United States District Court, D. New Mexico
DANIEL R. BILLIMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand to Agency for a Rehearing, With
Supporting Memorandum” (“Motion”), filed on
September 29, 2016. ECF No. 24. The Commissioner responded on
December 29, 2016. ECF No. 28. Plaintiff replied on January
12, 2017. ECF No. 29. Having meticulously reviewed the entire
record and the parties' pleadings, the Court finds that
Plaintiff's Motion is not well taken and that the
Administrative Law Judge's (“ALJ's”)
ruling should be AFFIRMED. Therefore, and for the further
reasons articulated below, the Court will
DENY Plaintiff's Motion.
was born on October 19, 1962, in Fort Defiance, Arizona.
Administrative R. (“AR”) 311-12. He graduated
from Window Rock High School in neighboring Window Rock,
Arizona, in 1984. AR 312. From 1993 to 2011, he held
semi-continuous employment in general labor and janitorial
maintenance positions. AR 22, 209, 234. Plaintiff's last
employment as a janitor with Gallup Catholic Schools ended on
September 16, 2011, when the contract for the position
terminated. AR 22, 312.
filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on May 22, 2012. AR 29. Plaintiff claimed
disability beginning on September 16, 2011, based on
arthritis, a dislocated hip, insomnia, migraines, and acid
reflux. AR 244. The Social Security Administration
(“SSA”) denied Plaintiff's application
initially on October 15, 2012, and upon reconsideration on
March 29, 2013. AR 52, 65. At his request, Plaintiff received
a de novo hearing before ALJ Ann Farris on April 30,
2014, at which Plaintiff and his attorney
appeared. AR 16-28. On August 5, 2014, the ALJ
issued her decision, finding that Plaintiff was not disabled
within the meaning of the Social Security Act (“the
Act”). AR 82-91. Plaintiff appealed to the SSA Appeals
Council, but it declined review on December 5, 2015. AR 1-3.
As a consequence, the ALJ's decision became the final
decision of the Commissioner. 20 C.F.R. § 422.210(a)
timely filed his appeal with this Court on February 2, 2016.
ECF No. 1.
advances three grounds for relief. First, he argues that the
ALJ erred by improperly evaluating the opinion of his
treating physician, thereby rendering Plaintiff's
residual functional capacity (“RFC”) finding
legally infirm. Pl.'s Mot. 5-9, ECF No. 24. Second, he
contends the ALJ failed to develop the record regarding his
nonexertional limitations and to incorporate these
limitations into his RFC, which resulted in a subsequent
misapplication of the SSA “grids.” Id.
at 10-15. Lastly, he alleges that the SSA Appeals Council
incorrectly declined to review relevant evidence.
Id. at 15-19.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. The Court's review of that final
agency decision is both factual and legal. See 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)) (“The standard
of review in a social security appeal is whether the correct
legal standards were applied and whether the decision is
supported by substantial evidence.”).
factual findings at the administrative level are conclusive
“if supported by substantial evidence.” 42 U.S.C.
§ 405(g) (2012). “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);
Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003). 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;
Hamlin, 365 F.3d at 1214. Substantial evidence does
not, however, require a preponderance of the evidence.
See 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)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for that of the Commissioner.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
the review of the ALJ's legal decisions, the Court
examines “whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
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. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2017). At the first three steps, the ALJ
considers the claimant's current work activity, the
medical severity of the claimant's impairments, and the
requirements of the Listing of Impairments. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt.
404, Subpt. P, App. 1. If a claimant's impairments are
not equal to one of those in the Listing of Impairments, then
the ALJ proceeds to the first of three phases of step four
and determines the claimant's RFC. See Winfrey,
92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e),
416.920(e). In phase two, the ALJ determines the physical and
mental demands of the claimant's past relevant work, and
in the third phase, compares the claimant's RFC with the
functional requirements of his past relevant work to
determine if the claimant is still capable of performing his
past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R.
§§ 404.1520(f), 416.920(f). If a claimant is not
prevented from performing his past work, then he is not
disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
claimant bears the burden of proof on the question of
disability for the first four steps, and then the burden of
proof shifts to the Commissioner at step five. See Bowen
v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v.
Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
claimant cannot return to his past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is nonetheless capable of performing other
jobs existing in significant numbers in the national economy.
See Thomas, 540 U.S. at 24-25; see also Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)
(discussing the five-step sequential evaluation process in
THE ALJ'S DECISION
issued her decision on August 5, 2014. AR 91. At step one,
she found that Plaintiff had not engaged in substantial
gainful activity since the alleged disability onset date of
September 16, 2011. AR 84. At step two, the ALJ found
Plaintiff's bilateral osteoarthritis of the knees and
lumbar degenerative disc disease to be severe impairments. AR
84. In contrast, the ALJ found Plaintiff's headaches,
right hip pain, acid reflux, left elbow pain, personality
disorder (not otherwise specified), and somatoform disorder
to be non-severe. AR 85.
three, the ALJ found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. AR 85-87. The ALJ began with
Plaintiff's personality disorder, which she considered
under “the four broad functional areas set out in the
disability regulations for evaluating mental disorders”
and in Listing 12.00(C). In the first functional area,
activities of daily living (“ADLs”), the ALJ
found Plaintiff had only a mild limitation, as he has
“no problem with personal care needs” and
performs a wide variety of ADLs. AR 86. In the second area,
social functioning, the ALJ found that Plaintiff had
“no limitation, ” based on his positive
interactions with peers and supervisors and his interview
with consultative psychologist Dr. Carl Adams, Ph.D. AR 86.
