United States District Court, D. New Mexico
CLINTON T. KERR, 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 for A Rehearing with Supporting
Memorandum” (“Motion”), filed on December
5, 2016. ECF No. 15. The Commissioner responded on February
6, 2017. ECF No. 17. Plaintiff replied on February 21, 2017.
ECF No. 18. Having meticulously reviewed the briefing and the
entire record, the Court concludes that the Commissioner
followed the correct legal standards and supported her
decision with substantial evidence. Therefore, and for the
further reasons articulated below, the Court will
DENY Plaintiff's Motion.
March 24, 2015, Plaintiff applied for disability insurance
benefits (“DIB”) and supplemental security income
(“SSI”), alleging disability beginning October
10, 2014. AR 210-22. Plaintiff alleged disability due to a
broken right leg, diabetes, attention deficit hyperactivity
disorder, and eye problems. AR 210-22. Plaintiff's
applications were denied initially on May 28, 2015 and upon
reconsideration on September 9, 2015. AR 78-79, 138-39.
Plaintiff requested a hearing before an ALJ, which was held
on March 16, 2016, before Administrative Law Judge
(“ALJ”) Eric Weiss. AR 158-59. Plaintiff
testified at the hearing, along with Leslie J. White, an
impartial vocational expert (“VE”). AR 40-77.
Michelle Baca, an attorney, represented Plaintiff at the
hearing. AR 19, 40.
April 27, 2016, ALJ Weiss issued his decision finding
Plaintiff not disabled and therefore not entitled to either
DIB or SSI. AR 16-31. Plaintiff requested review by the
Appeals Council, which was denied on June 14, 2016, making
the ALJ's decision the Commissioner's final decision
for purposes of this appeal. AR 1-3. Through new counsel,
Francesca J. MacDowell, Plaintiff timely appealed to this
Court. ECF No. 1.
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)).
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, 489 F.3d at
1084. 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 at 1214.
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). Ultimately, 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 at 760.
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 residual functional
capacity (“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 able to perform 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
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
SUMMARY OF ARGUMENTS
advances three arguments with several sub-arguments in favor
of reversing and remanding. First, Plaintiff argues the ALJ
erred by failing to include moderate limitations assessed by
consultative examiner B. Rudnick, M.D., in the RFC. Pl.'s
Mot. 5-8. Second, Plaintiff contends the ALJ's RFC is
contrary to law and not supported by substantial evidence.
Mot. 8-19. Specifically, Plaintiff argues: (1) the ALJ's
finding that Plaintiff can stand and walk for six hours is
not supported by substantial evidence; (2) the ALJ legally
erred by not including a vision limitation in the RFC; (3)
the ALJ legally erred by failing to include Dr. Rudnick's
assessed moderate limitations, which Plaintiff argues are
supported by other evidence; (4) the ALJ legally erred by
failing to take into account the combined effect of
Plaintiff's limitations; and (5) the ALJ legally erred by
relying on improper factors, i.e. Plaintiff's
noncompliance with prescribed treatment and Plaintiff's
daily activities. Pl.'s Mot. 8-19. Finally, Plaintiff
argues the ALJ erred by adopting the VE's testimony,
which Plaintiff contends conflicted with Dr. Rudnick's
assessed limitations. Pl.'s Mot. 19-22.
Commissioner first responds that, because the ALJ's RFC
was consistent with Dr. Rudnick's narrative opinion, the
ALJ did not commit reversible error. Def.'s Resp. 5-6.
Second, the Commissioner argues the ALJ's RFC, including
the ALJ's determination of Plaintiff's non-severe
impairments, is supported by substantial evidence. Def.'s
Resp. 7-12. Regarding the VE testimony, the Commissioner
disputes whether the ALJ was required to do more than ask the
VE if his testimony conflicted with the DOT and denies there
is a conflict between the RFC and the VE's testimony.
Def.'s Resp. 12-18.
April 27, 2016, the ALJ issued his decision finding Plaintiff
not disabled. AR 16-31. In so doing, the ALJ followed the
five-step sequential evaluation. At step one, the ALJ found
Plaintiff had not engaged in substantial gainful activity
since his alleged disability onset date. AR 20. At step two,
the ALJ determined Plaintiff has the following severe
impairments: right femur fracture status post open reduction
internal fixation; right ankle fracture; right knee
instability; mild bilateral knee osteoarthritis; attention
hyperactivity disorder; anxiety; and a bipolar disorder, not
otherwise specified. AR 20. The ALJ acknowledged Plaintiff
has several other impairments, but found them not severe. AR
20-21. These include: diabetes melitis; proliferative
diabetic retinopathy in both eyes following laser surgery;
hypertension; gastroesophageal reflux disease; and
amphetamine use in remission. AR 21.
three, the ALJ determined Plaintiff's impairments, both
singly and in combination, do not meet or medically equal the
severity of a Listing impairment. AR 22. At this step, the
ALJ found Plaintiff has only mild restrictions in daily
living and social functioning, and moderate limitations with
regard to concentration, persistence or pace. AR 23.
