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Lopez v. Berryhill

United States District Court, D. New Mexico

September 30, 2017

IGNACIO GREG LOPEZ, Plaintiff,
v.
NANCY A BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff Ignacio Greg Lopez's Motion to Reverse and Remand to Agency for a Rehearing with Supporting Memorandum. Doc. 18. An Administrative Law Judge (ALJ) found Plaintiff not disabled. Plaintiff argues (1) the ALJ committed error by not applying the correct legal standards at step two of the Sequential Evaluation Process; (2) Plaintiff's determined residual functioning capacity cannot stand in light of information from Dr. John R. Vigil, whose testimony the Appeals Council made part of the record; and (3) the ALJ failed to apply the correct legal analysis at step four and substantial evidence does not support the ALJ's determination that Plaintiff can return to past relevant work. Doc. 18 at 1. For the reasons below, the Court finds that Plaintiff's arguments are not well-taken and DENIES Plaintiff's motion.

         I. BACKGROUND

         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on May 17, 2013 (AR 100) and a Title XVI application for supplemental security income on June 5, 2013 (AR 101), in which he alleged disability beginning August 28, 2012 (AR 80, 90). ALJ Myriam C. Fernandez Rice held a hearing on November 12, 2015. AR 25. At some point, Plaintiff's counsel referred Plaintiff to Dr. Vigil for an independent medical evaluation and functional evaluation for disability. AR 493. On December 3, 2015, Plaintiff requested the ALJ to keep the record open to receive information from Dr. Vigil[2] (AR 41), who examined Plaintiff on December 7, 2015 (AR 493). As part of her January 5, 2016 decision, the ALJ denied Plaintiff's request to keep the matter open and receive Dr. Vigil's evaluation. AR 26. On April 7, 2016, the Appeals Council made Dr. Vigil's evaluation part of the record, but denied Plaintiff's request for review. AR 5, 8.

         Because the parties are familiar with the record in this case and have set forth Plaintiff's medical history in their briefs, the Court will not repeat that medical history. The Court, however, has reviewed Plaintiff's entire medical history and will cite to portions of it throughout this Opinion.

         II. APPLICABLE LAW

         A. Disability Determination Process

         A claimant is considered disabled for purposes of Social Security disability insurance benefits or supplemental security income if that individual 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); see also 42 U.S.C. § 1382c(a)(3)(A). The Social Security Commissioner has adopted a five-step sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R. §§ 404.1520, 416.920. The steps of the analysis are as follows:

(1) Claimant must establish that she is not currently engaged in “substantial gainful activity.” If claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or mental impairment . . . or combination of impairments” that has lasted for at least one year. If claimant is not so impaired, she is not disabled and the analysis stops.
(3) If claimant can establish that her impairment(s) are equivalent to a listed impairment that has already been determined to preclude substantial gainful activity, claimant is presumed disabled and the analysis stops.
(4) If, however, claimant's impairment(s) are not equivalent to a listed impairment, claimant must establish that the impairment(s) prevent her from doing her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled and the analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that claimant is able to “make an adjustment to other work.” If the Commissioner is unable to make that showing, claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).

         B. Standard of Review

         A court must affirm the denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court's disagreement with a decision is immaterial to the substantial evidence analysis. A decision is supported by substantial evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] 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)).

         Similarly, even if a court agrees with a decision to deny benefits, if the ALJ's reasons for the decision are improper or are not articulated with sufficient particularity to allow for judicial review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific weighing of the evidence and “the record must demonstrate that the ALJ considered all of the evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence in the record. But, it does require that the ALJ identify the evidence supporting the decision and discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.

         III. ANALYSIS

         Plaintiff raises a number of issues for review. First, Plaintiff argues that the ALJ did not apply the correct legal standards at step two of the sequential evaluation process. Doc. 18 at 17-19. Second, Plaintiff contends that the medical source statement of examining physician Dr. John Vigil undercuts the ALJ's RFC determination. Id. at 19-23. Third, Plaintiff argues that the ALJ's finding that Plaintiff is capable of returning to his past relevant work is not supported by substantial evidence or in compliance with the appropriate legal standards. Id. at 23-26. The Court will consider these issues in turn.

         A. The ALJ Applied the Correct Legal Standards at Step Two

         Plaintiff argues that, in rejecting Plaintiff's claim of urinary incontinence[3] as a severe impairment, the ALJ did not apply the correct legal standards at step two of the Sequential Evaluation Process. See Doc. 18 at 17-19. At step two, an ALJ must consider whether an impairment is severe. Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016) (citing 20 C.F.R. § 416.920(a)(4)(ii)). “An impairment is ‘severe' if it ‘significantly limits [a claimant's] physical or mental ability to do basic work activities.' 20 C.F.R. § 404.1520(c). A claimant must make only a de minimis showing to advance beyond step two.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Nonetheless, ...


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