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Arguello v. Berryhill

United States District Court, D. New Mexico

June 26, 2018

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



         THIS MATTER is before the Court on Plaintiff‘s “Motion to Remand or Reverse Agency Decision” [ECF No. 18] and “Brief in Support of Motion to Reverse or Remand Agency Decision” (collectively, “Motion”), [1] filed on July 11, 2017. ECF No. 19. The Commissioner responded on August 21, 2017. ECF No. 21. Plaintiff replied on September 4, 2017. ECF No.

         22. On September 25, 2017, U.S. District Judge Judith C. Herrera referred the above-captioned cause to this Court for recommended findings and disposition. ECF No. 27. Having meticulously reviewed the entire record and the briefing, the Court finds that the Motion is not well-taken and recommends that it be denied.

         I. BACKGROUND

         Plaintiff was born on July 29, 1966. Administrative R. (“AR”) 27. After earning his high school diploma, Plaintiff started working as a ranch hand in the Espanola Valley in 1998 and continued that work for fourteen years with the same employer. See AR 24, 37-38. Plaintiff first stopped working on January 16, 2013, following a motor vehicle accident. AR 39-40. In March 2013, Plaintiff returned to work for a month until he injured his back in April 2013, an injury that Plaintiff claimed left him unable to work. AR 40. A week after Plaintiff's back injury, his employer terminated his employment. AR 40.

         On May 1, 2013, Plaintiff filed an application for disability insurance benefits that was denied on July 17, 2013. AR 18. On March 28, 2014, Plaintiff filed his second application for disability insurance benefits, alleging a disability onset date of January 16, 2013. AR 18. Plaintiff's application was denied initially and upon reconsideration. AR 18. Plaintiff then requested a hearing, which was held on August 5, 2015. AR 18. Plaintiff testified and was represented by counsel. AR 18. Because Plaintiff's first disability application had been denied on July 17, 2013, Administrative Law Judge (“ALJ”) Deborah L. Rose considered the relevant time period for Plaintiff's second disability application to be July 18, 2013 through the date of her decision, August 28, 2015.[2] AR 18, 28.

         The ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. AR 28. The Social Security Administration's (“SSA's”) Appeals Council denied Plaintiff's request for review on December 21, 2016. AR 1. Consequently, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2015). Plaintiff timely filed his appeal with the U.S. District Court on February 7, 2017. ECF No. 1.


         Plaintiff asserts four claims of error. First, Plaintiff argues that the ALJ erred in her evaluation of the opinion of Dr. Robert Krueger, Ph.D., a consultative psychological examiner. Pl.'s Mot. 6-11, ECF No. 19. Specifically, Plaintiff argues that the ALJ erred by discounting Dr. Krueger's opinion because he relied upon Plaintiff's statements and because the ALJ concluded that Dr. Krueger did not rely on objective evidence. Id. at 6-8. Additionally, Plaintiff asserts that the ALJ erred by concluding that the totality of the evidence did not support Dr. Krueger's opinion. Id. at 9. Plaintiff also contends that the ALJ erred by discounting Dr. Krueger's opinion because Plaintiff did not receive treatment for pain from May 2014 to January 2015. Id. at 10.

         Plaintiff next claims that this case should be remanded so that the ALJ can consider the report of Dr. Michael F. Gzaskow, M.D., a consultative psychiatrist who provided a report as part of Plaintiff's third application for disability benefits, which was filed after the application at issue in this appeal. Id. at 11-12. In his penultimate claim, Plaintiff argues that the ALJ erred by basing her unfavorable assessment of Plaintiff's credibility solely on his testimony that his physicians suggested that he use a cane, when the ALJ found that the medical evidence did not support Plaintiff's statement. Pl.'s Mot. 12-13. Finally, Plaintiff asserts that the ALJ erred by misstating the applicable burden of proof at step five. Id. at 15-16.


         A. Standard of Review

         The Court's review of an ALJ's decision denying disability 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. 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 at 1214.

         As for review of an 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).

         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) (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. 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 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 detail).


         The Court will summarize Dr. Krueger's opinion, as well as the portions of Plaintiff's testimony during the hearing on this matter that are relevant to the issues on appeal.

         A. Dr. Krueger's opinion

         Plaintiff's counsel arranged for Plaintiff to be psychologically evaluated by Dr. Robert Krueger, Ph.D., “to assist with processing of his disability claim[, ]” among other purposes. AR 539. Dr. Krueger evaluated Plaintiff on May 20, 2015. AR 539. During the evaluation, Dr. Krueger interviewed Plaintiff, administered the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”)[3] and the Beck Depression Inventory (“BDI”)[4], and apparently reviewed at least some of Plaintiff's medical records.[5] AR 539.

