United States District Court, D. New Mexico
JOHN T. YOUNG, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse or Alternatively Remand for a Rehearing, With
Supporting Memorandum” (“Motion”), filed on
May 1, 2017. ECF No. 16. The Commissioner responded on June
20, 2017. ECF No. 18. Plaintiff replied on July 14, 2017. ECF
No. 19. Having meticulously reviewed the entire record and
the parties' pleadings, 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.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's background has been well documented through
the two previous Orders issued by U.S. Magistrate Judge
William P. Lynch. See Order, Mar. 19, 2012, at 3-11,
ECF No. 27, 11-CV-478-WPL; Order, Mar. 18, 2015, at 4-11, ECF
No. 24, 14-CV-346-WPL. In short, Plaintiff was born on June 3,
1971, and attended school until the eleventh grade.
Administrative R. (“AR”) 1047-48. Plaintiff
attempted to obtain his General Equivalency Diploma
(“GED”), but was unable to do so. AR 375. He
worked in various janitorial, landscaping, and stocking jobs
from 1993 to 2004, and then worked from 2005 through June
2008 as a janitor and supervisor. AR 187. In 2007, Plaintiff
began a decade-long treatment relationship with the
University of New Mexico Health Sciences Center, where he
consistently sought treatment for his alleged chronic low
back pain and pain radiating down his legs, even as his
treatment was sometimes complicated by drug seeking behavior.
filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on March 27, 2008, claiming disability
based on “back and leg problems.” AR 100-15, 244.
Plaintiff initially claimed disability starting in 2007, but
amended his alleged onset date to July 1, 2008, during his
first hearing before an ALJ. AR 26-27. The Social Security
Administration (“SSA”) denied Plaintiff's
application initially on June 3, 2008, and upon
reconsideration on October 17, 2008. AR 52, 58. Following a
hearing on November 6, 2009 [AR 23-47], ALJ George Reyes
found that Plaintiff was not disabled within the meaning of
the Social Security Act (“the Act”). AR 10-19.
The SSA's Appeals Council declined review. AR 1-5.
Plaintiff sought judicial review of the decision, and on
March 19, 2012, Judge Lynch remanded the case based on a step
five error. AR 406-29.
received a new administrative hearing before ALJ Ann Farris
on September 25, 2013. AR 358-89. ALJ Farris, like ALJ Reyes
before her, found that Plaintiff was not disabled for
purposes of the Act. AR 337-51. Plaintiff again sought
judicial review of the agency's final decision, and on
March 18, 2015, Judge Lynch remanded a second time for
further proceedings. AR 1504-18. On this occasion, Judge
Lynch remanded for ALJ Farris's failure to support a
medical evaluation with substantial evidence, and for failing
to properly evaluate a separate medical opinion under SSA
standards. AR 1516-18.
attended his most recent administrative hearing before ALJ
Farris along with his attorney, Michael Armstrong, on March
30, 2016. AR 1469-92. Vocational expert (“VE”)
Karen Provine also appeared and testified at the hearing. AR
1488-91. On May 17, 2016, ALJ Farris reiterated her finding
that Plaintiff was not disabled for purposes of the Act. AR
filed an appeal with this Court on September 14, 2016. ECF
advances three grounds for relief. First, he argues that ALJ
Farris violated the mandate rule by failing to comply with
Judge Lynch's instructions. Pl.'s Mot. 16-18, ECF No.
16. Second, he contends that ALJ Farris erred by failing to
properly evaluate the medical opinion evidence of
consultative examiner Dr. John Vigil, M.D. Id. at
18-22. Third, he alleges that ALJ Farris ignored the findings
of non-examining consulting psychologist Carol Mohney, Ph.D.
Id. at 24-26.
Standard of Review
Plaintiff elected not to seek review by the Appeals Council,
the ALJ's decision became 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
examines “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) (2017). 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. 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 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
Farris issued her second decision in Plaintiff's case on
May 17, 2016. AR 1444. At step one, she found that
Plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date of June 30, 2008. AR
1448. At step two, ALJ Farris found Plaintiff to suffer from
the following severe impairments: (1) degenerative disc
disease of the lumbar spine; (2) lumbar radiculopathy; (3) an
affective disorder; (4) an anxiety disorder; and (5)
polysubstance abuse. AR 1449.
three, ALJ Farris found that none of Plaintiff's
impairments, alone or in combination, met or medically
equaled the severity of a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. AR 1450-52. ALJ Farris began her
analysis with Plaintiff's spinal impairments, and found
that Plaintiff's symptoms did not meet or equal the
criteria of Listing 1.04 for disorders of the spine. AR
1450. To reach that determination, she relied on
the opinions of the non-examining consulting physicians who
“reached the same conclusion” as she did, along
with Plaintiff's long history of physical examinations.
