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Morales v. Berryhill

United States District Court, D. New Mexico

March 16, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's Motion to Reverse or Remand Administrative Agency Decision (Doc. 15) and his memorandum in support (Doc. 16), both filed October 3, 2016 (hereinafter, collectively, “motion”). On January 4, 2017, Defendant filed a response (Doc. 20) to Plaintiff's motion and, on January 23, 2017, Plaintiff filed a reply (Doc. 21). In accordance with 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73(b), the parties have consented to have the undersigned United States Magistrate Judge conduct all proceedings and enter a final judgment in this case. See [Docs. 4 and 7]. The Court has considered Plaintiff's motion, Defendant's response, Plaintiff's reply, and the relevant law. Additionally, the Court has meticulously reviewed and considered the entire administrative record. [Doc. 12]. For the reasons set forth below, the Court FINDS that Plaintiff's motion should be DENIED and the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) should be AFFIRMED.

         I. Procedural History

         On January 9, 2012 (Doc. 12-9 at 2), Plaintiff protectively filed an application for Supplemental Security Income (hereinafter “SSI”). Plaintiff's application was denied at the initial level on June 12, 2012 (Doc. 12-5 at 2), and at the reconsideration level on February 28, 2013 (id. at 3). On March 13, 2013, Plaintiff requested a hearing to review the denial of his application. See [Doc. 12-6 at 9]. Administrative Law Judge Barry O'Melinn (hereinafter “ALJ”) conducted a video hearing on June 18, 2014. [Doc. 12-4 at 2-42]. Plaintiff appeared, represented by attorney Patricia Glazek, and testified. Id. at 8-30, 39-41. Vocational Expert Mary Diane Weber (hereinafter “VE”) also appeared and testified. Id. at 30-38.

         On August 27, 2014, the ALJ issued a decision (Doc. 12-3 at 22-32) finding that, under the relevant sections of the Social Security Act, Plaintiff was not disabled from the date his application was filed (id. at 32). Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 16. On March 18, 2016, the Appeals Council denied Plaintiff's request for review on the ground that there was “no reason under our rules to review the [ALJ]'s decision.” Id. at 2. The Appeals Council indicated that it had “looked at an incident report dated October 27, 2014 (4 pages), ” which “new information is about a later time” and “does not affect the decision about whether you were disabled beginning on or before August 27, 2014, ” the date of the ALJ's decision.[1] Id. at 3. This decision was the final decision of the Commissioner. On May 4, 2016, Plaintiff filed his complaint in this case. [Doc. 1].

         II. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). 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 Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d at 760 (citation and quotation marks omitted). An ALJ's 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.” Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted). While a court may not re-weigh 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) (citations omitted). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         III. Applicable Law and Sequential Evaluation Process

         For purposes of SSI, a person establishes a disability when 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. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). In light of this definition for disability, a five-step sequential evaluation process (hereinafter “SEP”) has been established for evaluating a disability claim. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in “substantial gainful activity;” and (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 either (3) the claimant's impairment(s) meet(s) or equal(s) one of the “Listings” 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 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his or her residual functional capacity (hereinafter “RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         IV. Plaintiff's Age, Education, Work Experience, and Medical History; and the ALJ's Decision

         Plaintiff was born on March 23, 1965, and was 46 years old on January 9, 2012, the date he filed his disability application. [Doc. 12-9 at 2]. Thus, for the purposes of his disability claim, Plaintiff is considered to be a “younger person.”[2] Prior to filing his SSI application in 2012, Plaintiff last worked in August of 2011. Id. at 6-7, 29. In his application, Plaintiff claimed to be disabled due to PTSD, “anger issues, ” head injury, hepatitis C, liver disease, “mental and physical disabilities, ” and drug and alcohol addiction. Id. at 6. Although Plaintiff indicated in his application that he stopped working in 2011 because he “wasn't able to afford paying for things that were necessary for the job [he] was hired to do, ” he also stated that his conditions became severe enough to keep him from working on January 1, 2009. Id. Plaintiff has spent much of his life in custody, both as a minor and as an adult, and has been convicted of felonies. See [Doc. 12-11 at 14-21]. Although he did not complete high school, he obtained a GED while in custody of the New Mexico Boys School, and indicated that he “attended college in prison, ” and had completed one year of college. [Doc. 12-4 at 11; Doc. 12-9 at 7]. Plaintiff reported that most of his legal troubles involved alcohol and drug use, but that he had been clean and sober for 14 years as of the date of the hearing. [Doc. 12-4 at 12-13, 26; Doc. 12-14 at 8]. Plaintiff does not dispute the ALJ's determination that his alleged physical conditions are not disabling and, therefore, this appeal is solely limited to whether or not his mental conditions render him disabled.

