United States District Court, D. New Mexico
ARTHUR B. ARGUELLO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
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”),
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.
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.
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.
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. AR 18, 28.
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.
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.
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
Standard of Review
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
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).
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. See Bowen v. Yuckert, 482 U.S. 137, 146
(1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th
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
FACTUAL BACKGROUND RELEVANT TO THIS APPEAL
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.
Dr. Krueger's opinion
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”) and the Beck Depression
Inventory (“BDI”), and apparently reviewed at least
some of Plaintiff's medical records. AR 539.
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.
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. AR 541.
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, 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”). 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.
Krueger ultimately assessed the following functional
limitations, concluding that Plaintiff “has multiple
impairments” and “significant functional
impairment” [AR 543]:
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]
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]
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.
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.
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 ...