AR 1450. By ALJ Farris's account, Plaintiff's
examinations generally showed stable spinal findings,
“including positive facet loading signs with diminished
range of motion and lateral flexion and point tenderness at
the base of the lumbar spine.” AR 1450. ALJ Farris
reasoned that Plaintiff's examinations “have not
consistently shown any difficulty with ambulation, positive
straight leg raising, or motor loss (atrophy with associated
muscle weakness) accompanied by sensory or reflex loss, as
required by section 1.04.” AR 1450. These findings
aligned with Plaintiff's most recent examination, where
“[t]here was no mention of any gait abnormality or
motor or sensory deficit, ” and ultimately led ALJ
Farris to find that Plaintiff did not qualify under Listing
1.04. AR 1450.
Farris then turned to Plaintiff's mental impairments,
which she scrutinized under Listings 12.04 (affective
disorders), 12.06 (anxiety related disorders), and
12.09 (substance addiction disorders). AR 1450.
She found that the paragraph B criteria of Listings 12.04 and
12.06 were not met “[b]ecause
[Plaintiff's] mental impairments do not cause at least
two ‘marked' limitations or one ‘marked'
limitation and ‘repeated' episodes of
decompensation, each of extended duration.” AR 1451.
Farris found that Plaintiff “has mild restriction in
activities of daily living; moderate difficulties in social
functioning; mild difficulties with regard to concentration,
persistence or pace; and no episodes of compensation.”
AR 1450. In support of her findings, ALJ Farris provided a
summary of Plaintiff's testimony, including his
statements that he: (1) lives in a shack with no utilities;
(2) has a driver's license but no car; (3) has problems
bathing because he lacks water; (4) receives food stamps and
gives them to his friend to go grocery shopping; (5) does not
do anything for fun; (6) cannot be around people; (7) sleeps
poorly; and (8) is always angry. AR 1451. She then
highlighted “evidence of record” which she
believed contradicted Plaintiff's claims. See AR
1451. To that end, ALJ Farris marshaled facts from throughout
the record, with particular focus on the fact that Plaintiff
first reported his depression in 2011, after his girlfriend
of five years left him. To ALJ Farris, this harmonized with
the fact that Plaintiff's last job was in management,
“which suggests at least adequate people skills.”
AR 1451. Moreover, ALJ Farris felt that Plaintiff's
ability to carry on social relationships was bolstered by
Plaintiff's 2013 admission that he had partied with a
friend newly returned from Iraq. AR 1451.
second prong of ALJ Farris's reasoning derived from the
consultative psychological examinations of Susan Flynn, Ph.D.
and Dr. Brent Hager, M.D. ALJ Farris observed that Plaintiff
presented in 2012 to Dr. Flynn with good eye contact, a
friendly attitude, the ability to attend to the examination,
and the ability to follow directions. Plaintiff's thought
processes at that time were organized and logical, their
content appeared to be normal, and their “quality was
mostly appropriate but he related feelings and moderate
symptoms of anxiety and depression.” AR 1451.
Plaintiff's consultation with Dr. Hager in 2014 produced
similar findings, with Dr. Hager opining that Plaintiff's
affect was “congruent, anxious dysthymic with range to
tearfulness, dysphoria, and irritability.” AR 1451.
Plaintiff demonstrated appropriate humor and intact
associations, and displayed no psychotic features. And,
although Plaintiff's remote autobiographical recall, fund
of knowledge, insight, and judgment were all rated as poor,
Dr. Hager did note that Plaintiff showed “adequate
conversational orientation, attention, concentration, recent
autobiographical recall, and language.” AR 1451.
in tandem, these observations led ALJ Farris to find that the
paragraph B criteria were not satisfied. ALJ Farris also
considered whether the paragraph C criteria of Listings 12.04
and 12.06 were satisfied, and found that “the evidence
fails to establish the presence of the ‘paragraph
C' criteria.” AR 1451.
none of Plaintiff's impairments satisfied an applicable
Listing, ALJ Farris proceeded to step four and assessed
Plaintiff's RFC. AR 1452-59. “After careful
consideration of the entire record, ” ALJ Farris
determined that “[Plaintiff] has the residual
functional capacity to perform sedentary work” as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a)
“except that he can occasionally climb stairs; never
climb ladders, ropes or scaffolds; occasionally balance,
stoop, and kneel; never crouch or crawl; and have no more
than occasional superficial[ ] interaction with the public
and coworkers.” AR 1452.
develop Plaintiff's RFC, ALJ Farris relied on two
principal grounds. First, she rendered an adverse credibility
finding against Plaintiff, opining that his “medically
determinable impairments might be expected to cause some of
the alleged symptoms; however, [Plaintiff's] statements
concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical
evidence and other evidence in the record.” AR 1453.
