United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Timmy Trujillo's
(“Plaintiff's”) “Motion to Reverse and
Remand for Payment of Benefits, or in the Alternative, for a
Rehearing, With Supporting Memorandum”
(“Motion”), filed on May 15, 2017. ECF No. 20.
The Commissioner responded on July 13, 2017. ECF No. 22.
Plaintiff filed his Reply on August 1, 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.
was born on May 7, 1965. Administrative R. (“AR”)
20. Plaintiff attended high school through the eleventh
grade, and also attended art school for eighteen months. AR
20, 37. Plaintiff previously did construction work and worked
in a warehouse. AR 80-84, 121. Plaintiff filed an application
for Supplemental Security Income (“SSI”) on
December 10, 2010, alleging a disability onset date of May 1,
2010. AR 112. The Social Security Administration (“the
SSA”) denied Plaintiff's claim on January 11, 2011,
and again upon reconsideration on February 23, 2011. AR 112.
Plaintiff then requested a hearing, which was held in front
of Administrative Law Judge (“ALJ”) Ben Willner
on July 17, 2012. AR 112. Plaintiff testified at the hearing,
as did Leslie J. White, a vocational expert
(“VE”). AR 112. Plaintiff was represented by
counsel. AR 112.
March 6, 2013, ALJ Willner issued his decision that Plaintiff
was not disabled from May 1, 2010, through the date of his
decision. AR 122. Plaintiff subsequently asked the SSA's
Appeals Council (“AC”) to review ALJ
Willner's decision, and on August 6, 2014, the AC vacated
ALJ Willner's decision and remanded the case to a
different ALJ. AR 128-130.
next ALJ, Michelle K. Lindsay, held a hearing on January 26,
2015, at which Plaintiff testified. AR 11. A different VE,
Pamela A. Bowman, also testified. AR 11. Plaintiff was again
represented by an attorney during the hearing. AR 11. To
comply with the AC's directive that the next ALJ must
obtain additional evidence concerning Plaintiff's organic
mental impairment, ALJ Lindsay referred Plaintiff for a
consultative psychological evaluation, which ALJ Lindsay
considered in rendering her decision. AR 11.
19, 2015, ALJ Lindsay found that Plaintiff was not disabled
from the date he filed his application, December 10,
2010, through the date of her decision. AR 21-22. Plaintiff
then requested that the AC review ALJ Lindsay's decision,
a request the AC denied on August 25, 2016. AR 1-4. As a
consequence, the ALJ's decision became the final decision
of the Commissioner. 20 C.F.R. § 422.210(a) (2017).
Plaintiff timely filed his appeal in this Court on September
22, 2016. ECF No. 1.
argues that the residual functional capacity
(“RFC”) that ALJ Lindsay determined was based
upon an improper weighing of evidence. Pl.'s Mot. 12, ECF
No. 20. Specifically, Plaintiff asserts that the ALJ did not
properly evaluate the opinions of Dr. Harry Burger, D.O., Dr.
John Owen, Ph.D., and Certified Family Nurse Practitioner
(“CFNP”) Susette Eaves. Id. at 12-19.
Second, Plaintiff argues that ALJ Lindsay improperly found
Plaintiff to be only partially credible. Id. at
19-21. Third, Plaintiff contends that ALJ Lindsay did not
resolve conflicts between the VE's testimony and the
Dictionary of Occupational Titles (“DOT”).
Id. at 22-25. Had the ALJ done so, Plaintiff argues,
two of the three jobs identified by the VE would have been
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, ALJ Lindsay determined that Plaintiff had not engaged in
substantial gainful activity since December 10, 2010, the
application date. AR 13. At step two, she found that
Plaintiff had the following severe impairments: moderate left
ventricular hypertrophy; history of chronic heart failure and
acute kidney failure; chronic kidney disease with normal
creatinine levels; hypertension; obesity; obstructive sleep
apnea; adjustment disorder with mixed anxiety and depressed
mood; and mild neuro-cognitive disorder. AR 13. ALJ Lindsay
also considered Plaintiff's allegations of bumps in his
fingers, arthritis, and problems gripping with his left hand,
but concluded that the alleged impairments were not medically
determinable, and thus not severe. AR 13.
