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Ayers v. Berryhill

United States District Court, D. New Mexico

January 30, 2018

MARK AYERS, JR., Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS 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.

         I. BACKGROUND

         Plaintiff 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.

         On June 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.


         Plaintiff 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.


         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 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).

         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).


         At step 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).[2] AR 13.

         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 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.

         In 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.

         At step 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. AR 11-20.

         Dr. Valerie Valle, Psy.D.

         Dr. 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.

         Plaintiff 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.

         With 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.

         Regarding 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.[3] 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.

         Dr. 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.

         Dr. 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 concentration.

         Dr. ...

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