed in the preceding sections, Plaintiff failed to show that the ALJ legally erred
or failed to support his decision with substantial evidence. See Maes, 522 F.3d at 1096.
Therefore, I recommend that the Court affirm the ALJ’s decision.
Plaintiff also requests that the Court “reverse and remand for an immediate award of
benefits.” Doc. 16 at 25–26. The Commissioner opposes an immediate award of benefits. Doc.
22 at 9–10. “When a decision of the Secretary is reversed on appeal, it is within this court’s
discretion to remand either for further administrative proceedings or for an immediate award of
benefits.” Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). Because I recommend
affirming the ALJ’s denial of Plaintiff’s SSI application, an immediate award of benefits is not
warranted. See Morris v. O’Malley, No. 1:22-CV-00318-LF, 2023 WL 8827730, at *10 (D.N.M.
Dec. 21, 2023) (holding the same).
VI. 	Recommendation
I recommend that the Court find that Plaintiff failed to show that the ALJ’s decision was
not supported by substantial evidence or that the ALJ legally erred. See Maes, 522 F.3d at 1096.
As such, I recommend that the Court affirm the ALJ’s denial of Plaintiff’s application for SSI
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benefits. I also recommend that the Court deny Plaintiff’s request for an immediate award of
benefits.
Based on these recommendations, I finally recommend that the Court DENY Plaintiff’s
Opposed Motion to Reverse and Remand to Agency. Doc. 16.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written
objections must be both timely and specific. United States v. One Parcel of Real Prop., With
Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the
Clerk of the District Court within the fourteen-day period if that party wants to have
appellate review of the proposed findings and recommended disposition. Failure to file
timely and specific objections will result in waiver of de novo review by a district or
appellate court. Id. In other words, if no objections are filed, no appellate review will be
allowed.
________________________________
JENNIFER M. ROZZONI
United States Magistrate Judge
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