United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's “Motion
to Reverse Commissioner's Administrative Decision and
Remand Claim” [ECF No. 14] and “Brief in Support
of the Motion to Reverse and Remand” (collectively,
“Motion”),  filed on August 2, 2017. ECF No. 15.
The Commissioner responded on September 27, 2017. ECF No. 21.
Plaintiff replied on October 25, 2017. ECF No. 22. On August
22, 2017, Chief U.S. District Judge William P. Johnson
referred the above-captioned cause to this Court for
recommended findings and disposition. ECF No. 18. Having
meticulously reviewed the entire record and the parties'
pleadings, the Court finds that the Motion is not well-taken
and recommends that it be denied.
is a fifty-four year old resident of Albuquerque, New Mexico.
Administrative R. (“AR”) 56-57, ECF No. 11.
Plaintiff earned his high school diploma and then enlisted in
the United States Air Force, where he served three periods of
active duty between 1983 and 2011. AR 184, 672. When not on
active duty, Plaintiff also served as a federal law
enforcement officer at the U.S. Department of Veterans
Affairs (“VA”). AR 184. Plaintiff reported that
he stopped working on January 10, 2012. AR 183.
filed an application for Disability Insurance Benefits
(“DIB”) under Title II, Sections 216 and 223 of
the Social Security Act (“the Act”), 42 U.S.C.
§§ 416(i), 423 (2012), alleging disability
beginning on January 6, 2012, due to post traumatic stress
disorder (“PTSD”), spinal injuries, sciatica,
complications from knee replacement, and sleep apnea. AR 183.
Plaintiff's application was denied initially and upon
reconsideration. AR 67, 80. At his request, Plaintiff
received a de novo hearing before Administrative Law Judge
(“ALJ”) Myriam Fernandez-Rice on September 23,
2015, at which Plaintiff, his legal counsel, and a vocational
expert appeared. AR 27-55. On November 16, 2015, the ALJ
issued her decision, finding that Plaintiff was not disabled
within the meaning of the Act. AR 12-22.
the ALJ issued her decision, Plaintiff submitted additional
evidence to the Social Security Administration's
(“SSA's”) Appeals Council and requested
review. See AR 1-6, 244-45. The additional evidence
consisted of a VA disability rating dated November 6, 2015,
just 10 days before the ALJ issued her decision. See
AR 22, 672. The VA determined Plaintiff to be unemployable
under its regulations as of March 31, 2012, due to
the combined effects of his right and left knee issues,
lumbar spine issues, and PTSD. AR 672-73. The Appeals Council
considered Plaintiff's VA rating and added it to the
record, but found that it did not provide a basis for
changing the ALJ's decision, and thus declined review on
January 20, 2017. See AR 1-6. Consequently, the
ALJ's decision became the final decision of the
Commissioner. 20 C.F.R. § 422.210(a) (2017).
filed the instant appeal on March 21, 2017. ECF No. 1.
lone allegation of error is that the Appeals Council erred by
failing to properly evaluate the disability determination he
received from the VA. Pl.'s Mot. 8-12, ECF No. 15.
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.
U.S. Cellular Tel. of Greater Tulsa, L.L.C. v. City of
Broken Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir.
2003). 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.
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 v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007). 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) (2015). 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 past work, then the Commissioner bears the burden, at the
fifth step, of showing that the claimant is 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).
THE ALJ'S DECISION
issued her decision on November 16, 2015. See AR 9.
At step one, she found that Plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date of January 6, 2012. AR 14. At step two, the ALJ
found Plaintiff to suffer the following severe impairments:
(1) sciatica, (2) degenerative disc disease, (3) status post
reconstructive surgery on weight bearing joint, and (4)
arthritis. AR 14. In contrast, the ALJ found Plaintiff's
sleep apnea, depression, and PTSD to be non-severe.
See AR 14-17.
explain her assessment of Plaintiff's mental impairments
as non-severe, the ALJ emphasized that Plaintiff reported in
June 2013 that he was “not seeing a therapist,
psychologist, or psychiatrist, ” nor “ha[d] he
ever been hospitalized for psychiatric reasons.” AR 15
(citing AR 508). She further noted that “there is no
evidence that [Plaintiff] has ever used medication to manage
his depression and PTSD symptoms, ” and that
“[d]espite this lack of medication, [Plaintiff was]
calm and appropriate in his mental disability evaluation,
with a coherent thought process and full orientation.”
specifically as to Plaintiff's depression, the ALJ
observed that while Plaintiff reported depression during his
consultative psychological examination, he described it in
terms of being easily frustrated, lacking in motivation, and
having difficulty sleeping. AR 15 (citing AR 508). The ALJ
contrasted this description with Plaintiff's repeated
denials of depression during his VA visits, which the ALJ
interpreted as an indication that his depression “may
be situational or brought on by psychological
stressors.” AR 15 (citing AR 301, 343, 604, 631).
made similar observations concerning Plaintiff's PTSD,
noting that at his consultative examination, he reported PTSD
“after being in combat situations in Panama, Kuwait,
and Iraq, ” which allegedly made it difficult for him
to drive, led him to avoid fireworks, and produced
“intrusive thoughts and memories.” AR 15 (citing
AR 508). The ALJ also recounted Plaintiff's testimony
that he felt panic upon driving due to a “fear of
improvised explosives along the roadside.” AR 15
(citing AR 39-40). The ALJ found these accounts incongruent
with Plaintiff's self-reported activities of daily
living, where Plaintiff related that he was not only still
capable of driving both cars and motorcycles, but also
“actively involved with a motorcycle group that
regularly goes on rides and performs charity work.” AR
15 (citing AR 204, 214). Most importantly, the ALJ observed
that “like his depression, ” Plaintiff denied
having PTSD issues on numerous occasions to VA officials
(citing 301, 330, 460, 631).
then moved to step three, where she 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 14-17. The ALJ
began with Plaintiff's physical impairments, finding that
Plaintiff's sciatica and degenerative disc disease did
not meet Listing 1.04 (disorders of the spine), as the
“record [did] not contain evidence of nerve root
compression, spinal arachnoiditis, or lumbar spine stenosis
resulting in pseudoclaudication.” AR 17. The ALJ also
found that Plaintiff's right knee replacement failed to
satisfy Listing 1.02(A) (major dysfunction of a joint) or
Listing 1.03 (reconstructive surgery), as the record did not
show that Plaintiff “is unable to ambulate effectively
as required by the [L]isting.” AR 17. The ALJ
recognized that Plaintiff “sometimes uses a cane,
” but saw no evidence “to show he needs to use an
assistive device that limits the function of both upper
extremities, ” which would have been required for
Plaintiff to meet the definition of ineffective ambulation
under Listing 1.00(B)(2). AR 18.
then turned to Plaintiff's mental impairments and,
despite having found them to be non-severe, nevertheless
considered their severity under “the four broad
functional areas set out in the disability regulations for
evaluating mental disorders and in section 12.00C of the
Listing of Impairments.” AR 53. The ALJ determined the
paragraph B criteria of these Listings were not met
“[b]ecause [Plaintiff's] medically determinable
mental impairments cause no more than ‘mild'
limitation in any of ...