United States District Court, D. New Mexico
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Mark Ayers, Jr.'s
(“Plaintiff's”) “Motion to Reverse and
Remand for Rehearing, With Supporting Memorandum”
(“Motion”), filed on May 10, 2017. ECF No. 20.
The Commissioner responded on July 7, 2017. ECF No. 22.
Plaintiff filed his Reply on July 19, 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 Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on January 2, 2013. Administrative R.
(“AR”) 11. Plaintiff alleged a disability onset
date of July 1, 2011. AR 11. The Social Security
Administration (“the SSA”) denied both claims on
April 25, 2013, and again upon reconsideration on September
4, 2013. AR 11. Plaintiff then requested a hearing, which was
held in front of Administrative Law Judge (“ALJ”)
Frederick E. Upshall, Jr. on April 16, 2015. AR 11. Plaintiff
appeared from Albuquerque, New Mexico, while the ALJ presided
from El Paso, Texas. AR 11. Donna O. Johnson, a vocational
expert (“VE”), appeared at the hearing
telephonically and testified. AR 11. Plaintiff was
represented by counsel during the hearing. AR 11.
15, 2015, the ALJ issued his decision that Plaintiff was not
disabled from July 1, 2011, through the date of his decision.
AR 20. Plaintiff then requested that the SSA's Appeals
Council review the ALJ's decision, a request that was
denied on September 16, 2016. AR 1-5. As a consequence, the
ALJ's decision became the final decision of the
Commissioner. 20 C.F.R. § 422.210(a) (2016). Plaintiff
timely filed his appeal in this Court on October 20, 2016.
ECF No. 1.
argues that the ALJ's assessment of Plaintiff's
residual functioning capacity (“RFC”) was based
on improper weighing of medical source evidence, and that in
developing Plaintiff's RFC, the ALJ failed to explain how
he evaluated the evidence. Pl.'s Mot. 4, ECF No. 20.
Plaintiff also argues that the ALJ erred by not including any
physical limitations in Plaintiff's RFC and by not
finding any physical impairments to be severe. Id.
at 19-20. Finally, Plaintiff contends that the VE's
testimony cannot constitute substantial evidence to support
the ALJ's finding that Plaintiff is not disabled. See
Id. at 20.
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 his past relevant work to determine if the
claimant is still capable of performing his 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 his past work, then he 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 determined that Plaintiff met the insured status
requirements of the Social Security Act through September 30,
2016, and that Plaintiff had not engaged in substantial
gainful activity since July 1, 2011, the alleged disability
onset date. AR 13. At step two, the ALJ found that Plaintiff
had the following severe impairments: anxiety, depression,
attention deficit/hyperactivity disorder
(“ADHD”), and tumor removal/status-post tumor
surgery. AR 13. The ALJ also considered Plaintiff's
allegations of gout, elbow tendinitis, and back pain, but
found them to be non-medically determinable, and thus not
severe. AR 13. In addition, the ALJ found that the medical
evidence of record failed to show any evidence of stenosis or
arthritis to support Plaintiff's allegation of back pain,
and that Plaintiff's elbow condition did not meet the
durational requirement set forth by 20 C.F.R. § 404.1509
(2012). AR 13.
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
14. The ALJ specifically considered Listing 12.04 for
affective disorders such as depression, and Listing 12.06,
for anxiety disorders. Engaging in the required Psychiatric
Review Technique (“PRT”), the ALJ found that the
paragraph B criteria were not satisfied because
Plaintiff's mental impairments did not result in at least
two of the following limitations: marked restriction of
activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration. AR 14.
While the ALJ found that Plaintiff had moderate to marked
difficulties in concentration, persistence, or pace as part
of the PRT, the ALJ found that Plaintiff had no more than a
mild restriction in activities of daily living, and no more
than mild difficulties in social functioning. AR 14. The ALJ
also found that Plaintiff had not experienced any episodes of
decompensation that had been of extended duration. AR 14.
Last, the ALJ found that the evidence did not satisfy the
paragraph C criteria. AR 14-15.
addition to engaging in the PRT, the ALJ referred to the
opinions of the state disability consultants, who concluded
that Plaintiff's impairments neither met nor equaled the
severity of any listed impairment. AR 15. The ALJ adopted
these opinions, finding that they were “well reasoned
and supported by the evidence of record.” AR 15.
four, the ALJ determined Plaintiff's RFC as follows:
[T]he undersigned finds that the claimant has the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: he is limited to simple, routine, repetitive,
unskilled tasks, in a work environment that does not require
any fast-paced production, involving only simple work related
decisions, with few if any changes in the workplace. Further,
he must not have any specific reading requirements and
instructions should be by way of demonstration with a
[s]pecific reasoning level of one.
