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Baca v. Berryhill

United States District Court, D. New Mexico

July 31, 2017

FRANCISCO ESTEVAN BACA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          William P. Lynch United States Magistrate Judge

         Francisco Baca began receiving supplemental security income (SSI) as minor, based on an application filed in 2005. When he reached the age of eighteen, the Social Security Administration (SSA) was required to redetermine his eligibility for continuing benefits. 20 C.F.R. § 416.967. During that redetermination, an Administrative Law Judge (ALJ) found that Baca is not disabled under the adult standards and found him ineligible for SSI. (Administrative Record (AR) 20). Baca filed for review by the Appeals Council. The Appeals Council denied review on February 3, 2016, but added additional exhibits to the AR. (AR 1, 6.) Baca then filed his motion to reverse and remand in this Court. (Doc. 21.) The Commissioner of the SSA filed a response (Doc. 25) and Baca filed a reply (Doc. 26). For the reasons explained below, I deny Baca's motion to remand and dismiss this case with prejudice.

         Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision is the SSA's final decision. In reviewing the ALJ's decision, I must determine whether it is supported by substantial evidence in the record and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). “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) (quotation omitted). A decision is not based on substantial evidence if other evidence in the record overwhelms it or if there is a mere scintilla of evidence supporting it. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). Substantial evidence does not, however, require a preponderance of the evidence. U.S. Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir. 2003). I must meticulously examine the record, but I may neither reweigh the evidence nor substitute my discretion for that of the Commissioner. Hamlin, 365 F.3d at 1214. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show us that she has done so . . . .” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Sequential Evaluation Process

         The SSA 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. § 416.920(a)(4) (2016). The same process is used when redetermining an individual's eligibility for continuing benefits when that person turns eighteen. 42 U.S.C. § 1382c(a)(3)(H)(iii); see also, Wagner v. Comm'r of Soc. Sec., 2010 WL 3036763, at *3 (N.D. Ohio July 15, 2010). If a finding of disability or nondisability is directed at any point, the ALJ will not proceed through the remaining steps. Thomas, 540 U.S. at 24. 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. § 416.920(a)(4), & Pt. 404, Subpt. P, App'x 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 residual functional capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. § 416.920(e). The ALJ then determines the physical and mental demands of the claimant's past relevant work in phase two of the fourth step and, in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to see if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. § 416.920(f). If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R. § 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). If the claimant cannot return to his past work, then the Commissioner bears the burden, at the fifth step, of showing that the claimant is 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 detail).

         Discussion

         Baca, a twenty-three year old male with a high school education and no relevant work experience, argues that the ALJ made several errors requiring remand of his case. The ALJ found that Baca has the RFC to “perform light work . . . [and] make simple work related decisions, with few workplace changes. However, he should not be required to work at a production rate pace, or perform tandem tasks.” (AR 16.) She also found that Baca's “statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible.” (AR 17.) At step five, the ALJ relied on a vocational expert's (VE) testimony to determine that Baca can do other jobs existing in substantial numbers in the economy. (AR 20.) Therefore, the ALJ determined that Baca is not disabled.

         Baca's records begin in 2002. I have reviewed the entire AR, but discuss only those facts and records relevant to the disposition of this case.

         Baca alleges that the ALJ erred in several regards at step four: 1) the ALJ stated she gave an agency non-examining physician's opinion “great weight, ” but failed to include all of the identified limitations in the RFC or explain why some limitations were left out; 2) the ALJ erred by adopting the opinions of non-examining physicians and failing to consider them in light of later developed evidence, in violation of Social Security Ruling (SSR) 96-6p, 1996 WL 374180 (July 2, 1996)[1]; 3) the ALJ improperly discounted the third party statement of Baca's grandmother, who has also been his guardian; 4) the ALJ erred in her credibility determination of Baca by addressing generalities rather than specific facts and the ALJ cited records in the AR that do not support the ALJ's conclusions; and 5) the ALJ's RFC determination that Baca's only limitation as to concentration is that he cannot work at a production rate pace is not supported by substantial evidence and is impermissibly vague. Even if the ALJ did not err at step four, Baca contends that the ALJ committed additional reversible errors at step five, specifically: 1) the ALJ erred in relying on the VE testimony because the proposed RFC failed to include all of Baca's limitations; 2) the VE's opinion was contrary to the “no production rate pace” limitation in Baca's RFC and the ALJ failed to explain or clarify this discrepancy; 3) the ALJ was required to, but did not, clarify the inconsistencies between the VE's testimony and the RFC; and 4) the ALJ found that Baca could perform other jobs existing in the economy even though he requires special supervision and the VE testified that requiring special supervision eliminates competitive work.

         In December 2012, state agency non-examining provider, Cathy Simutis, Ph.D., reviewed Baca's records and filled out a Mental RFC Assessment (AR 348-50) and a Psychiatric Review Technique form (AR 352-62). Dr. Simutis indicated that Baca experiences moderate limitations in his ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (AR 348-49.) In Section III of the Mental RFC Assessment, Dr. Simutis wrote that “Claimant can understand, remember, and carry out simple instructions, make simple decisions, attend and concentrate for 2 hours at a time, interact adequately with co-workers and supervisors, and respond appropriately to changes in a routine work setting.” (AR 350.) Dr. Simutis indicated that she reviewed the third party function reports and Baca's function reports, as well as a teacher questionnaire and individualized education plan, and the report of a psychological consultative examination. (AR 364.)

         When considering Dr. Simutis's opinion, the ALJ stated that she gave it great weight and agreed with the

view that the claimant remains capable of performing simple, unskilled work, as I agree that the claimant remains capable of engaging in a numerous degree of activities that have included going to the gym, socializing with friends, playing video games, skateboarding, maintaining his personal care, preparing simple meals, ...

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