United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for Payment of Benefits, or in the
Alternative, for Rehearing, With Supporting Memorandum”
(“Motion”), filed on July 17, 2017. ECF No. 20.
The Commissioner responded on September 14, 2017. ECF No. 22.
Plaintiff replied on October 2, 2017. ECF No. 23. 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.
was born on August 4, 1961, in Clovis, New Mexico.
Administrative R. (“AR”) 70, 412. Plaintiff grew
up in a family of fourteen and completed the ninth grade. AR
233, 412. Although she did not obtain a high school diploma,
Plaintiff later studied for and received her certification as
a certified nurse assistant (“CNA”). AR 48.
Plaintiff worked as a CNA until she quit working in 2009. AR
August 24, 2009, Plaintiff filed her first application for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”), alleging a
disability onset date of August 21, 2009. AR 90. The Social
Security Administration (“SSA”) denied
Plaintiff's application at the initial and
reconsideration stages, see AR 90, and following a
de novo hearing, an ALJ also denied Plaintiff's
claim. AR 90-99. Plaintiff's first claim concluded when
the SSA Appeals Council declined review. AR 106-08. Plaintiff
elected not to pursue judicial review of that claim.
filed a subsequent application for DIB and SSI on March 6,
2013. AR 217-19. That claim, which forms the basis of the
instant appeal, alleged disability beginning on November 16,
2012, based on post-traumatic stress disorder
(“PTSD”), chronic obstructive pulmonary disorder
(“COPD”), gastroesophageal reflux disease
(“GERD”), rhinitis, anemia, weak ankles and
knees, hypothyroidism, depression, anxiety, plantar
fasciitis, diverticulitis, headaches, and panic
attacks. The SSA denied Plaintiff's application
initially on June 27, 2013, and upon reconsideration on
November 12, 2013. AR 128, 147. At her request, Plaintiff
received a de novo hearing before ALJ Larry Miller
on May 19, 2015, at which Plaintiff, her attorney, and
vocational expert (“VE”) Ann Neulicht appeared.
AR 42-86. On July 6, 2015, the ALJ issued his decision,
finding that Plaintiff was not disabled within the meaning of
the Social Security Act (“the Act”). AR 23-37.
Plaintiff appealed to the SSA Appeals Council, but it
declined review on February 17, 2016. AR 1-3. As a
consequence, the ALJ's decision became the final decision
of the Commissioner. 20 C.F.R. § 422.210(a) (2017).
timely filed her appeal with this Court on November 23, 2016.
ECF No. 1.
advances five grounds for relief. First, she argues that the
ALJ improperly evaluated the opinion of examining
consultative psychologist Dr. Jerome Albert, Ph.D. Pl.'s
Mot. 9-11, ECF No. 20. Second, she alleges that the ALJ
impermissibly disregarded moderate limitations identified by
two non-examining consultative psychologists. Id. at
11-12. Third, she contends that the ALJ's RFC assessment
is flawed and that the ALJ erroneously evaluated the opinion
of examining consulting physician Dr. Everett Bolz, M.D.
while crafting the RFC. Id. at 12-17. Fourth,
Plaintiff claims the ALJ erred by failing to conduct a
function-by-function assessment of her physical capabilities.
Id. at 17-18. Finally, she asserts that the
ALJ's credibility finding is contrary to the evidence and
to established law. Id. at 18-20.
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
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 [he] 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. 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 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 her 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 she 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
issued his decision on July 6, 2015. See AR 20. At
step one, he found that Plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date of November 16, 2012. AR 25. At step two, the ALJ
found Plaintiff to suffer the following severe impairments:
(1) obesity, (2) COPD, (3) plantar fasciitis, (4)
osteoarthritis of the knee, (5) hypothyroidism, (6) GERD, (7)
diverticulitis, (8) anxiety disorder, (9) depression, and
(10) PTSD. AR 25.