Third, as to Plaintiff's concentration, persistence, and
pace, the ALJ found Plaintiff had only a mild limitation. She
explained that Plaintiff “does not allege difficulty
understanding and following instructions, remembering things,
or completing tasks, ” and that when examined by Dr.
Adams in October 2012, he was “able to attend and
concentrate.” AR 86. Lastly, regarding episodes of
decompensation, the ALJ found “little in the record
suggesting the claimant has experienced such an
episode.” AR 86. Thus, because Plaintiff's
“medically determinable impairments cause no more than
‘mild' limitation in any of the first three
functional areas and ‘no' episodes of
decompensation which have been of extended duration, ”
the ALJ found that Plaintiff's mental impairments were
both non-severe and insufficient to qualify as presumptively
disabling under a relevant Listing. AR 86-87.
the ALJ considered Plaintiff's physical impairments under
relevant Listings. She began with Listing 1.02 for major
dysfunction of a joint. To meet that Listing, Plaintiff would
have had to establish that his osteoarthritis or hip pain
“resulted in an inability to ambulate
effectively.” AR 87. At a physical evaluation in May
2014, however, Plaintiff “demonstrated the ability to
walk with only a minimally antalgic gait.” AR 87.
Accordingly, the ALJ found Plaintiff did not meet or
medically equal the requirements of Listing 1.02.
the ALJ considered Plaintiff's lumbar degenerative disc
disease under Listing 1.04 for disorders of the spine. The
ALJ explained that, to qualify under that Listing, “a
claimant must show a disorder of the spine resulting in
compromise of a nerve root or spinal cord.” AR 87.
Moreover, a qualifying claimant must also demonstrate one of
the following: “evidence of nerve root compression,
spinal arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication, with an inability to ambulate
effectively.” AR 87. The ALJ found none of these
present in Plaintiff, as a magnetic resonance imaging
(“MRI”) scan performed on May 30, 2014, provided
“no evidence of stenosis.” AR 87. At his physical
evaluation that same month, Plaintiff was also able to
ambulate “with only a minimally antalgic gait.”
AR 87. Taken in tandem, this evidence led the ALJ to conclude
that Plaintiff's impairment “does not meet or
medically equal [L]isting 1.04.” AR 87.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 37-42. “After careful
consideration of the entire record, ” the ALJ
determined that “[Plaintiff] has the residual
functional capacity to perform the full range of light
work” as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b). AR 87.
develop Plaintiff's RFC, the ALJ relied on two principal
grounds. First, the ALJ rendered an adverse credibility
finding against Plaintiff, opining that Plaintiff's
“allegations regarding the disabling effects of his
impairments are not entirely credible.” AR 88. The ALJ
discerned multiple “inconsistencies in the
record” and summarized them thus:
Despite alleging disabling symptoms, [Plaintiff] has no
problem with his personal care needs. He is also able to
prepare complete meals, do house work, chop wood, clean his
yard, leave the house alone, drive, go shopping, pay bills,
count change, handle a savings account, [ ] use a checkbook .
. . [and] is able to walk up to a mile before having to stop
AR 87. Collectively, the ALJ found “[t]hese abilities
[to be] inconsistent with allegations of disability.”
AR 88. In addition, the ALJ discussed the consultative report
prepared by Dr. Adams in October 2012, which documented
Plaintiff getting up from a chair without difficulty,
carrying a large satchel with ease, and walking down a hall
with virtually no pain behavior, but, when placed in an
examination room and aware of the examiner's presence,
Plaintiff began exhibiting “exaggerated grunts and
groans.” AR 88 (quoting AR 311). Plaintiff's
conduct led Dr. Adams to conclude that Plaintiff's
“verbalized complaints [were] inconsistent with his
behavioral presentation.” AR 88 (quoting AR 311).
Lastly, the ALJ reflected on Plaintiff's administrative
hearing testimony, which included his admission that he quit
working not due to a disability, but because “his
contract ran out.” AR 88. See AR
This, too, “further reduced” Plaintiff's
credibility, and “taken together” with other
facts in the record, resulted in the ALJ finding that
Plaintiff's “allegations regarding the disabling
effects of his impairments are not entirely credible.”
with Plaintiff's adverse credibility finding, the ALJ
also relied on the medical evidence of record to determine
Plaintiff's RFC. Following her review, the ALJ opined
that “the objective findings in this case fail to
provide strong support for [Plaintiff's] allegations of
disabling symptoms and limitations resulting from his severe
impairments.” AR 88. Specifically, she documented
Plaintiff's treatment both for knee and back pain from
2012 through 2014. See AR 88-89. Even in records
post-dating his administrative hearing by one month,
ALJ noted that Plaintiff's gait was “minimally
antalgic, ” and that he “displayed full range of
motion.” AR 89. Moreover, in May 2014, an MRI taken of
Plaintiff's lower back showed a[n] ¶ 5-S1 annular
with multilevel loss of disc height, ” but the ALJ
highlighted that “no stenosis was
present.” AR 89 (citing AR 399-402).
