Salazar v. Kijakazi

• Decision Date: 21 September 2022
• Docket Number: Civ. 21-149 KK
• Parties: JACQUELINE SALAZAR, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of New Mexico

JACQUELINE SALAZAR, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

Civ. No. 21-149 KK

United States District Court, D. New Mexico

September 21, 2022

MEMORANDUM OPINION AND ORDER ^[1]

KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Plaintiff Jacqueline Salazar's Opposed Motion to Reverse and/or Remand, filed November 3, 2021. (Doc. 23.) On February 22, 2022, the Acting Commissioner of the Social Security Administration (“Commissioner”) filed a response, and on March 18, 2022, Ms. Salazar filed a reply. (Docs. 29, 30.) Having meticulously reviewed the entire record and the relevant law being otherwise sufficiently advised, and for the reasons set forth below, the Court finds that Ms. Salazar's Motion is well-taken and should be GRANTED.

I. Background and Procedural History

Ms Salazar filed this action under 42 U.S.C. § 405(g), seeking reversal of the Commissioner's decision denying her claims for disability insurance benefits (“DIB”) under Title II of the Social Security Act. (Doc. 23 at 1.) Ms. Salazar, age 51, suffers from migraine headaches, post-traumatic stress disorder (“PTSD”), depression, and left hearing loss. (AR 15.)^[2] Her migraines began in about 2006, and she testified that she typically has “[a]nywhere between 15 and 20” of them each month. (AR 47, 990.) According to Ms. Salazar, her migraines last “[a]bout half the day” and cause pain, dizziness, nausea, vomiting, and sensitivity to light and sound, and the following day she is exhausted and cannot function. (AR 46-47, 51, 54, 316.) She testified that when she feels a migraine starting, she takes Zofran for nausea, which makes her drowsy, and Excedrin migraine for pain. (AR 52-53.) According to Ms. Salazar, her migraines have many triggers, including certain foods, certain odors, sunlight, bright or fluorescent indoor lights, and sitting in a certain position for too long. (AR 45, 52, 55.)

Ms. Salazar has also been diagnosed with PTSD stemming from an automobile accident and domestic violence. (AR 781-82, 972.) She reported nightmares, startle response, social isolation, intrusive thoughts, and avoidant behaviors, (AR 781), and testified that interactions with “really rude, really mean, really aggressive” customers trigger “a lot of the memories of the abuse.” (AR 49.) In addition, she takes medication for depression. (AR 49; see, e.g., AR 385, 441, 448, 962.)

Ms. Salazar worked as a medical assistant for about 14 years until November 21, 2018, “but she had to miss a lot of work because of her migraines and therefore could not keep a job.” (AR 199, 249, 778, 990.) On February 8, 2019, she began working part-time as a restaurant hostess, where she missed work “maybe three to seven times a month” due to migraines, worked fewer hours than other hostesses, and had more limited duties. (AR 44, 248, 250.) On March 7, 2020, she left this job to have surgery. (AR 41.)

On March 10, 2020, Ms. Salazar had surgery to remove obstructions from her right sinus. (AR 885.) Ms. Salazar testified that after the surgery, the migraines “just, like, disappeared for a little while.” (AR 42.) On April 1, 2020, she began working full-time as a grocery store cashier, “because if I don't work, I'm basically, you know, out on the streets.” (AR 41.) However, she testified that her migraines returned “about a month” after the sinus surgery, and she reduced her hours to 20 hours per week beginning on August 23, 2020.^[3] (AR 50, 53.)

Ms. Salazar filed a claim for DIB on December 3, 2018, alleging disability beginning on November 21, 2018. (AR 165.) Ms. Salazar's claim was denied initially and upon reconsideration. (AR 102-05, 111-13.) On October 8, 2019, she requested a hearing before an Administrative Law Judge (“ALJ”), which was held on August 25, 2020. (AR 29-60, 117-18.) On October 27, 2020, the ALJ issued an unfavorable decision. (AR 12-23.)