She supported this credibility finding with a comprehensive
comparison between Plaintiff's alleged symptoms, their
relationship to his substance abuse problem, and the conflict
of these symptoms with numerous presentations before medical
professionals. AR 1453-57. Furthermore, ALJ Farris documented
the interplay between these factors through a meticulous
review of Plaintiff's medical documentation from 2007 all
the way to 2016. AR 1453-57. ALJ Farris's well-reasoned
credibility finding has drawn no objection from Plaintiff.
with Plaintiff's adverse credibility finding, ALJ Farris
relied on the medical opinions of record to craft
Plaintiff's RFC. Chief among these was the opinion of Dr.
Harvey Mallory, M.D., a physician with the University of New
Mexico Hospital's (“UNMH's”) Pain
Management Clinic. Dr. Mallory began treating Plaintiff for
spinal pain in February 2008. See AR 272, 704. ALJ
Farris reviewed a letter from Dr. Mallory in 2008, wherein he
opined that Plaintiff could no longer work as a janitorial
supervisor because the employment involved significant
amounts of heavy lifting, bending, stooping, and carrying of
heavy objects. AR 1458. ALJ Farris highlighted, however, that
the letter “did not set forth specific limitations and
did not rule out the possibility of [Plaintiff] performing
less strenuous work.” AR 1458.
Farris also evaluated a July 23, 2008, request for family
leave propounded by Dr. Mallory on Plaintiff's behalf.
She observed that the request mentioned Plaintiff's
chronic condition being present from 2004 to the time of the
request, and that the request referred to Plaintiff as being
“‘presently incapacitated' for
‘duration unknown.'” AR 1458 (quoting AR
171). ALJ Farris took exception with these conclusions, and
rebutted them by noting that Plaintiff “continued to
work full time as a cleaning service supervisor from 2004 to
2008, [and thus, ] clearly had not been incapacitated since
2004.” AR 1458. ALJ Farris further emphasized that Dr.
Mallory had completed a medical leave form for Plaintiff,
rather than a disability form, which she interpreted as
“suggesting that Dr. Mallory expected [Plaintiff] to
improve with treatment and return to work.” AR 1458.
examining later treatment notes of 2009 and 2010, ALJ Farris
believed Dr. Mallory to be “encourag[ing]
[Plaintiff's] activities toward improving his employment
situation, ” which Dr. Mallory hoped would be in a
field “that require[d] less physical activity.”
AR 1458 (quotation omitted). ALJ Farris ultimately accorded
great weight to Dr. Mallory's opinion, but only to the
extent Dr. Mallory believed Plaintiff “would not be
able to return to his past strenuous work as a cleaning
service supervisor (which also required cleaning offices),
but that he was capable of performing other, less strenuous
work.” AR 1458.
Farris next turned to the opinion of Dr. John Vigil, M.D.,
who performed a consultative examination of Plaintiff on
September 12, 2013, at the request of Plaintiff's
attorney. In sum, Dr. Vigil found that Plaintiff “is
totally and completely disabled secondary to his chronic pain
and co-morbid psychiatric conditions.” AR 1255. ALJ
Farris discounted Dr. Vigil's opinion, and the rejection
of his opinion forms the greater part of the instant appeal.
Accordingly, Dr. Vigil's opinion will be reviewed in
detail below. See infra pp. 13-23.
Farris also assigned “limited weight” to the
opinion of Dr. Susan Flynn, Ph.D., who performed a
consultative psychological examination of Plaintiff on August
1, 2012. AR 1449, 1459. At that evaluation, Dr. Flynn
diagnosed Plaintiff with a “major depressive disorder,
recurrent, moderate, and a generalized anxiety
disorder.” AR 1449. Plaintiff related to Dr. Flynn
“that he became depressed in 2011 when his girlfriend
of five years left him.” AR 1451. Plaintiff also
reported that he smoked marijuana for his pain, “and
when he doesn't smoke he can get upset.” AR 1048.
Dr. Flynn documented that Plaintiff's affect seemed
“to be constricted with a fatigued energy level,
” and that his “quality is mostly appropriate but
he relates feelings and moderate symptoms of anxiety and
depression.” AR 1049. Nevertheless, Dr. Flynn observed
that Plaintiff maintained good eye contact and attention
span, and was both friendly and able to follow directions.
