United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
LOURDES A. MARTÍNEZ, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing With Supporting
Memorandum (Doc. 21), filed December 1, 2016
(hereinafter “motion”). On January 23, 2017,
Defendant filed a response (Doc. 23) to
Plaintiff's motion and, on February 7, 2017, Plaintiff
filed a reply (Doc. 24). 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 [Doc. 25]. 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.
13]. 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 “Defendant”) should be AFFIRMED.
April 20, 2009, Plaintiff protectively filed an application
for Disability Insurance Benefits (hereinafter
“DIB”), alleging disability that began on May 31,
2008. [Doc. 13-8 at 19]. Plaintiff's application
was denied at the initial level on September 17, 2009
(Doc. 13-4 at 2) and, at the reconsideration level,
on March 10, 2010 (id. at 3). Plaintiff requested a
hearing to review the denial of her application (Doc.
13-5 at 13), and Administrative Law Judge Barry Robinson
(hereinafter “ALJ Robinson”) conducted a hearing
on October 12, 2011 (Doc. 13-3 at 27-65). Plaintiff
appeared at the hearing, represented by her former attorney
Michelle Vaca, and testified (id. at 29, 31-57), as
did Vocational Expert Michael L. Driscoll (hereinafter
“VE Driscoll”) (id. at 58-64).
January 10, 2012, ALJ Robinson issued a decision (Doc.
13-3 at 12-22) finding that Plaintiff “has not
been under a disability, as defined in the Social Security
Act, from May 31, 2008, through the date of this
decision.” Id. at 21. On February 24, 2012,
Plaintiff requested that the Appeals Council review ALJ
Robinson's decision. Id. at 7. On February 21,
2013, 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. This decision was a final decision of the
Commissioner. Plaintiff appealed that decision to this
district court (Jacquez v. Colvin, Civ.-13-383 SMV)
and, on September 16, 2016, the decision was reversed and the
case was remanded to the agency for further
proceedings. [Doc. 13-14 at 3-17]. On December
10, 2014, after its receipt of the district court's
decision, the Appeals Council issued a remand order that
notified the not-yet-assigned ALJ that Plaintiff had filed
subsequent DIB and Supplemental Security Income (hereinafter
“SSI”) applications on March 15,
2013; consolidated those claims with
Plaintiff's previous DIB claim; and directed the ALJ to
offer Plaintiff an opportunity for a new hearing to address
additional evidence, to take any necessary additional action,
and to issue a new decision. Id. at 20.
to that remand order, another hearing was held on October 20,
2015 (Doc. 13-13 at 2-31) by ALJ Ann Farris
(hereinafter “ALJ Farris”), at which Plaintiff
again appeared, represented by her current attorney, Michael
Armstrong, and testified (id. at 4, 8-26). Also
appearing and testifying at the hearing was Vocational Expert
Karen Nixon Provine (hereinafter, “VE Provine”).
Id. at 4, 27-30. On December 18, 2015, ALJ Farris
issued a decision finding that Plaintiff “was not under
a disability . . . at any time through December 31, 2013, the
date last insured” for purposes of her DIB claims.
[Doc. 13-12 at 15]. However, ALJ Farris also
determined that Plaintiff became disabled “[b]eginning
on September 9, 2014, the date [her] age category
changed.” Id. Plaintiff did not file
exceptions to ALJ Farris' decision, and the Appeals
Council did not assume jurisdiction within sixty days.
Therefore, pursuant to 20 C.F.R. § 404.984(d), the
ALJ's decision became the final decision of the
Commissioner. On April 11, 2016, Plaintiff filed her
complaint in this case. [Doc. 1].
Standard of Review
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.
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)).
Applicable Law and Sequential Evaluation
purposes of DIB and 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. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505(a), 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. §§
404.1520, 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. §§ 404.1520(a)(4)(i-iv),
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.
Plaintiff's Age, Education, Work Experience, and Medical
History; and the ALJ's Decision
was born on September 10, 1964 (Doc. 13-7 at 2), and
was 44 years old on May 31, 2008, the alleged date of
disability onset. Plaintiff turned 50 years old on September
10, 2014. For the purposes of her disability claims,
Plaintiff was considered to be a “younger person”
until she turned 50, and was thereafter considered to be
“closely approaching advanced age.”Plaintiff reads
and understands English, but has only a ninth grade
education. [Doc. 13-8 at 2, 7]. Prior to filing her
disability claims, Plaintiff had worked intermittently as a
waitress, a cashier, and a housekeeper. [Doc. 13-13
at 8-9, 28]. She last worked on November 16, 2008, when her
teller job at a race track job terminated due to the end of
horse racing season. [Doc. 13-8 at 3]. In her 2013
DIB and SSI applications, Plaintiff claimed disability due to
“Bilateral Knee Instability, Degenerative Joint
Disease, Left Leg Shorter than the Right Leg[, ] Acid Reflux,
Hernia, Anemia[;] Hip Dysplasia, [and] Chronic Back
Pain.” [Doc. 13-20 at 7].
medical records include: treatment record, dated February 22,
2013, from Andrew J. Veitch, M.D. (Doc. 13-22 at
2-3); outpatient treatment records for the periods from
October 3, 2011 to February 27, 2013 (id. at 9-28),
from May 18, 2012 to September 12, 2013 (Doc. 13-23
at 5-44), from September 4, 2013 to September 10, 2015
(Doc. 13-24 at 10-21), and from October 1, 2013 to
October 6, 2015 (Doc. 13-25 at 3 through Doc.