three, the ALJ 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 25-28. The ALJ declared at the
outset that he had “considered the impact of
[Plaintiff's] obesity, as discussed in Social Security
Ruling 02-01p . . . [and] the impact on limitation of
function including [Plaintiff's] ability to perform
routine movement and necessary physical activity within the
work environment.” AR 26. See Social Security
Ruling (“SSR”) 02-01p, 2002 WL 34686281 (Sep. 12,
2002). The ALJ then proceeded sequentially through
Plaintiff's physical impairments, finding first that
Plaintiff's COPD did not meet Listing 3.03, as her
symptoms were neither sufficiently chronic nor of sufficient
frequency to satisfy the Listing. The ALJ also found that
Plaintiff's diverticulitis failed to satisfy Listing
5.06, as it had not “caused obstruction of stenotic
areas requiring hospitalization” or resulted in anemia,
abdominal masses, perineal disease, weight loss, or the need
for supplemental nutrition by gastrostomy or catheter. AR 26.
The ALJ similarly found that Plaintiff's GERD failed to
qualify under Listing 5.03, as it had not resulted in
stricture, stenosis, blockage of the esophagus, or weight
loss as required by the Listing. The ALJ considered
Plaintiff's plantar fasciitis and osteoarthritis of the
knee and found neither to qualify as presumptively disabling,
as Plaintiff had not “lost the ability to ambulate
effectively or perform fine and gross movements” as
required by Listings 1.02 and 1.03. AR 26. Lastly, the ALJ
found that Plaintiff's hypothyroidism had not resulted in
any of complications necessary to qualify under Listing 9.00.
then turned to Plaintiff's mental impairments, which he
considered under Listing 12.04 (affective disorders) and
12.06 (anxiety-related disorders). AR 53. The ALJ determined
the paragraph B criteria of these Listings were not met
“[b]ecause the claimant'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 27. He then explained his reasoning regarding paragraph
B's four subparts.
the ALJ evaluated Plaintiff's activities of daily living
and found her to have only a mild restriction. The ALJ
observed that Plaintiff had been able to “maintain her
daily care, ” including feeding, bathing, and clothing
herself. AR 27. Additionally, he reported that Plaintiff
cooked, drove occasionally, went grocery shopping, vacuumed,
did laundry and folded clothes. And although she sat in the
back to avoid a panic attack, Plaintiff was able to go to
church. AR 27.
the ALJ found Plaintiff to have moderate difficulties in
social functioning. In support of this finding, he recounted
Plaintiff's testimony “that she was anxious around
people, ” paranoid, distrustful, and had no friends. AR
27. The ALJ further cited to Plaintiff sitting in the back of
church to avoid others and the fact she did not go grocery
shopping alone. AR 27.
as to Plaintiff's concentration, persistence, and pace,
the ALJ found Plaintiff had moderate difficulties. To
buttress the finding, the ALJ turned to Plaintiff's
testimony that she had panic attacks that engendered
shortness of breath and feelings of dread. This testimony
corresponded to Plaintiff's clinical presentation, where
she “was observed with some symptoms of anxiety,
” and “rambled [and] twisted her hair as she
spoke.” AR 27. But, “[d]espite these
difficulties, ” the ALJ emphasized that Plaintiff
“admitted resolution with Ativan and Xanax, and she
appeared with fair attention and concentration.” AR 27.
regarding episodes of decompensation, the ALJ found that
Plaintiff “has experienced no episodes of
decompensation, which have been of extended duration.”
AR 27. This corresponded with his finding that the paragraph
C criteria of the relevant listings were not met. AR 27.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to the first phase of step four and
assessed Plaintiff's RFC. AR 28-35. “After careful
consideration of the entire record, ” the ALJ
determined that Plaintiff:
[H]ad the residual functional capacity to perform light work
as defined in [20 C.F.R. § 404.1567(b)]. However, she
requires a sit/stand option which allows her to change from
sitting to standing every 45 minutes; [Plaintiff] can do no
climbing and frequent balancing, stooping, crouching,
kneeling, and crawling; [Plaintiff] cannot work at heights or
around dangerous machinery; she cannot work in environments
with concentrated exposure to respiratory irritants such as
dust, fumes, or smoke; [Plaintiff] has had a decrease in the
ability to concentrate on and attend to work tasks to the
extent that she can only do simple, routine, repetitive tasks
(i.e., can apply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form
and deal with problems involving several concrete variables
in or from standardized situations). [Plaintiff] can
frequently interact with co-workers and supervisors and never
interact with the public. Furthermore, [Plaintiff] is unable
to work at jobs requiring complex decision making, constant
changes, or dealing with crisis situations.