His thought processes appeared organized, logical, and
normal, and he denied hallucination and thoughts of suicide.
AR 1451. Furthermore, Dr. Flynn opined that Plaintiff's
“impulse control seems intact, ” and although his
“insight seems mildly impaired, ” she believed
that his “reasoning appears to be at the concrete
level.” AR 1049. Ultimately, while ALJ Farris
discounted Dr. Flynn's opinion with little explanation,
she nonetheless described the examination as “thorough
and competent.” AR 1446.
Farris then collectively weighed the opinions of the
non-examining consultative physicians in Plaintiff's
case, without mentioning any by name, and accorded them
“great weight” to the extent they found that
Plaintiff “retains the ability to perform the
exertional requirements of sedentary work, with appropriate
postural limitations.” AR 1459. She adopted the same
anonymous, collective approach toward the non-examining
consultative psychologists -including Dr. Carol Mohney, Ph.D.
- assigning their opinions “significant weight”
with “regard to the nature and severity of
[Plaintiff's] mental impairments and functioning.”
AR 1459. She reflected that “[t]he consultants found
that [Plaintiff's] mental impairments were severe, but
that he had mild restriction[s] in activities of daily
living; moderate difficulties in social functioning; mild
difficulties with regard to concentration, persistence or
pace; and no episodes of decompensation, under the ‘B
criteria.'” AR 1459. ALJ Farris explained that she
“accept[ed] those findings, ” but stressed that
she did “not accept the limitation to simple
work.” AR 1459. The substantiation she provided for
discounting the limitation to simple work forms the second
component of the instant appeal, and along with Dr.
Vigil's opinion, will be scrutinized in detail below.
See infra pp. 23-30.
second phase of step four, ALJ Farris identified past
relevant work as a janitorial supervisor,
commercial/institutional cleaner, and tow truck operator. AR
1460. Then, at the third and final phase of step four, ALJ
Farris found that Plaintiff's RFC ruled out his return to
any of these lines of work. AR 1460. Accordingly, ALJ Farris
proceeded to step five. AR 1460. Based on Plaintiff's
age, education, work experience, and RFC, ALJ Farris found
that Plaintiff could perform other jobs that exist in
significant numbers in the national economy. AR 1460-61. As
described by the VE, these jobs included stuffer, DOT #
731.685-014, addresser, DOT # 209.587-010, and document
preparer, DOT # 249.587-018. AR 1461. Finally, ALJ Farris
concluded that Plaintiff had not been under a disability, as
defined by the Act, during the relevant time period and she
denied the claim. AR 1461.
is no stranger to judicial review. The Court appreciates and
is cognizant of his decade-long battle to secure benefits
from the SSA and the multiple interim successes he has
already achieved on appeal. But here, on his third appeal to
the U.S. District Court, Plaintiff presents only the
following three allegations of error: (1) that ALJ Farris
violated the mandate rule; (2) that ALJ Farris failed to
properly evaluate the opinion of Dr. Vigil; and (3) that ALJ
Farris ignored the findings of Dr. Mohney. See
Pl.'s Mot. 16-26. And upon closer scrutiny, these three
issues present as one larger, interrelated argument. In fact,
by analyzing the merits of Plaintiff's first claim -
which essentially asserts that ALJ Farris violated the
mandate rule by erring in the manner described in claims two
and three - the merits of his second and third claims are
necessarily exposed. And, unfortunately for Plaintiff, the
latter two allegations are as bereft of support as the first.
Thus, although it does so reluctantly, the Court must
conclude that Plaintiff has failed to identify reversible
error in ALJ Farris's 2016 decision. The Court's
reasoning follows below.
ALJ Farris Complied With the Mandate Rule and Supported Her
Finding on Dr. Vigil's Opinion With Substantial
first claim is best understood in context. On March 18, 2015,
Judge Lynch issued a final order in Plaintiff's second
judicial appeal. See Order, Mar. 18, 2015, ECF No.
24, 14-CV-346-WPL (also located at ¶ 1504-17). Therein,
Judge Lynch reversed and remanded ALJ Farris's decision
of December 12, 2013 [see AR 337-51], finding that
ALJ Farris had “erred at step four by failing to
properly evaluate Dr. Mohney's opinion and failing to
support with substantial evidence her treatment of Dr.
Vigil's opinion.” AR 1517. Judge Lynch also ordered
that “[o]n remand, the ALJ will address all medical
source opinions under the guidelines in 20 C.F.R.
§§ 404.1527(c), 416.927(c), and any applicable
SSRs.” AR 1517. The order ended with two final
(1) I remand this case to the ALJ at step four to examine the
record and compare Dr. Vigil's opinion to the findings ...