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Perrin v. Berryhill

United States District Court, D. New Mexico

November 9, 2017

DENNIS PERRIN, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         I. BACKGROUND

         Plaintiff 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.

         II. PLAINTIFF'S CLAIM

         Plaintiff's 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.

         III. APPLICABLE LAW

         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[1] 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.”)

         The 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 at 1214.

         As for 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).

         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.

         B. Sequential Evaluation Process

         The SSA 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).

         If the 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 detail).

         IV. THE ALJ'S DECISION

         At step 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[2], 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.

         At step 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.

         At step four, the ALJ determined Plaintiff's RFC as the following:

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, two, ...

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