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Thompson v. Berryhill

United States District Court, D. New Mexico

May 29, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS 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”), [1] 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.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         After 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).

         Plaintiff filed the instant appeal on March 21, 2017. ECF No. 1.


         Plaintiff's 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.


         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.[2] 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. 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.

         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 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).

         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) (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 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.

         To 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.” AR 15.

         Then, 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).

         The ALJ 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).

         The ALJ 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.

         The ALJ 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[3] were not met “[b]ecause [Plaintiff's] medically determinable mental impairments cause no more than ‘mild' limitation in any of ...

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