United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION TO REVERSE AND
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for Payment of Benefits, or in the
Alternative, for Rehearing with Supporting Memorandum”
(“Motion”) [ECF No. 19]. Having meticulously
reviewed the entire record, considered the parties'
arguments, and being otherwise fully advised, the Court
concludes that substantial evidence supports the
Commissioner's decision to deny benefits and that proper
legal standards were applied. Therefore, and for the
following reasons, the Court will deny Plaintiff's
February 16, 2010, Plaintiff applied for disability insurance
benefits, alleging that his disability began on February 15,
2010. Administrative R. (“AR”) 202-05.
Plaintiff's application was initially denied on July 9,
2012 [AR 83-84], and upon reconsideration on May 3, 2012. AR
125-26. Plaintiff then filed a written request for a hearing,
and, on July 8, 2014, Administrative Law Judge
(“ALJ”) Michelle Lindsay held a hearing in
Albuquerque, New Mexico. Plaintiff testified at the hearing
and was represented by non-attorney representative John
Bishop. The ALJ also heard testimony from Judith Beard, an
impartial vocational expert. AR 26-65.
September 22, 2014, the ALJ issued a decision, concluding
that Plaintiff had not been under a disability within the
meaning of the Social Security Act (“the Act”)
since the date his application was filed. AR 12-20. Plaintiff
requested the ALJ's decision be reviewed by the Appeals
Council, and, on March 3, 2016, the Appeals Council denied
his request. AR 1-5. Consequently, the ALJ's decision
became the final decision of the Commissioner. Plaintiff
timely filed his appeal in this Court on April 8, 2016.
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), a court may review a final
decision of the Commissioner only to determine whether the
decision is supported by substantial evidence and whether the
correct legal standards were applied. See 42 U.S.C.
§ 405(g) (2015); see also 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); see
also Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004). “The failure to apply the correct legal
standards 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) (internal
quotation marks omitted). “In reviewing the ALJ's
decision, ‘we neither reweigh the evidence nor
substitute our judgment for that of the agency.'”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008) (quoting Casias v. Sec'y of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991)); see
also Hamlin, 365 F.3d at 1214 (“[B]ecause our
review is based on the record taken as a whole, [the Court]
will meticulously examine the record in order to determine if
the evidence supporting the agency's decision is
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003) (quoting Fowler v. Bowen, 876 F.2d 1451, 1453
(10th Cir. 1989)). “A 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
(quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th
Cir. 1988)). “The record must demonstrate that the ALJ
considered all of the evidence, but an ALJ is not required to
discuss every piece of evidence.” Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation
omitted). “Rather, in addition to discussing the
evidence supporting his decision, the ALJ also must discuss
the uncontroverted evidence he chooses not to rely upon, as
well as significantly probative evidence he rejects.”
Id. at 1010. “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's findings from being supported
by substantial evidence.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
SUMMARY OF ARGUMENTS
argues that the ALJ committed reversible legal error for
three primary reasons: (i) the ALJ improperly concluded that
Plaintiff's severe impairments did not meet the Listing
of Impairments, (ii) the ALJ omitted key limitations from
Plaintiff's residual functional capacity
(“RFC”) and erred in making credibility findings
in calculating the RFC, and (iii) the positions identified by
vocational expert (“VE”) as ones that Plaintiff
could occupy consistent with the RFC do not exist in
significant enough numbers in the national economy.
See Pl.'s Mot. 1, ECF No. 19, passim.
In opposition, the Commissioner contends that (i) the ALJ
properly found that Plaintiff's impairments did not meet
or medically equal a listed impairment, (ii) the ALJ's
finding that Plaintiff's RFC permitted him to perform a
limited range of sedentary work was based on substantial
evidence and otherwise properly calculated, and (iii) the VE
committed no error in identifying positions that exist in
sufficient numbers in our national economy that Plaintiff
could perform consistent with his RFC. See
Def.'s Br. in Resp. to Pl.'s Mot. (“Def.'s
Resp.”), ECF No. 21, passim.
APPLICABLE LAW AND SEQUENTIAL EVALUATION PROCESS
purposes of Social Security disability insurance benefits,
the term “disability” means “inability 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) (2012). To
determine if an individual is disabled, the Social Security
Administration utilizes a five-step sequential evaluation
process, 20 C.F.R. § 404.1520 (2015), with each step
being followed in order. Id. § 404.1520(4). If
it is conclusively determined that the individual is or is
not disabled at any step of the evaluation process, the
evaluation does not go on to the next step. Id.
claimant bears the burden of establishing a prima facie case
of disability at steps one through four. Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).