three, ALJ Lindsay 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
four, ALJ Lindsay determined Plaintiff's RFC as follows:
I find that [Plaintiff] has the residual functional capacity
to perform light work as defined in [20 C.F.R. §
416.967(b)] including the ability to lift and carry up to 20
pounds occasionally and 10 pounds frequently; push and pull
20 pounds occasionally and 10 pounds frequently; stand and/or
walk at least 6 hours during 8 hours; and sit at least 6
hours during 8 hours. He is further limited in that he should
never climb ladders, ropes, or scaffolds; must avoid
unprotected heights; is limited to understanding,
remembering, and carrying out only simple instructions; is
able to maintain attention and concentration to perform only
simple tasks for two hours at a time without requiring
redirection to task; requires work involving no more than
occasional change in the routine work setting; can have only
occasional contact with the general public; and interaction
with co-workers should be incidental to the work performed.
AR 16. To determine Plaintiff's RFC, ALJ Lindsay
evaluated Plaintiff's credibility and reviewed medical
evidence in the record. AR 16-20. ALJ Lindsay concluded that
while Plaintiff's “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms, ” Plaintiff was only partially credible
because his “statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not
entirely credible[.]” AR 17.
Lindsay also considered opinions from consultative examiner
Dr. Burger, consultative psychologist Dr. Owen, CFNP Eaves,
and non-examining state agency medical consultants Dr. Janice
Kando, M.D., Dr. Allen Gelinas, M.D., and Dr. Lawrence Kuo,
M.D. AR 17-20, 393-94, 420-21, 431. In addition, ALJ Lindsay
reviewed medical records from First Choice Community
Healthcare, University of New Mexico Hospital, Presbyterian
Hospital, and Cardiac Care Consultants of NM, P.C. AR 16-20.
ALJ Lindsay also reviewed a third party functional report
from Plaintiff's sister Suzanne Trujillo-Bergey,
Plaintiff's testimony during the hearing, and the
VE's testimony during the hearing. AR 15-20. Although ALJ
Lindsay gave significant weight to Ms. Trujillo-Bergey's
statements, she noted that her statements were “not
completely consistent with the evidence as a whole.” AR
19. The issues Plaintiff raises on appeal concern only the
opinions of Dr. Burger, Dr. Owen, and CFNP Eaves, and
consequently the Court will review only those opinions in
Harry Burger, D.O.
Burger evaluated Plaintiff on August 28, 2010, as a
consultative examiner. AR 385. Although the ALJ did not
assign a specific weight to Dr. Burger's opinion, the
Court infers that the ALJ nonetheless adopted the opinion
because she referred to the following in her decision: Dr.
Burger's observations regarding Plaintiff's hands and
his grip strength [AR 13]; Plaintiff's statements to Dr.
Burger that he can dress, wash, and feed himself without
assistance [AR 18]; Plaintiff's statements to Dr. Burger
that he can stand and sit without difficulty, can walk a mile
or two if he had to, can lift thirty-five pounds, and can
help around the house with sweeping, vacuuming, cooking,
trash, dishes and laundry [AR 19]; and Dr. Burger's
findings during his physical examination that Plaintiff was
obese, ambulated normally, got on and off the exam table and
out of a chair without difficulty, could walk on his heels
and toes, and could squat [AR 20]. The only medical record
Dr. Burger reviewed was one two-page note from
Plaintiff's appointment at Presbyterian Heart Group on
June 2, 2009. AR 385. Dr. Burger also reviewed
Plaintiff's two-year history of hypertension, noting that
while Plaintiff had some degree of congestive heart failure,
according to the note from Presbyterian Heart Group, his
congestive heart failure had improved. AR 386.
the physical examination, Dr. Burger noted that
Plaintiff's blood pressure was 133/140, and that
Plaintiff stated that he had not taken his blood pressure
medicines for two days because he had run out of them. AR
387. Dr. Burger observed that Plaintiff was not in acute
distress and that he ambulated normally. AR 387. Dr. Burger
noted normal range of motion in Plaintiff's elbows,
forearms, wrists, shoulders, cervical spine, lumbar spine,
hips, knees, ...