United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff Anthony
Louis Yotter, II's, Motion to Reverse and Remand for
a Rehearing with Supporting Memorandum, (Doc. 17), filed
September 8, 2017; Defendant Commissioner Nancy A.
Berryhill's Brief in Response to Plaintiff's
Motion to Reverse and Remand the Agency's Administrative
Decision, (Doc. 20), filed November 7, 2017; and Mr.
Yotter's Reply in Support of Motion to Reverse and
Remand for a Rehearing, (Doc. 21), filed November 17,
30, 2013, Mr. Yotter filed an application for disability
insurance benefits alleging disability beginning June 12,
2009. (AR 94-95). Mr. Yotter's application was denied
initially on October 11, 2013, (AR 105-06), and upon
reconsideration on May 8, 2014, (AR 121-22). Mr. Yotter
requested a hearing before an Administrative Law Judge
(“ALJ”), which was granted, and a hearing was
held on November 12, 2015, before ALJ Eric Weiss. (AR 57-93).
Mr. Yotter and his wife, Angie Nunez-Yotter, testified at the
hearing, along with Karen Provine, an impartial vocational
expert (“VE”). (AR 57). Michael Armstrong, Mr.
Yotter's current counsel, represented him at the hearing.
January 7, 2016, ALJ Weiss issued his decision finding Mr.
Yotter not disabled between his alleged disability onset date
and the date he was last insured. (AR 26-51). Mr. Yotter
requested review by the Appeals Council, (AR 22), which was
denied, (AR 1-4), making the ALJ's decision the
Commissioner's final decision for purposes of this
Yotter has appealed to this Court alleging the ALJ committed
reversible error by: (1) improperly evaluating and weighing
the opinions of Mr. Yotter's treating physicians; (2)
failing to analyze medical opinions at step three of the
sequential evaluation process; (3) applying an incorrect
legal standard when evaluating the opinions of state agency
non-examining consultants; and (4) improperly questioning the
VE. (Doc. 17 at 2). The Court has considered the Motion,
Response, Reply, and the relevant law. Additionally, the
Court has meticulously reviewed the entire administrative
record. Because the ALJ did not err in evaluating and
weighing the opinions of Mr. Yotter's treating
physicians, and any other error committed was harmless, the
Court finds that Mr. Yotter's Motion should be
Standard of Review
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); Hamilton v. Sec'y of Health & Human
Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). 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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). The ALJ's failure to
apply the correct legal standards or demonstrate that he has
done so is grounds for reversal. Winfrey v. Chater,
92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v.
Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court
should meticulously review the entire record but should
neither re-weigh the evidence nor substitute its judgment for
the Commissioner's. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court's review is
limited to the Commissioner's final decision, 42 U.S.C.
§ 405(g), which is generally the ALJ's decision,
rather than the Appeals Council's denial of review.
O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
must include “anything that may undercut or detract
from the ALJ'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
ALJ]'s 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)).
Applicable Law and Sequential Evaluation Process
purposes of disability insurance benefits, a claimant
establishes a disability when she 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) (2015), 42
U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §
416.905(a). In order to determine whether a claimant is
disabled, the Commissioner follows a five-step sequential
evaluation process (“SEP”). Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (2) she 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 either (3) her impairment(s) either
meet or equal one of the “Listings” of presumptively
disabling impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §
416.920(a)(4)(i-iv); see Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the
claimant cannot engage in past relevant work, the ALJ will
proceed to step five of the evaluation process. At step five
the Commissioner must show the claimant is able to perform
other work in the national economy, considering the
claimant's RFC, age, education, and work experience.
Grogan, 399 F.3d at 1261.
Yotter alleged disability due to post-traumatic stress
disorder (“PTSD”), depression, anxiety, bipolar
disorder, shoulder impingement/bursitis, hearing problems,
right eye problems, gastrointestinal problems, and high blood
pressure. (AR 208). At step one, the ALJ determined Mr.
Yotter did not engage in substantial gainful activity between
his alleged disability date and the last date he was insured.
(AR 28). At step two, the ALJ found Mr. Yotter has the
following severe impairments: PTSD, bipolar II disorder not
otherwise specified, mood disorder not otherwise specified,
left and right shoulder and biceps tendinitis/bursitis, and
lumbar disc herniation. Id.
three, the ALJ found none of Mr. Yotter's impairments,
either singly or in combination, met or medically equaled a
Listed impairment. (AR 29). Regarding Mr. Yotter's mental
impairments, the ALJ found Mr. Yotter has only moderate
impairments in daily living, social functioning, and
concentration, persistence, and pace, and no prolonged
episodes of decompensation. (AR 30-31). The ALJ focused on
Mr. Yotter's own testimony, though he did note that two
psychotherapists consistently described Mr. Yotter as
friendly, cooperative, candid, and actively engaged in
therapy. (AR 30).
to step four, the ALJ concluded Mr. Yotter has the residual
functional capacity to perform light work with the following
limitations: Mr. Yotter may frequently stoop, occasionally
climb ladders, but never climb ropes or scaffolds;
occasionally reach overheard; and frequently reach front and
laterally with his arms. (AR 32). As for nonexertional
impairments, Mr. Yotter can adjust to routine changes in work
settings and maintain concentration, persistence, and pace
for two hours at a time with normal breaks, but he is limited
to understanding, remembering, and carrying out simple
instructions and making commensurate work-related decisions.
Id. Finally, Mr. Yotter “is able to interact
occasionally with supervisors, co-workers, and the
formulating Mr. Yotter's RFC, the ALJ exhaustively
discussed the testimony at the hearing and the medical
evidence of record, including Mr. Yotter's and his
wife's statements, psychotherapy treatment notes from
treating physicians Jolanta Gurdek, M.D., and Karen Cusack,
Ph.D., and the opinions of agency non-examining consultants.
(AR at 33-46). Ultimately, the ALJ gave the opinions of the
agency consultants “great weight” because they
were consistent with the evidence as a whole. (AR 46). On the
other hand, the ALJ discounted Mr. Yotter's and his
wife's statements because they were not consistent with
the record. (AR 35, 47).
Dr. Cusack, the ALJ gave her opinion limited weight after
finding that it was inconsistent with the medical record as a
whole and her own treatment notes. Dr. Cusack opined that Mr.
Yotter is markedly limited in activities of daily living and
social functioning. (AR 47, 714-15). But, the ALJ noted that
Dr. Cusack indicated Mr. Yotter has only slight or moderate
limitations elsewhere in her assessment. (AR 711, 713).
Further, Dr. Gurdek did not find marked limitations in daily
living, and Dr. Cusack's own treatment notes showed Mr.
Yotter improved his anger management, ...