At step one, the claimant must show “that he is not
presently engaged in substantial gainful activity;” at
step two “that he has a medically severe impairment or
combination of impairments;” at step three that the
impairment is “equivalent to a listed
impairment;” and, at step four, “that the
impairment or combination of impairments prevents him from
performing his past work.”
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005) (quoting Williams, 844 F.2d at 750-52). At
step five, “the burden shifts to the Commissioner to
show the claimant retains sufficient residual functional
capacity (RFC) to perform work in the national economy, given
his age, education, and work experience.” Id.
(quoting Williams, 844 F.2d at 751).
September 22, 2014, the ALJ issued a decision denying
Plaintiff's application for benefits. In doing so, the
ALJ conducted the five-step sequential evaluation process. AR
12-20. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since February 15,
2010, the date of his alleged disability onset. At step two,
the ALJ determined Plaintiff had the following severe
impairments: immunoglobulin deficiency and recurrent
pneumonia. The ALJ found these impairments to be severe
because “they cause more than a minimal limitation on
the [Plaintiff's] ability to perform basic work
activities.” AR 14.
three, the ALJ concluded that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. The ALJ evaluated
Plaintiff's impairments under Listings 3.02 and 14.07 to
reach this conclusion. Focusing first on Plaintiff's
recurrent pneumonia, the ALJ found that the “available
medical evidence did not demonstrate chronic obstructive
pulmonary disease.” AR 14-15. Next, the ALJ found that
Plaintiff's condition did not satisfy the paragraph A
criteria for Listing 14.07 (immune deficiency disorders)
because there was no medical evidence to illustrate that
Plaintiff had an infection that was resistant to
treatment. The ALJ also determined that there was
insufficient medical evidence upon which to conclude that
Plaintiff had satisfied the criteria for either paragraphs B
or C of Listing 14.07.AR 15.
step four, the ALJ determined Plaintiff had the following
residual functional capacity (“RFC”): “[T]o
perform sedentary work as defined in 20 C.F.R. 404.1567(a)
and 416.967(a) except he is never able to climb ladders,
ropes[, ] or scaffolds and he must avoid frequent exposure to
pulmonary irritants such as fumes, odors, dusts, gases[, ]
and poor ventilation.” AR 15. 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 . . . .” AR 16. In reaching this
determination, the ALJ adopted portions of two state agency
medical consultants' opinions. AR 18. Additionally,
although the ALJ considered opinions from Plaintiff's
treating physician, a consultative examiner, and
Plaintiff's wife, she assigned “little
weight” to each of these three opinions for reasons
that the ALJ explained. AR 17.
fifth and final step, the ALJ noted that Plaintiff was born
on December 24, 1966, and was therefore 43 years old as of
the alleged disability onset date, which is considered to be
a “younger individual” pursuant to 20 C.F.R.
§§ 404.1563 and 416.963. The ALJ further noted that
Plaintiff has at least a high school education, is able to
communicate in English, and that he “has acquired work
skills from past relevant work.” AR 18. The ALJ
determined that Plaintiff would not be able to perform any
past relevant work as a karate instructor, desk clerk,
satellite installer, or a sales clerk. AR 18. Thereafter, the
ALJ asked the vocational expert “if any occupations
exist which could be performed by an individual with the same
age, education, past relevant work experience, and residual
functional capacity as [Plaintiff], and which require skills
acquired in the [Plaintiff's] past relevant work but no
additional skills.” AR 19. The VE testified that such
an individual would be capable of working in the following
jobs: appointment clerk (DOT 237.367-010), document preparer
(DOT 249.587-018), and jewelry preparer (DOT 700.687-062).
Subsequently, the ALJ concluded that Plaintiff was not
disabled under the meaning of the Act from February 15, 2010,
through the date of the decision. AR 20.
Listing of Impairments
first challenges the ALJ's finding at step three that his
impairments, either individually or in combination, do not
meet or equal Listed Impairment 14.07 (immune deficiency
disorders). Pl.'s Mot. 15-17. According to Plaintiff, the
ALJ failed to describe which paragraphs of that listing she
considered, which he claims has hindered his ability to
challenge the finding. Id. Additionally, Plaintiff
asserts that he presented medical evidence that was
sufficient to prove that he does meet the requirement of both
paragraphs A and C of Listing 14.07. Id. The
Commissioner argues that Plaintiff cannot show that he
satisfied the criteria either for Listing 14.07(A) or (C).
