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Rivera v. Berryhill

United States District Court, D. New Mexico

November 6, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.


          STEPHAN M. VIDMAR, United States Magistrate Judge

         THIS 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.

         Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] 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).

         “Substantial 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. 2004)).

         “The 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 omitted).

         Applicable Law and Sequential Evaluation Process

         In 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. § 404.1505(a).

         When 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 experience. Id.

         Procedural Background

         Plaintiff 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.

         Plaintiff 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.[3] 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.

         The ALJ 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. 17-19.

         Because 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.[4] [Doc. 1].


         Plaintiff's 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.

         I. Plaintiff fails to show that remand is appropriate under sentence six.

         Sentence six of 42 U.S.C. § 405(g) provides that a district court:

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 ...

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