United States District Court, D. New Mexico
GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Dennis Perrin's
(“Plaintiff's”) “Motion to Reverse and
Remand for a Rehearing, With Supporting Memorandum”
(“Motion”), filed on February 13, 2017. ECF No.
18. The Commissioner responded on April 14, 2017. ECF No. 20.
Plaintiff filed his Reply on May 5, 2017. ECF No. 23. Having
meticulously reviewed the entire record and the parties'
briefing, the Court finds that Plaintiff's Motion is not
well taken and that the Administrative Law Judge's
(“ALJ's”) ruling should be
AFFIRMED. Therefore, and for the further
reasons articulated below, the Court will
DENY Plaintiff's Motion.
filed an application for supplemental security income on
January 6, 2009, alleging disability that started on June 1,
2001. AR 359. Plaintiff's application was denied on April
29, 2009, and again on reconsideration on July 8, 2010. AR
359. Plaintiff had a hearing on May 30, 2012 before ALJ Ann
Farris, and on June 7, 2012, ALJ Farris issued her opinion
concluding that Plaintiff was not disabled. AR 413. Plaintiff
then applied for review by the Appeals Council and submitted
additional evidence that was not available at the time of the
hearing, but the Appeals Council denied the request for
review. AR 413. Plaintiff then appealed to this Court, which
concluded that the Appeals Council should have considered
Plaintiff's additional evidence, and remanded for an
additional hearing. AR 427, 430. The Appeals Council then
vacated ALJ Farris's opinion, and Plaintiff had another
hearing on January 19, 2016, in front of ALJ D'Lisa
Simmons. AR 359, 371. During that hearing, Plaintiff and
vocational expert Mary D. Weber testified. AR 359. On March
1, 2016, ALJ Simmons issued her opinion concluding that
Plaintiff was not disabled. AR 370. There is no indication in
the record that Plaintiff filed a request for review by the
Appeals Council following ALJ Simmons' unfavorable
decision, which made ALJ Simmons's decision the final
decision of the Commissioner following remand. See
20 C.F.R. § 404.984(a), (d) (2010); Pl.'s Mot. 5,
ECF No. 18. Plaintiff then timely filed his appeal in this
Court on June 27, 2017. ECF No. 1.
sole argument on appeal is that ALJ Simmons failed to provide
adequate reasons for rejecting Dr. John Vigil's opinion
regarding Plaintiff's “work-like
capabilities.” See Pl.'s Mot. 23-27; AR
367. Plaintiff asserts that ALJ Simmons did not provide
“any analysis, legal or evidentiary basis to support
her contention” that Dr. Vigil relied on
Plaintiff's subjective report of symptoms and
limitations. Pl.'s Mot. 24; see AR 367.
Plaintiff further argues that ALJ Simmons did not provide
adequate explanation for why Dr. Vigil's opinion
regarding Plaintiff's work-like capabilities is
“vague, unsupported, and inconsistent with the medical
record as a whole.” AR 367; see Pl.'s Mot.
25. Although Plaintiff's diabetes and obstructive sleep
apnea improved in 2014 and 2015, Plaintiff argues that ALJ
Simmons did not explain how Dr. Vigil's opinion was
inconsistent with the record between 2009 and 2013.
See Pl.'s Mot. 25. Plaintiff also argues that
his diabetic peripheral neuropathy was not controlled in 2014
and 2015, that his neuropathy causes pain and loss of
sensation, that ALJ Simmons “misapprehends the nature
of diabetic peripheral neuropathy, ” and
“overstep[ped] her bounds into the province of
medicine.” Pl.'s Mot. 26-27.
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)). 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
the review of the ALJ's legal decisions, the Court
reviews “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).
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
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) (2016). 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'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. §§ 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 her past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from
performing her past work, then she 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 Cir. 1987).
claimant cannot return to his or her 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
THE ALJ'S DECISION
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since January 6, 2009. AR 361.
At step two, the ALJ found that Plaintiff had the following
severe impairments: morbid obesity, diabetes mellitus with
peripheral neuropathy, personality disorder, anxiety,
depression, and an unspecified learning disorder. AR 361. The
ALJ also found that Plaintiff was diagnosed with the
following non-severe health conditions, which she considered
in determining Plaintiff's RFC: obstructive sleep apnea,
Guillain-Barre syndrome, narcolepsy, vision loss, and recent
foot surgery. AR 362. In so finding, the ALJ noted that
“[Plaintiff] did not allege any symptoms or functional
limitations as a result of these impairments, nor did the
record show[ ] any examination findings which would support
any functional limitations.” AR 362. The ALJ noted that
Plaintiff's obstructive sleep apnea was much improved,
according to the record, with use of a Continuous Positive
Airway Pressure (“CPAP”) machine. AR 362. The ALJ
also considered Plaintiff's foot surgery, noting that
“there was no indication [Plaintiff]'s foot surgery
would restrict [Plaintiff] for 12 consecutive months or that
he would not have a full recovery as required for a health
condition to be considered a severe impairment.” AR
362. The ALJ continued, stating that even though she
determined these health conditions to be non-severe,
“the limiting effects of all [Plaintiff's]
impairments, even those that were not severe, were considered
in determining [Plaintiff's] residual functional capacity
assessed below.” AR 362. Also at step two, the ALJ
discussed Plaintiff's alleged degenerative joint disease,
which she deemed to be non-medically determinable because
“[Plaintiff] failed to submit medical evidence
supporting his allegation[.]” AR 362-63.
three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR
363. In doing so, the ALJ “gave particular
consideration to the obesity and diabetes listings, ”
but found that “the medical evidence did not document
listing-level severity.” AR 363.
four, the ALJ determined Plaintiff's RFC as the
I found [Plaintiff] had the residual functional capacity to
perform sedentary work as defined in 20 CFR 416.967(a),
except he could lift, carry, push, and pull 10 pounds,
frequently and less than 10 pounds, occasionally; he could
sit 6 hours in an 8-hour workday; he could stand and/or walk
2 hours in an 8-hour workday; he could frequently perform
handling and fingering; he could never crouch, crawl, or
kneel, he could occasionally climb ramps and stairs; he could
never climb ropes, ladders, and scaffolding; he could never
work around dangerous machinery or unprotected heights. Due
to moderate limitations in social functioning and
concentration, persistence, or pace, [Plaintiff] was limited
to performing simple, routine, repetitious work with one,