United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR, United States Magistrate Judge
MATTER is before me on Plaintiff's Motion to Dispute the
Transcript of Record [Doc. 21], filed on May 3, 2017, and on
Plaintiff's Motion to Reverse or Remand Administrative
Agency Decision, [Doc. 24], filed on June 20, 2017. Briefing
is complete on both motions. [Docs. 22, 23, 27, 28]. The
Honorable Martha Vázquez, United States District
Judge, referred the case to me for proposed findings and a
recommended disposition. [Doc. 25]. I recommend construing
Plaintiff's Motion to Dispute the Transcript of Record
[Doc. 21] as a motion to remand pursuant to 42 U.S.C. §
405(g) (sentence six) for new and material evidence. However,
I recommend denying the motion because the evidence is either
immaterial or duplicative. I further recommend denying
Plaintiff's Motion to Reverse and Remand [Doc. 24]
because Plaintiff fails to show that the Administrative Law
Judge's (“ALJ”) decision is not supported by
substantial evidence or is the product of an incorrect legal
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). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). Courts
must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that
of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. The 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.” Id. While a court
may not reweigh 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
[Commissioner]'s findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“The 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) (quoting
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
failure to apply the correct legal standard 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
Law and Sequential Evaluation Process
order to qualify for disability benefits, a claimant must
establish that he 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); 20 C.F.R.
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) he is not engaged in
“substantial gainful activity”; and (2)
he 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 (3) his impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) he is unable to perform his “past
relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv);
Grogan, 399 F.3d at 1261. If he cannot show that his
impairment meets or equals a Listing, but he proves that he
is unable to perform his “past relevant work, ”
the burden of proof then shifts to the Commissioner, at step
five, to show that the claimant is able to perform other work
in the national economy, considering his residual functional
capacity (“RFC”), age, education, and work
was born on December 8, 1953. Tr. 44. He served in the Air
Force in the early 1970s where he was injured. Tr. 25. As a
result, Plaintiff suffered back and mental health problems.
Plaintiff reports that despite his conditions, he worked for
30 years at the Sandoval County Assessor's Office. Tr.
24, Tr. 855-56, 338-39. He retired on December 31, 2009.
Plaintiff insists that he wanted to continue working for
another ten years, but his impairments prevented him from
continuing to work. He also reports that he retired due to
“political pressure” from the Assessor in office
at the time. [Doc. 1] at 2; [Doc. 24] at 2.
applied for a period of disability and disability insurance
benefits on January 7, 2013. Tr. 14. He alleged a
disability-onset date of November 13, 2013. Id. His
claims were denied initially and on reconsideration.
Plaintiff requested a hearing before an ALJ. Id. ALJ
Frederick E. Upshall, Jr., held a hearing on October 21,
2015, in Albuquerque, New Mexico. Tr. 14, 39. Plaintiff
appeared in person with his attorney. Tr. 14, 39-42. The ALJ
took testimony from Plaintiff and an impartial vocational
expert (“VE”), Leslie J. White. Tr. 10, 63- 65.
The ALJ also considered the VE's responses to the
ALJ's post-hearing, written interrogatories. Tr. 507-13;
see Tr. 14.
issued his unfavorable decision on June 6, 2016. Tr. 29.
Initially, the ALJ found that Plaintiff met the insured
status requirements through December 31, 2015. Tr. 17. At
step one he found that Plaintiff had not engaged in
substantial gainful activity since the onset date of his
alleged disability. Id. Because Plaintiff had not
engaged in substantial gainful activity for at least 12
months, the ALJ proceeded to step two. Id. There he
found that Plaintiff suffered from the following severe
impairments: “degenerative disc disease, osteoarthritis
in right knee and hip, depression, and posttraumatic stress
disorder (PTSD).” Id. At step three the ALJ
determined that none of Plaintiff's impairments, alone or
in combination, met or medically equaled a Listing. Tr.
none of Plaintiff's impairments met or medically equaled
a Listing, the ALJ went on to assess Plaintiff's RFC. Tr.
19-27. The ALJ found that, through his date last insured:
[Plaintiff] had the [RFC] to perform a range of medium work
as defined in 20 [C.F.R. §] 404.1567(c). He can lift up
to 50 pounds occasionally and is able to lift and carry up to
25 pounds frequently. He is able to stand and/or walk for
approximately 6 hours in an 8 hour workday, and is able to
sit for approximately 6 hours in an 8 hour workday, with
normal breaks. Pushing and pulling are limited only by the
limitation on [Plaintiff]'s ability to lift and carry. He
can frequently climb ladders, ropes or scaffolds, climb ramps
or stairs, kneel and crawl. He is able to stoop and crouch
occasionally. There are no manipulative or environmental
limitations. [Plaintiff] is limited to unskilled work,
involving only simple work-related decisions, with few, if
any, changes in the work setting. He is limited to occasional
interaction with the public, incidental to the work
performed, and occasional interaction with co-workers.
Supervision should be occasional, simple and direct.
Tr. 19. At step four the ALJ found that Plaintiff could not
return to his past relevant work. Tr. 27. Accordingly, the
ALJ proceeded to step five, where he relied on testimony by
the VE to find that, based on Plaintiff's age, education,
work experience, and RFC, he was capable of performing other
jobs that exist in significant numbers in the national
economy. Tr. 28-29. Ultimately, the ALJ found that Plaintiff
was not under a disability as defined by the Act during the
relevant time period, November 13, 2013, through December 31,
2015. Tr. 29. Plaintiff requested review from the Appeals
Council, but that request was denied on July 28, 2016. Tr. 1.
Plaintiff filed the instant action on October 4,
2016. [Doc. 1].
Motion to Dispute the Transcript of Record [Doc. 21] should
be construed as a motion to remand pursuant to § 405(g)
(sentence six). On careful review of all the evidence, I find
that none of the evidence warrants remand. Additionally, I
find that the ALJ's decision is supported by substantial
evidence and is free of legal error. Remand is not warranted
on any basis.
Plaintiff fails to show that remand is appropriate under
six of 42 U.S.C. § 405(g) provides that a district
may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence
into the record in a prior proceeding . . . .
42 U.S.C. § 405(g). After a sentence six remand, the
agency then assesses the new evidence, makes findings of
fact, and issues a decision that is then subject to review by
the court. Id. However, when ordering sentence six
remand, the court does not address the merits of the
agency's decision itself. Melkonyan v. Sullivan,
501 U.S. 89, 98 (1991); Pettyjohn v. Shalala, 23
F.3d 1572, 1574 (10th Cir. 1994) (in a sentence ...