closed her RFC analysis by discussing the medical opinions in
the record. First, she accorded great weight to the opinion
of consultative examining psychologist Dr. Carl Adams, who
“stated the [Plaintiff] does not have a severe mental
impairment.” AR 89. Next, she assigned “some
weight” to the opinion of Dr. Sterling Moore, M.D., the
non-examining state medical consultant, “who stated
[Plaintiff] can perform light work with some postural
limitations.” AR 89. Finally, the ALJ discounted the
opinion of Plaintiff's treating physician, Dr. Dylan
Stentiford, M.D. In a “Physical Capacities
Evaluation” completed by Dr. Stentiford on June 7, 2013
[AR 364-365], he concluded that Plaintiff could “sit
for no more than 2 hours per day and stand or walk for no
more than four hours per day.” AR 90. Moreover, Dr.
Stentiford “limited [Plaintiff] to lifting at the
sedentary extertional level.” AR 90. Although the ALJ
acknowledged that “[a] treating physician's opinion
is usually entitled to some weight, ” she found
“little to no support in the medical evidence”
for Dr. Stentiford's opinion. AR 90. She reasoned that
“x-rays of [Plaintiff's] hip showed no
abnormalities, ” and “[x]-rays [of
Plaintiff's knees] found only early degenerative
changes.” AR 90 (citing AR 332, 334-35). Similarly, the
ALJ observed that “despite [Plaintiff's] complaints
of disabling knee pain, [Plaintiff] exhibited good range of
motion in the joint.” AR 90 (citing AR 333). Most
importantly, the ALJ found that Dr. Stentiford's
“treatment notes do not support the degree of
limitation in his medical source statement.” AR 90.
four, the ALJ found that Plaintiff could not perform any past
relevant work. AR 90. Accordingly, the ALJ proceeded to step
five. Based on Plaintiff's age, education, work
experience, and RFC, the ALJ found that Plaintiff could
perform other jobs that exist in significant numbers in the
national economy. AR 90. No specific job titles or
descriptions were given for these jobs, as the ALJ found
Plaintiff capable of “the full range of light
work.” AR 91. Finally, the ALJ found that Plaintiff had
not been under a disability, as defined by the Act, during
the relevant time period and denied his claim. AR 91.
forth below, Plaintiff has failed to marshal sufficient
support from facts or case law to establish that the ALJ
applied incorrect legal standards or that her decision is
unsupported by substantial evidence. Consequently, his Motion
must be denied. The Court's reasoning as to each of
Plaintiff's three claims will be discussed
The ALJ Properly Evaluated the Opinion of Plaintiff's
raises two objections to the ALJ's treating physician
analysis. First, Plaintiff questions the evidentiary basis
for Plaintiff's RFC, arguing that “the ALJ failed
to support [Plaintiff's] RFC finding with substantial
evidence, and in so doing improperly rejected a treating
doctor opinion.” Pl.'s Mot. 5. He notes how
“[the ALJ] stated she gave treating Dr.
Stentiford's opinion little weight because the opinion
finds little to no support in the medical evidence.”
Id. at 9. But he takes exception to the ALJ's
citation to “one hip x-ray that showed ‘no
abnormalities' and one record that [Plaintiff] had good
range of motion in his knee joint.” Id. These
citations notwithstanding, Plaintiff contends that the ALJ
“failed to discuss other evidence, including the MRI
[which] showed an annular tear at ¶ 5-S1 with multilevel
loss of disc height, as well as severe
chondromalacia and degenerative changes in the right
knee.” Id. (citing AR 402, 407).
Plaintiff argues that the ALJ's treating physician
analysis is legally deficient. He reasons that “Social
Security regulations require the ALJ to give the opinion of
treating physicians controlling weight when the opinion is
well-supported by the medical evidence and consistent with
the record.” Id. at 8. He also describes that
“[i]n assessing Dr. Stentiford's opinion, [the ALJ]
was required to follow two distinct steps, ” but by
Plaintiff's estimation, the ALJ erred at both.
Id. at 8-9.
Commissioner responds that the ALJ “gave good reasons
for discounting” Dr. Stentiford's opinion,
“noting that it was inconsistent with objective medical
evidence in the record and inconsistent with his own
treatment notes.” Def.'s Resp. 8, ECF No. 28. She
also characterizes Dr. Stentiford's recommendations as
“work-preclusive, outlier limitations, ”
id., and contrasts them with the same portions of
the record highlighted by the ALJ. See Id. at 8-9.
The Commissioner emphasizes that the ALJ properly performed
the two steps of the treating physician analysis, even though
the ALJ did not expressly cite all of the regulatory factors.
In defending the ALJ, the Commissioner also cites authority