         Plaintiff's medical records include: Psychological Evaluation dated July 27, 2004 from John G. Lang, Ph.D. (Doc. 12-12 at 26-29); consultative mental status evaluation dated March 26, 2010 by Steve Sandoval Martinez, Ph.D. (Doc. 12-14 at 8-10); mental status examination dated March 29, 2011 from Dan Hendricks, Ph.D. (id. at 11-15); treatment records for the periods from November 19, 2009 to September 20, 2011 (Doc. 12-15 at 3-20), from January 14, 2012 to February 14, 2012 (Doc. 12-16 at 3-13), and from November 19, 2009 to June 5, 2013 (Doc. 12-20 at 2 through Doc. 12-22 at 22) from Life Link; psychological evaluation report dated May 12, 2012 by Robert Krueger, Ph.D. (Doc. 12-17 at 3-7); neuropsychological evaluation dated June 10, 2012 from Gerald L. Russell, Ph.D. (id. at 22-29); psychiatric review technique (id. at 30-42) and mental RFC assessment (Doc. 12-18 at 2-4), both dated June 11, 2012, from Diane Kogut, Ph.D.; and treating source opinion regarding ability to do mental work-related activity dated May 22, 2014 (Doc. 12-22 at 32-33) and treatment records for the period from February 17, 2014 to April 3, 2014 (Doc. 12-23 at 2-6) from Carolyn Tjoland, LPCC. Where relevant, Plaintiff's medical records are discussed in more detail below.

         At step one of the five-step evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the filing of his disability application on January 9, 2012. [Doc. 12-3 at 24]. At step two, the ALJ found that Plaintiff has the following severe impairments: “anxiety, affective disorder, personality and organic brain disorders, and back disorder.” Id. At the third step, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” found in 20 C.F.R. Part 404, Subpt. P, Appx 1 (20 CFR §§ 416.920(d), 416.925, and 416.926). Id. The ALJ considered Listing 1.04 (Disorders of the Spine), and found that Plaintiff's back disorder did not meet or equal its criteria. Id. at 24-25. Regarding Plaintiff's mental impairments, the ALJ considered Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), and 12.06 (Anxiety Related Disorders), and determined that Plaintiff has mild restriction of his activities of daily living, moderate difficulties with social functioning, moderate difficulties with concentration, persistence or pace, and has experienced no episodes of decompensation of extended duration. Id. at 25-26. From those findings, the ALJ concluded that Plaintiff's impairments did not satisfy the criteria of either Paragraph B (severity of mental limitations) or Paragraph C (durational and functional requirements) of the Listings considered. Id. at 26. Before step four, the ALJ found that Plaintiff had the RFC:

[T]o perform medium work as defined in 20 CFR 416.967(c). [Plaintiff] can understand, remember, and carry out simple instructions. Further, he is able to make simple work related decisions and respond appropriately to supervision, co-workers, and work situations. [Plaintiff] is able to handle routine changes in the work setting, maintain concentration, persistence, and pace for up to and including two hours at a time with normal breaks throughout the workday. He should have no interaction with the public, only occasional contact with co-workers, and the work must be isolated with only occasional supervision.

Id. In support of this RFC assessment, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.” Id. at 27.

         At step four, the ALJ found that Plaintiff is unable to perform his past relevant work. Id. at 31. At step five, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff can perform. Id. In support of this finding, the ALJ relied on the VE's testimony that an individual of Plaintiff's age, with the same education, work experience, and RFC, could perform representative jobs such as industrial cleaner (DOT[3] 381.687-018), “dishwasher” (DOT 318.687.010), [4] and hand packager (DOT 920.587-018), all of which are medium exertional level, SVP[5] 2, jobs. Id. at 32. Therefore, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act “since January 9, 2012, the date the application was filed.” Id.

         V. Analysis

         Plaintiff argues in his motion that: (1) the ALJ erred by improperly evaluating the medical evidence relating to Plaintiff's mental functioning, resulting in an inaccurate and insufficiently supported mental RFC (Doc. 16 at 18-25); and (2) the Appeals Council improperly rejected evidence that was new, material, and temporally relevant to the ALJ's decision (id. at 25-26). In response, Defendant argues that the ALJ properly considered and weighed the medical opinions regarding Plaintiff's mental disorders, and Plaintiff's RFC is supported by substantial evidence (Doc. 20 at 4-10); and (2) the evidence rejected by the Appeals Council is not part of the record and should not be considered by the Court (id. at 11-12). In his reply, Plaintiff contends that Defendant fails to respond to several of Plaintiff's arguments, offers “post-hoc” reasons for the ALJ's decision, and cites inapt cases in support of her contentions. [Doc. 21].

         A. The ALJ's Assessment of Plaintiff's Mental Impairments

         The case presents the interesting issue of whether someone must be determined to be “disabled” from gainful employment based on a history of difficulty “getting along” with others. Plaintiff reports having an abusive childhood, a long history of alcohol and drug abuse, and a series of erratic and short-term jobs. See, e.g., [Doc. 12-4 at 9-12, 15-18, 27-29]. As noted above, he reported a similar history, including a violent and chaotic childhood (Doc. 12-17 at 4), to a variety of mental health professionals. As Plaintiff points out, there is significant evidence from which the ALJ could have determined that Plaintiff's mental conditions render him “unable” to engage in substantially gainful employment, which is a component of a valid disability claim. However, the ALJ determined that Plaintiff is capable of working, so long as his interactions with co-workers, supervisors, and the general public are limited. In so concluding, the ALJ relied on at least one acceptable medical source's opinion, Plaintiff's own accounts, and what he considered to be flaws in some of the other medical source opinions. There is no question that the outcome of Plaintiff's claim could have been “disabled” as well. However, it is not the job of the courts to re-weigh the evidence, or to second-guess the ALJ's decision, and “[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 v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). Thus, this Court's inquiry is limited to whether or not the ALJ's decision is supported by substantial evidence.

         The medical source evidence consists of seven mental health opinions that were rendered between July 2004 and May 2014. All sources indicate that Plaintiff has some degree of impairment with respect to social interaction, with most indicating that ...

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