13-27 at 19), from the University of New Mexico Health
Sciences Center; medical assessment of work-related
abilities, physical (Doc. 13-22 at 29) and
non-physical (id at 30), both dated May 1, 2013,
from Dr. Andrew Veitch; medical assessments of work-related
abilities, physical, dated September 3, 2013 (Doc.
13-24 at 6) and September 7, 2013 (id. at 3),
listing 12.04 assessments, dated September 3, 2013
(id. at 7) and September 7, 2013 (id. at
4), and listing 12.06 assessment, dated September 3, 2013
(id. at 8) from Grace Mishkin, CFNP; and medical
assessment of work-related abilities, physical, dated March
25, 2014, from Lesley Toser, DPT (id. at 5). Where
relevant, Plaintiff's medical records are discussed in
more detail below.
one of the five-step evaluation process, ALJ Farris found
that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of disability.
[Doc. 13-12 at 8]. At step two, she found that
Plaintiff has had the following severe impairments since May
31, 2008: “scoliosis, anxiety,
patellafemoral instability, leg-length discrepancy, and a
history of congenital hip dislocation.” Id. At
the third step, ALJ Farris found that Plaintiff “has
not had an impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).” Id. at
9. In so finding, ALJ Farris considered Listing 1.02 Major
Dysfunction of a Joint(s)), and concluded that: (1) because
imaging of Plaintiff's hip “has revealed no
joint-space narrowing, bony destruction or ankylosis”;
and (2) because, “examiners regularly reported good
range of motion [in Plaintiff's knees], despite
complaints of pain, ” and Plaintiff “ambulates
minus any assistive device beyond knee braces.” her hip
and knee impairments were not of listing-level severity.
to step four, ALJ Farris determined that, since May 31, 2008,
Plaintiff had the RFC to:
perform sedentary work (lift 10 pounds occasionally,
stand/walk for two hours out of an eight-hour day and sit for
six hours out of an eight-hour day) as defined in 20 CFR
404.1567(a) and 416.967(a) except she cannot kneel, crouch or
crawl. She can occasionally climb, balance and stoop.
[Plaintiff] can make simple decisions in a work environment
with few changes.
Id. In support of this RFC assessment, ALJ Farris
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 12.
four, ALJ Farris found that Plaintiff “has been unable
to perform any past relevant work” since May 31, 2008,
because the requirements of Plaintiff's previous work
exceed her present RFC. Id. at 13. At step five, ALJ
Farris found that, prior to September 9, 2014, jobs existed
in significant numbers in the national economy that Plaintiff
could have performed. Id. at 14. ALJ Farris
indicated that, “if [Plaintiff] had the [RFC] to
perform the full range of sedentary work, a finding of
‘not disabled' would be directed by
Medical-Vocational Rule 201.19, ” but that
Plaintiff's ability to perform sedentary work “was
impeded by additional limitations.” Id.
Therefore, ALJ Farris relied on VE Provine's testimony
that an individual with Plaintiff's work history,
education, and RFC could have performed the following
representative jobs: stuffer (DOT 731.685-014), table worker
(DOT 739.687-182), and addresser (DOT 209.587-010). [Doc.
13-12 at 14]. Based on that testimony, ALJ Farris
concluded that a finding of “not disabled” was
appropriate for the period prior to September 9, 2014.
Id. However, ALJ Farris then found that,
“[b]eginning on September 9, 2014, the date
[Plaintiff]'s age category changed, considering
[Plaintiff]'s age, education, work experience, and [RFC],
there are no jobs that exist in significant numbers in the
national economy that she could perform.” Id.
current motion to remand, Plaintiff argues that ALJ Farris:
(1) failed to provide specific, legitimate reasons for
rejecting the medical opinions of treating physician, Andrew
Veitch, M.D.; (2) breached her administrative duty to develop
the record concerning whether Plaintiff has additional mental
health impairments; and (3) failed to properly analyze VE
Provine's testimony and, therefore, her step five
determination is not supported by substantial evidence.
[Doc. 21 at 2]. Defendant responds that: (1) ALJ
Farris reasonably weighed Dr. Veitch's opinion; (2) the
record regarding Plaintiff's mental condition was
adequately developed; and (3) ALJ Farris appropriately relied
on VE Provine's testimony. [Doc. 23 at 5, 8, and
10, respectively]. In reply, Plaintiff argues that: (1)
Defendant failed to respond to the arguments in her motion
and, instead, offered impermissible post hoc
explanations; (2) ALJ Farris relied on medical sources that
never offered “true medical opinions”; (3) that
Defendant is “imputed with the knowledge” that
VEs have been providing jobs numbers that are unreliable; and
(4) the case should be remanded for an immediate award of
benefits. [Doc. 24 at 2, 3, 4, and 5,
ALJ Farris' Consideration of the ...