United States District Court, D. New Mexico
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
VÁZQUEZ, United States District Judge
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.
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 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). 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).
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.
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
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.
Law and Sequential Evaluation Process
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.
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
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.
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. 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.
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.
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.
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].
Vidmar found that remand pursuant to sentence six ...