AR 15. To determine Plaintiff's RFC, the ALJ evaluated
Plaintiff's credibility and reviewed medical evidence in
the record. AR 15-18. The ALJ also considered opinions from
examining psychologist Dr. John King, Ph.D, a consulting
examiner, Dr. Valerie Valle, Psy.D., and two non-examining
consulting psychologists who provided opinions at the request
of State Disability Determination Services. AR 16-18. The ALJ
also reviewed medical records from First Choice Community
Healthcare; progress notes from Plaintiff's counselor,
Angelique J. Lawhenore, Licensed Professional Clinical
Counselor (“LPCC”); Plaintiff's disability
reports to the SSA; the third party function report from
Plaintiff's grandfather; Plaintiff's testimony during
the hearing; and the VE's testimony during the hearing.
Valerie Valle, Psy.D.
Valle is a consulting examiner who conducted a mental status
examination of Plaintiff on April 12, 2013. AR 333. Dr. Valle
wrote that Plaintiff alleged that he had a learning
disability. AR 333. Dr. Valle observed that Plaintiff's
gait and general body movements were within normal limits. AR
333. Dr. Valle opined that Plaintiff's speech, language,
communication, and attention were all within normal limits.
AR 333. Plaintiff's mood was euphoric, his affect was
appropriate to thought content. AR 333.
reported to Dr. Valle that he had fatigue and anxiety about
his finances. AR 333. Dr. Valle determined that
Plaintiff's sleep hygiene was poor because he had no set
bed time and slept until noon. AR 333. Dr. Valle described
Plaintiff's activities of daily living, based on his
account, as “watching TV for most of the day, household
chores, caring for his dogs, and visiting his grandfather and
partner.” AR 333. Plaintiff also told Dr. Valle that
his hobbies included fishing and hunting. AR 333.
respect to his education, Plaintiff told Dr. Valle he was in
special education from the third through twelfth grades. AR
333. Plaintiff also told Dr. Valle that he was prescribed
Ritalin as a child, and last took it at the age of ten. AR
333. While Plaintiff was a senior in high school, after
having a car accident due to driving while intoxicated,
physicians discovered a brain tumor on Plaintiff's brain
stem, which was removed. AR 333. After the surgery, Plaintiff
“resumed normal academic and cognitive demands
consistent with his pre-injury functioning.” AR 333.
his work history, Plaintiff reported to Dr. Valle that he had
been unemployed since July 2011, and was fired from his last
two jobs because of substance abuse. AR 333. Plaintiff stated
that he enjoyed his job at a prison, which was his last job,
even though it was difficult for him to complete written
reports because of poor spelling and slow pace. AR 333.
Plaintiff was ultimately fired from that job due to being
charged with Driving Under the Influence (“DUI”).
AR 333. Prior to working at the prison, Plaintiff worked as a
stocker at the Smith's grocery store for five years, but
was ultimately fired from that position because of a positive
test for marijuana. AR 333.
Valle's diagnostic impressions were adjustment disorder
with mixed depressed and anxious mood, and financial and
occupational problems. AR 334. Dr. Valle ultimately
concluded: “While a learning disability is likely to be
a causal factor in [Plaintiff's] general intellectual
functioning, he has adapted well to his limitations in
reading/writing and learned to utilize his strengths.
[Plaintiff] would function well in occupations with limited
writing and detailed or technical reading. As [Plaintiff]
says, ‘I can get a job and stick to it if it's
easy.'” AR 334.
Valle found that Plaintiff was not limited in the following
categories: understanding and remembering short and simple
instructions, ability to interact with the public, coworkers,
and supervisors, ability to be aware of normal hazards and
react appropriately, or ability to use public transportation
or travel to unfamiliar places. AR 334. Dr. Valle found that
Plaintiff was mildly limited in the following categories:
understanding and remembering detailed or complex
instructions, ability to carry out instructions, ability to
work without supervision, and ability to adapt to changes in
the workplace. AR 334. Dr. Valle found that Plaintiff was
mildly to moderately limited in ability to attend and
concentrate. AR 334. Dr. Valle did not specifically opine on
how long Plaintiff could be expected to maintain his