Def.'s Resp. 6-7. Therefore, the ALJ reasonably concluded
that the evidence failed to document the criteria from
Listing 14.07 and proceeded with the sequential evaluation
process. Id. at 7.
three of the sequential evaluation process, the ALJ must
determine whether a claimant's impairment is
“equivalent to one of a number of listed impairments
that the Secretary acknowledges as so severe as to preclude
substantial gainful activity.” Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1997) (quoting
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)). To do so in a manner that sufficiently permits
meaningful judicial review, the Tenth Circuit has held that
an ALJ is “required to discuss the evidence and explain
why [the ALJ] found that [the claimant] was not disabled at
step three.” Id. Statements containing summary
conclusions that a claimant's impairments do not meet or
equal a Listed Impairment are considered to be “bare
conclusions” that do not permit meaningful judicial
review. Id. Instead, an ALJ is required to discuss
the evidence that both supports her decision as well as the
evidence that she chose not to rely upon. Id. at
1010. It is not required, however, that an ALJ discuss every
piece of evidence. Id. at 1009.
ALJ's analysis of whether Plaintiff's immune
deficiency disorder satisfied Listing 14.07(A)-(C) was set
forth in a single paragraph:
With regard to the claimant's autoimmune disorder, I gave
particular attention to Listing 14.07, Immune Deficiency
Disorders. The available medical evidence does not
demonstrate sepsis, meningitis, pneumonia, septic arthritis,
endocarditis or sinusitis that was resistant to treatment; or
stem cell transplantation; or repeated manifestations of an
immune deficiency disorder with at least two of the
constitutional symptoms and one of the following at the
marked level: limitation of activities of daily living,
maintaining social functioning or completing tasks in a
timely manner due to deficiencies in concentration,
persistence and pace. Specifically, the evidence failed to
document any of the above criteria.
this analysis is thin, it is not impermissibly threadbare,
for it still provides this Court with the material it needs
to meaningfully review this claim. In its own plain language,
Listing 14.07 provides three separate, alternative, and
distinct ways by which a claimant can demonstrate that his
immune deficiency disorder is sufficiently serious to
automatically qualify as disabling. It is clear to this Court
that the ALJ evaluated whether Plaintiff's evidence met
the criteria of any of the three paragraphs, and concluded
that it did not. This Court agrees.
satisfy the criteria of Listing 14.07(A), a claimant must
demonstrate that (1) he has one or more of a list of six
infections, and (2) that the infection is
either resistant to treatment or
“require[s] hospitalization or intravenous treatment
three or more times in a 12-months period.” 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1, Pt. A2 (2016). In neither
his Motion nor his Reply does Plaintiff argue that the ALJ
should have found that he had one or more of the six listed
infections. See Pl.'s Mot. 15-17; Pl.'s
Reply 1-2. This omission is puzzling, as the Court's own
review of the evidence reflects that Plaintiff at the very
least has suffered from recurrent pneumonia, one of the six
enumerated infections. Indeed, recurrent pneumonia is one of
the two severe impairments that the ALJ ascribed to
Plaintiff. AR 14.
even if Plaintiff had asserted that his recurrent pneumonia
matched or medically equaled the “pneumonia”
enumerated in Listing 14.07(A), his proof still would have
fallen short, for that provision requires more. To satisfy
subparagraph A, Plaintiff would also have to show
that his pneumonia was either resistant to treatment
or that the treatment for it “require[s]
hospitalization or intravenous treatment three or more times
in a 12-month period.” 20 C.F.R. § Pt. 404, Subpt.
P, App. 1, Pt. A2 (2016). To this point, Plaintiff contends
only that his regular intravenous treatment should meet that
test. After all, he receives such treatment as often as
weekly. See Pl.'s Mot. 15-16. But the record
makes clear that he receives that treatment for his immune
deficiency rather than for pneumonia. See, e.g., AR
337 (reflecting that immunotherapy prescribed for antibody
production deficiency). Plaintiff points to no evidence in
the record (nor did the Court locate any) demonstrating that
his intravenous injections were or are prescribed to treat
pneumonia. Consequently, this Court concludes that the ALJ
did not err in finding that Plaintiff did not satisfy his
burden under Listing 14.07(A).
the ALJ was correct in finding that Plaintiff also did not
satisfy the criteria under Listing 14.07(C) is a closer
question but one the Court answers in a similar manner. That
subparagraph requires the following:
Repeated manifestations of an immune deficiency disorder,
with at least two of the constitutional symptoms or signs
(severe fatigue, fever, malaise, or involuntary weight loss)
and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social function.
3. Limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2 (2016).
point, Plaintiff contends only that he “provided ample
evidence of marked limitation in his activities of daily
living due to severe fatigue and malaise.” Pl.'s
Mot. 16 (citing his treating physician's notes at ¶
316, 318, 362, as well as his own testimony and other reports
at ¶ 40-41, 240, 253, 288). In so doing, Plaintiff has
limited his claim to whether the evidence showed severe
fatigue and malaise as his two “constitutional symptoms
or signs” and a “marked” limitation in his
activities. For her part, the Commissioner responds only by