develop Plaintiff's RFC, the ALJ relied on three separate
grounds. First, the ALJ rendered an adverse credibility
finding against Plaintiff, opining that Plaintiff's
“statements concerning the intensity, persistence[, ]
and limiting effects of [her] symptoms are not entirely
credible or disabling for the reasons explained in this
decision.” AR 29. The ALJ supported this finding with a
five-page comprehensive comparison between Plaintiff's
testimony and the medical evidence, which concluded with a
paragraph summarizing his findings. AR 28-33. In that summary
paragraph, the ALJ observed that while Plaintiff alleged
disability “due to joint pain, COPD, heel pain,
anxiety, depression, and PTSD . . . the evidence does not
support disabling limitations.” AR 32. She explained
that Plaintiff's “depression was treated with
Lexapro and Lorazepam and her anxiety was treated with Ativan
and Xanax, ” and as a result, while Plaintiff
“often appeared sad . . . she continued to
function.” AR 32. Furthermore, even while discussing
with mental health professionals difficult episodes from her
past, Plaintiff “exhibited fair attention and
concentration” and “coherent and focused
thinking.” AR 32.
ALJ's summary communicated similar reservations about
Plaintiff's physical impairments. As to Plaintiff's
plantar fasciitis, the ALJ opined that Plaintiff sought the
same injections for the condition “every few
months” as they seemed to resolve her pain “for
some period of time.” AR 32. The ALJ also believed that
Plaintiff's “breathing problems were mostly
attributed to her weight and not COPD.” AR 33. She
reasoned that Plaintiff had never been hospitalized for the
COPD, that Plaintiff's oxygen saturation remained within
acceptable ranges, and that the bronchitis and respiratory
infections which she was prone to were likely traceable to a
sensitivity to pulmonary irritants. AR 33. The ALJ also
stressed that Plaintiff failed to complete a pulmonary
function test in May 2013 “due to lack of effort”
and her “failure to follow directions.” AR 33.
Regarding Plaintiff's knee pain, the ALJ stated that
Plaintiff had good range of motion in both knees, full
strength, could squat halfway without help, and reported
improved knee pain after being prescribed Ultram and Medrol.
Further, Plaintiff's hypothyroidism, GERD, and
diverticulitis were all treated with medication
“without complication.” AR 33. The ALJ noted
that, “throughout this time, ” Plaintiff
“remained able to cook, do some chores, and
drive” along with going to church and the store. AR 33.
These facts ultimately led the ALJ to conclude that
“[t]he evidence supports some limitation in functioning
but it does [not] preclude all ability to work.” AR 33.
with Plaintiff's adverse credibility finding, the ALJ
also relied on the medical opinions in the record to
determine Plaintiff's RFC. The ALJ began with the
nonexamining consultative physicians, and accorded their
opinions limited weight. AR 34. He recounted that at the
initial stage, Dr. Stephen Levin, M.D., concluded that
Plaintiff “could do medium level work with lifting and
carrying 50 pounds occasionally and 25 pounds frequently, and
standing/walking and sitting six hours in an eight-hour
day.” AR 33. At reconsideration, Dr. Hari Kuncha, M.D.,
found the same. AR 33. The ALJ discounted these opinions, as
he believed they did “not acknowledge [Plaintiff's]
joint pain, the effect of obesity on her joints, her
intermittent heel pain, or her respiratory
sensitivities.” AR 34.
then evaluated the opinions of the nonexamining consultative
psychologists. He observed that at the initial stage, Dr.
James Mendelson, Ph.D., found that Plaintiff “had no
restriction in activities of daily living, mild difficulties
in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and no
repeated episodes of decompensation of extended
duration.” AR 33. Dr. Mendelson further reasoned that
Plaintiff's “concentration and persistence were
sufficient to permit the completion of simple repetitive
work[-]like tasks within her medical parameters, ” but
cautioned that she “would benefit from a work[-]like
environment that de-emphasized social interactions and