         Plaintiff told Dr. Krueger about a motor vehicle accident that occurred in January 2013. AR 539. Plaintiff has since experienced anxiety while driving, and “[gets] shivers when [he drives] by the accident.” AR 540. Plaintiff has frequently experienced what Dr. Krueger characterized as “disturbing flashback memories about the [motor vehicle accident.]” AR 540. Plaintiff also “described having an increased startle response and said he is sensitive to loud noises[.]” AR 540. Plaintiff stated that he has some anger issues with respect to aggressive drivers, has “probable panic attacks around crowds of people[, ]” and has difficulties with depression, although he noted that he feels down when he does not take his anti-depression medication. AR 540-41. Plaintiff stated that he is “very anxious when he is around aggressive drivers” and confirmed hypervigilance when Dr. Krueger asked him about it. AR 540.

         With respect to his mental health, Plaintiff reported problems with both depression and anxiety. AR 540. Plaintiff also reported that he has “severe and chronic sleep disturbance” and that he “frequently wakes up with pain.” AR 540. Dr. Krueger asked Plaintiff about whether he had a history of suicidal behavior, to which Plaintiff responded, “Before I did, and I can't do half of what I used to do.” AR 541. Dr. Krueger also asked Plaintiff about counseling, and Plaintiff stated that he received counseling for a few months.[6] AR 541.

         Dr. Krueger concluded that Plaintiff had anxiety-related symptoms as well as symptoms that are consistent with Post-Traumatic Stress Disorder (“PTSD”), and thus Plaintiff qualified for a diagnosis of PTSD. AR 541. Dr. Krueger opined, “[Plaintiff] also reported having difficulties with depression, but he [does] not appear to meet the full criteria for having a major depressive disorder now.” AR 541. Plaintiff scored a 20 on the BDI[7], which according to Dr. Krueger was a “moderately elevated score, ” suggesting “that he does have significant problems with depression now.” AR 542. Dr. Krueger concluded that Plaintiff showed “significant evidence of depression.” AR 543. Dr. Krueger also referred to Plaintiff's “recent” score of 45 on the Global Assessment of Functioning (“GAF”).[8] However, Dr. Krueger did not state whether he administered the GAF, or when the GAF was administered to Plaintiff. Dr. Krueger also did not otherwise substantively refer to Plaintiff's GAF score. See AR 542-43.

         Dr. Krueger ultimately assessed the following functional limitations, concluding that Plaintiff “has multiple impairments” and “significant functional impairment” [AR 543]:

Mild impairments:
Understanding, remembering, and following simple work instructions [AR 543] Significant impairments:
Visual motor working speed [AR 543] Moderate impairments:
Understanding, remembering, and following complex or detailed instructions [AR 543]
Relationships with coworkers, supervisors, and the general public [AR 543]
Being aware of and reacting appropriately to dangers [AR 544] Marked impairments:
Maintaining pace and persistence in most work environments [AR 543] Adjusting to changes in work environment [AR 543] Traveling to distant places alone [AR 543]

         B. Plaintiff's Testimony

         Plaintiff testified on August 5, 2015, and was represented by counsel. AR 35. The ALJ questioned Plaintiff first, beginning by asking Plaintiff about his last fifteen years of work history. AR 38. In 2000, Plaintiff worked as a ranch hand, which involved lifting bags of cement and bales of hay that sometimes weighed over 100 pounds. AR 39. Plaintiff worked for the same employer for fourteen years. AR 39. Plaintiff testified that his job involved mostly physical labor, although sometimes he worked on material lists for projects. AR 39.

         Plaintiff confirmed that he was injured in a motor vehicle accident on January 16, 2013. AR 39. Plaintiff did not work for approximately two and a half months following the accident, but returned to work in April 2013. AR 40. After a month, Plaintiff testified that he “popped [his] back out again, ” thereby reinjuring it, when he “was putting the bales of hay to load [and] feed the horses.” AR 40. Plaintiff could not work, and after a week his employment was terminated. AR 40. Plaintiff testified that, after the accident, he suffered “severe back pain, upper and lower, and head and neck and into [his] shoulder.” AR 41.

         Plaintiff explained that he later had back surgery, a lumbar laminectomy, in December 2013. AR 40. Prior to the surgery, Plaintiff recounted that he used a walker, and following the surgery, Plaintiff developed mental health problems. AR 40-41. Plaintiff “got really depressed and [felt] a lot of anxiety ...

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