Regarding activities of daily living, the ALJ discussed
evidence from Plaintiff's friend Dana Romero,
Plaintiff's own statements, and the opinion of state
agency consultant B. Rudnick, M.D., that Plaintiff has only
mild limitations in this area of functioning. AR 22.
Similarly, the ALJ considered evidence of Plaintiff's
social functioning from Ms. Romero, Plaintiff's own
reporting, and notes by Mauricio Tohen, M.D., that Plaintiff
exhibited a “cheerful mood and a full affect.” AR
23. As for persistence and pace, the ALJ again relied on Ms.
Romero's report, as well as notes from Drs. Tohen and
Rudnick. AR 23.
to proceeding to step four, the ALJ found Plaintiff has the
RFC to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b). AR 23. The ALJ found
Plaintiff capable of lifting 20 pounds occasionally and 10
pounds frequently, as well as pushing and pulling the same.
AR 23. According to the ALJ, Plaintiff can both stand and
walk for up to six hours in an eight hour work-day while
taking normal breaks. Plaintiff may frequently stoop, but
only occasionally climb ramps or stairs, balance, kneel,
crouch, or crawl, and never climb ladders, ropes, or
scaffolds. AR 23. Plaintiff must also avoid more than
occasional exposure to extreme cold, heat, and unprotected
heights. AR 23. Finally, the ALJ found Plaintiff capable of
understanding, remembering, and carrying out simple
instructions and making commensurate work-related decisions,
adjusting to routine changes in work setting, frequently
interacting with supervisors, co-workers, and the public, and
maintaining concentration, persistence, and pace for two
hours at a time with normal breaks. AR 23.
based his RFC on Plaintiff's statements as well as the
objective medical evidence. AR 24. The ALJ began his
discussion with the events of October 10, 2014, when
Plaintiff injured his knee after falling off a mechanical
bull. AR 24. Plaintiff was hospitalized for four days, during
which he underwent open reduction internal fixation of his
right femur fracture. AR 24. On November 11, 2014,
examination showed no evidence of either a superficial or
deep obstruction. AR 24. Then, on January 5, 2015, Plaintiff
went to the emergency room complaining of right ankle pain
after falling at Wal-Mart. AR 24. The ER attending noted
tenderness up and down Plaintiff's leg and ankle, and
x-rays showed an ankle fracture. AR 25. Plaintiff was
discharged with medication and instructions to use a walker.
AR 25. January 2015 x-rays of Plaintiff's femur showed no
acute abnormalities. AR 25.
next discussed treatment records from Michael W. Foutz, M.D.
AR 25. Plaintiff saw Dr. Foutz from November 13, 2014,
through January 8, 2015, primarily regarding his diabetes.
Plaintiff presented with complaints of left and right leg
swelling, difficulty sleeping, urinary retention, and both
low and high blood sugar readings. AR 25. On November 13,
2014, Dr. Foutz diagnosed Plaintiff with cellulitis, an
abscess on his foot, and diabetes. AR 25. On November 24,
2014, Plaintiff's blood pressure decreased on a diuretic
and the redness on his foot had resolved. AR 25. Further
records show Plaintiff reported feeling better despite
problems with his eye, good results with Clonazepam, and no
physical abnormalities on examination. AR 25.
the ALJ discussed medical evidence of Plaintiff's eye
impairment. The ALJ noted Plaintiff's long history of
bilateral proliferative retinopathy and chronic vitreous
hemorrhage in his right eye. AR 25. Once again, the ALJ noted
Plaintiff's subjective complaints, treatment, and
results. AR 25-26. Following surgery, Plaintiff's
uncorrected vision in his right eye improved from 20/200 to
20/100, and by October 20, 2015, Plaintiff suffered only mild
vitreous hemorrhage in his right eye. AR 26.
then considered records from Abhishek Ahuja, M.D., for
treatment rendered from July 2014 to October 2015. AR 26.
Plaintiff presented with high blood sugar and right leg,
knee, and ankle pain. AR 26. On April 2, 2015, Dr. Ahuja
performed a physical examination and noted no acute distress
or pain with movements at the knee. AR 26. On October 2,
2015, Plaintiff walked with a normal gait and without ...