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Rivera v. Berryhill

United States District Court, D. New Mexico

January 17, 2018

DONALD RIVERA, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND DENYING PLAINTIFF'S MOTION TO REVERSE OR REMAND ADMINISTRATIVE AGENCY DECISION

          MARTHA VÁZQUEZ, United States District Judge

         THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition [Doc. 30] (“PF&RD”), issued on November 6, 2017. At issue are two motions filed by Plaintiff: one requests remand for consideration of new evidence, and the other challenges the Administrative Law Judge's (“ALJ”) decision. [Docs. 21, 24]. On reference by the undersigned, [Doc. 25], the Honorable Stephan M. Vidmar, United States Magistrate Judge, recommended denying both motions, [Doc. 30].

         As to the first motion (Plaintiff's Motion to Dispute the Transcript of Record [Doc. 21]), Judge Vidmar recommended construing it as a motion to remand pursuant to 42 U.S.C. § 405(g) (sentence six) for new and material evidence. Judge Vidmar recommended denying the motion because the evidence was either immaterial or duplicative. [Doc. 30]. As to the second motion (Plaintiff's Motion to Reverse and Remand [Doc. 24]), Judge Vidmar recommend denying it because Plaintiff had failed to show that the ALJ's decision was not supported by substantial evidence or was the product of an incorrect legal standard. Plaintiff timely objected to the PF&RD. [Doc. 31]. On de novo review of the portions of the PF&RD to which Plaintiff objects, the Court will overrule the objections, adopt the PF&RD, and deny Plaintiff's Motion to Reverse or Remand.

         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).

         Because Plaintiff is proceeding pro se, the Court construes his filings liberally and holds them to a less stringent standards than those filed by lawyers. See Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Nevertheless Plaintiff must follow the same rules of procedure that govern other litigants, and the Court may not assist Plaintiff by constructing arguments for him. See id.

         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. Yet, 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”), Mary D. Weber. 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. Relying on testimony by the VE, the ALJ found that, based on Plaintiff's age, education, work experience, and RFC, Plaintiff 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].

         Magistrate Judge's PF&RD

         Judge Vidmar recommended that Plaintiff's Motion to Dispute the Transcript of Record [Doc. 21] be construed as a motion to remand pursuant to § 405(g) (sentence six). He carefully reviewed all the evidence and found that none warranted remand. Further, Judge Vidmar found that the ALJ's decision was supported by substantial evidence and free of legal error. He found that remand was not warranted on any basis. [Doc. 30].

         Judge Vidmar found that remand pursuant to sentence six ...


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