United States District Court, D. New Mexico
RUSTY D. KOHLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
HONORABLE M. CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Magistrate Judge Lourdes A.
Martínez' Proposed Findings and Recommended
Disposition (hereinafter “PF&RD”) (Doc.
25), filed on January 18, 2017, that recommended denying
Plaintiff's Opening Brief (Doc.
19) (hereinafter “motion”), filed on
August 2, 2016, 2016, which the Court construed as a motion
to reverse and remand this case to the Commissioner. On
February 1, 2017, Plaintiff filed objections (Doc.
26) to the PF&RD (Doc. 25) and, on February 7,
2017, Defendant filed a response (Doc. 27) to
Plaintiff's objections. The Court has conducted a de
novo review of those portions of the PF&RD to which
Plaintiff objects, and finds that the objections are without
merit. Accordingly, the Court will:
(1) OVERRULE Plaintiff's objections;
(2) ADOPT the Proposed Findings and Recommended
Disposition (Doc. 25);
(3) DENY Plaintiff's construed motion (Doc. 19);
(4) DISMISS this case, with prejudice.
Plaintiff's first objection to the PF&RD, he asserts
that, unless a claimant can perform the “full range of
work in a specific category, ” he cannot be assigned
jobs within that category. [Doc. 26 at 1-3]. Thus,
since Plaintiff's ability to perform the full range of
light work was restricted by the ALJ, he contends that he
must be limited to sedentary work. Id. However,
restrictions that preclude the “full range” of
work in an exertional category are not only allowed, but are
standard practice. See, e.g., Soc. Sec. Rep. 83-12
(when an individual's RFC “does not coincide with
the definition of any one of the ranges of work as defined in
. . . the regulations, ” the ALJ “will consider
the extent of any erosion of the occupational base”
caused by the departure from the defined work range). This is
precisely why vocational experts are routinely consulted in
disability cases and are tasked with matching the ALJ's
restrictions to jobs within a specific exertional category.
Not every job that is designated as “light work”
in the Dictionary of Occupational Titles (“DOT”)
will require performance of the full range of light work.
See, e.g., POMS DI 25003.001(C)(2)(4) (vocational
expert should be consulted when an RFC falls “between
two levels of exertion”) (citing Soc. Sec. Rep. 83-14).
Plaintiff's assertion that each exertional category is
all-or-nothing is simply without support. Therefore, the
Court finds that Plaintiff's assertions regarding this
issue are without merit, and this objection will be
also contends that POMS DI 25025.015(B) dictates that,
where a claimant is “not disabled” under either
of the exertional categories that his RFC falls between, the
ALJ should rely on the lower category and, therefore, that
the ALJ “should have used the sedentary table rule as a
framework.” [Doc. 26 at 3]. First, this is not
an argument that Plaintiff made to the Magistrate Judge, and
objections are not intended to provide a means for presenting
new arguments after the Magistrate Judge recommends an
unfavorable disposition. See Marshall v. Chater, 75
F.3d 1421, 1426-27 (10th Cir. 1996). In any event, the
referenced POMS rule simply provides that, where an RFC falls
between exertional levels, and the medical-vocational grids
applicable to each level both conclude that the claimant
is “not disabled, ” the ALJ should cite the
rule for the lower exertional level, enter a ruling of
“not disabled, ” and not cite specific jobs that
the claimant could perform, because the rules themselves
establish that a significant number of jobs exist that the
claimant could perform. This directive simply does not
support Plaintiff's claim that, when an RFC falls between
exertional levels, the ALJ is required to assess the claimant
at the lower level. Even if it did, the end result still
would be a finding of “not disabled, ” as
indicated by the rule itself. This objection is also without
merit and will be overruled.
next objection asserts that the Magistrate Judge
“misunderstood” his argument to the effect that
the ALJ erred by not discussing the opinions of Drs. Glass
and Remondino that Plaintiff was not capable of “light
work.” [Doc. 26 at 4-7]. This argument relies
on the same faulty premise as do Plaintiff's preceding
arguments. Plaintiff continues to assert that “using
the accepted definitions for light and sedentary [work] and
their requirements, ” an opinion that restricts a
claimant to less than the full range of work in one category
must be considered as endorsement of the lowest category of
work in which claimant could perform the full range of work.
Id. at 5-6. As already explained, Plaintiff's
interpretation of the law is not supported. Therefore, this
objection is without merit and will be overruled.
next restates the argument he made to the Magistrate Judge,
to the effect that he was denied due process by the ALJ's
failure to ensure that an article relied upon by the
vocational expert became a part of the record. Id.
at 7-8. This is not an objection so much as it is a second
effort by Plaintiff to convince this Court of the validity of
an already rejected argument. In any event, as the Magistrate
Judge pointed out, not only did Plaintiff fail to take any
steps to obtain the document once he was unable to access it
online, he also failed even to argue that his lack of access
to the document prejudiced him. Effectively, this claim is
that Plaintiff was unable to access a document online that
the vocational expert relied on to determine the limiting
effect of a sit-stand restriction. Such a claim is
insufficient to even raise an issue of denial of due process.
Therefore, this objection is without merit and will be
Plaintiff's final objection he asserts that the
Magistrate Judge's statement that “credibility
determinations are peculiarly the province of the finder of
fact” (Doc. 25 at 20) is an “improper
post-hoc argument made to support the decision”
(Doc. 26 at 9). Again, Plaintiff misunderstands the
legal concepts he seeks to apply. Post-hoc arguments seek to
supply a rationale for the fact-finder's decision that
the fact-finder did not himself use. See, e.g., Haga v.
Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). In this
case, the Magistrate Judge simply stated the established law
regarding appellate review of ALJ decisions. See Kepler
v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Such
statements are not post-hoc rationale. Plaintiff follows that
assertion by rearguing his claim that the ALJ's
credibility assessment was “wrong.” [Doc.
26 at 10-14]. However, as the Magistrate Judge pointed
out, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the
ALJ]'s findings from being supported by substantial
evidence.” Lax, 489 F.3d at 1084. The
Magistrate Judge properly assessed the ALJ's credibility
determination regarding Plaintiff and found it to be
supported by substantial evidence. Therefore, this objection
is also without merit and will be overruled.
THEREFORE ORDERED, for the reasons stated above that:
Plaintiff's objections to the PF&RD (Doc. ...