In her decision, the ALJ applied the Commissioner's five-step evaluation process.^[4] At step one, the ALJ determined that Ms. Salazar's work as a restaurant hostess was not substantial gainful activity (“SGA”) but that she had engaged in SGA from the time she started working as a grocery store cashier, i.e., April 1, 2020, to the date of the ALJ's decision. (AR 14-15.) The ALJ therefore found at least a “continuous 12-month period(s) during which the claimant did not engage in [SGA],” i.e., the 16 months from Ms. Salazar's alleged onset date to April 1, 2020. (Id.) The ALJ indicated that her remaining findings addressed “the period(s) [Ms. Salazar] did not engage in [SGA].” (AR 15.)

At step two, the ALJ found that Ms. Salazar has the severe impairments of PTSD, depression, migraines, and left hearing loss. (Id.) The ALJ also determined that Ms. Salazar's “deviated septum, vertigo, hypothyroid, and osteoarthritis of the hand do not significantly limit her ability to perform basic work activities and are non-severe.” (Id.) At step three, the ALJ found that Ms. Salazar's impairments do not meet or medically equal the severity of one of the Listings described in Appendix 1 of 20 C.F.R. Part 404, Subpart P. (AR 15-17.)

At step four,^[5] the ALJ found that Ms. Salazar

has the residual functional capacity [(“RFC”)] to perform a full range of work at all exertional levels but with the following non-exertional limitations: she can never climb ladders, ropes, or scaffolds; she can never be exposed to unprotected heights, hazardous machinery, or concentrated exposure to environmental irritants or sunlight; the noise level of the work environment should be moderate or less; she cannot operate a motor vehicle for commercial purposes; she can perform simple and some detailed tasks, with no fast-paced production work; and she can occasionally interact with the general public.

(AR 17.) The ALJ further found that Ms. Salazar is unable to perform her past relevant work as a medical assistant. (AR 21.)

At step five, the ALJ found that there is other work Ms. Salazar can perform that exists in significant numbers in the national economy. (AR 21-22.) In making this determination, the ALJ relied on the vocational expert's testimony that a hypothetical individual with Ms. Salazar's age, education, work experience, and assigned RFC would be able to perform the representative occupations of marker, router, and collator operator. (Id.) The ALJ therefore concluded that Ms. Salazar “has not been under a disability, as defined in the Social Security Act, from November 21, 2018, through the date of this decision[.]” (AR 22.)

Ms. Salazar appealed the ALJ's decision to the Appeals Council, and on January 12, 2021, the Appeals Council denied her request for review. (AR 1-3.) The ALJ's decision is thus the Commissioner's final decision from which Ms. Salazar now appeals.

II. Standard of Review

The Court's review of the Commissioner's final decision is limited to determining whether substantial evidence supports the ALJ's factual findings and whether the ALJ applied the correct legal standards to evaluate the evidence. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). In making these determinations, the Court must meticulously examine the entire record but may neither reweigh the evidence nor substitute its judgment for that of the agency. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep't of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993).

The Court will not disturb the Commissioner's final decision if it correctly applies legal standards and is based on substantial evidence in the record. Hamlin, 365 F.3d at 1214. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). It is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Court's 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 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) (quotation marks and brackets omitted). Although an ALJ is not required to discuss every piece of evidence, “[t]he record must demonstrate that the ALJ considered all of the evidence,” and “in addition to discussing the evidence supporting [her] decision, the ALJ also must discuss the uncontroverted evidence [she] chooses not to rely upon, as well as significantly probative evidence [she] rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). If the ALJ fails to do so, “the case must be remanded for the ALJ to set out [her] specific findings and [her] reasons for accepting or rejecting evidence[.]” Id. at 1010.

III. Discussion

Ms Salazar argues that remand is warranted because, in assessing Ms. Salazar's RFC, the ALJ: (1) failed to account for or adequately explain her rejection of a moderate mental limitation to which Bonnie Chavez, Ph.D., and Joy Kelley, Ph.D., opined; and, (2) failed to consider or adequately explain her rejection of significantly probative medical evidence related to Ms. Salazar's migraines.^[6] (Doc. 23 at...