United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing, United States Magistrate Judge
MATTER comes before the Court on plaintiff Niyo
Hollander's Motion to Reverse and Remand for Payment of
Benefits, or in the Alternative, for Rehearing, with
Supporting Memorandum (Doc. 17), which was fully briefed on
September 14, 2017. See Docs. 19, 20, 21. The
parties consented to my entering final judgment in this case.
Docs. 3, 5, 6. Having meticulously reviewed the entire record
and being fully advised in the premises, I find that Mr.
Hollander's motion is not well-taken, and it will be
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands, and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A 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.” Id. While the Court
may not reweigh the evidence or try the issues de novo, its
examination of the record as a whole must include
“anything that may undercut or detract from the
ALJ's findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“‘The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or she is unable “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) the claimant is not
engaged in “substantial gainful activity;” (2)
the claimant has a “severe medically determinable . . .
impairment . . . or a combination of impairments” that
has lasted or is expected to last for at least one year;
and (3) the impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
Background and Procedural History
Hollander was born in 1972 and completed a bachelor's
degree. AR 48, 259. He served for over 13 years as a medic in
the United States Army, and worked for approximately six
months as a medical technician. AR 264. Mr. Hollander filed
an application for disability insurance benefits on May 16,
2015-alleging disability since February 15,
2009 due to post-traumatic stress disorder
(“PTSD”), ankylosing spondylitis,  plantar
fasciitis, neuropathy, acid reflux, and prediabetes. AR
229-34, 262. The Social Security Administration
(“SSA”) denied his claim initially on October 6,
2015. AR 163-66. The SSA denied his claims on reconsideration
on December 7, 2015. AR 168-71. Mr. Hollander requested a
hearing before an ALJ. AR 172. On April 27, 2016, ALJ Lillian
Richter held a hearing. AR 40-89. ALJ Richter issued her
unfavorable decision on August 31, 2016. AR 16-39.
found that Mr. Hollander met the insured status requirements
of the Social Security Act through March 31, 2014. AR 21. At
step one, the ALJ found that Mr. Hollander had not engaged in
substantial, gainful activity between February 15, 2009, his
alleged onset date, and March 31, 2014, his date last
insured. Id. At step two, the ALJ found that Mr.
Hollander suffered from the severe impairments of PTSD, major
depressive disorder, left thigh pain, and obesity.
Id. The ALJ found that Mr. Hollander's
migraines, hearing loss, gastroesophageal reflux disease
(“GERD”), and back pain were nonsevere. AR 22. At
step three, the ALJ found that none of Mr. Hollander's
impairments, alone or in combination, met or medically
equaled a Listing. AR 22-24. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Mr.
Hollander's RFC. AR 24-31. The ALJ found Mr. Hollander
had the RFC to
perform light work as defined in 20 CFR 404.1567(b) except
the claimant can occasionally balance, stoop, kneel, crouch,
and crawl. He can frequently climb ramps and stairs. He can
occasionally climb ladders, ropes, or scaffolds. He is
limited to simple and routine work. He can have occasional
contact with supervisors, coworkers, and members of the
public. He should not work in close proximity to others in
order to avoid distraction. He is limited to a workplace with
few changes in the routine work setting. He is limited to
making simple work-related decisions. He should avoid
exposure to unprotected heights.
AR 24-25. At step four, the ALJ concluded that Mr. Hollander
was unable to perform his past relevant work as an army medic
or a medical technician. AR 31-32. The ALJ found Mr.
Hollander not disabled at step five, concluding that he still
could perform jobs that exist in significant numbers in the
national economy-such as a marker, mailer sorter, and library
page. AR 32.
September 6, 2016, Mr. Hollander requested review of the
ALJ's unfavorable decision by the Appeals Council. AR
14-15. On November 23, 2016, the Appeals Council denied the
request for review. AR 1-3. Mr. Hollander timely filed his
appeal to this Court on January 18, 2017. Doc.
Mr. Hollander's Claims
Hollander raises five arguments for reversing and remanding
this case: (1) the ALJ failed to adequately explain how she
considered Mr. Hollander's disability determination from
the Department of Veterans Affairs (“VA”); (2)
the ALJ erred in assessing the medical evidence of Mr.
Hollander's mental limitations; (3) the ALJ erred in
relying on old consultative evaluations; (4) the ALJ erred in
relying on improper factors in determining Mr.
Hollander's RFC; and (5) the ALJ erred by failing to
conduct a function-by-function assessment. See Doc.
17 at 17-24. For the reasons discussed below, none of these
issues merits remand.
The ALJ Adequately Explained How She Considered Mr.
Hollander's Disability Determination From the
Hollander argues that the ALJ failed to adequately consider
evidence regarding his disability determination from the VA,
and failed to explain her reasons for rejecting the
“VA's view of the medical evidence.” Doc. 17
at 17-18. The Commissioner argues that the ALJ adequately
“discussed and weighed the VA disability rating.”
Doc. 19 at 18. For the reasons discussed below, I agree with
agency's decision regarding whether a claimant is
disabled is not binding on the SSA. 20 C.F.R. § 404.1504
(effective through March 26, 2017). Other agencies apply
different rules and standards than the SSA for determining
whether an individual is disabled, and “this may limit
the relevance of a determination of disability made by
another agency.” SSR 06-03p, 2006 WL 2329939, at *7
(Aug. 9, 2006). However, disability decisions from other
agencies, as well as the evidence the agencies relied on in
making their decisions, “may provide insight into the
individual's mental and physical impairment(s) and show
the degree of disability determined by these agencies based
on their rules.” Id. The SSA must
independently evaluate the opinion evidence used by the other
agencies in making their disability determinations in
accordance with the SSA's guidelines for weighing opinion
agency's disability decision is “evidence that the
ALJ must consider and explain why he [or she] did not find it
persuasive.” Grogan v. Barnhart, 399 F.3d
1257, 1262 (10th Cir. 2005) (internal citation omitted);
see also Baca v. Dep't of Health & Human
Servs., 5 F.3d 476, 480 (10th Cir. 1993)
(“Although findings by other agencies are not binding
on the Secretary, they are entitled to weight and must be
considered.”) (quotation omitted). The “relative
weight” to be given to another agency's
determination of disability “will vary depending upon
the factual circumstances of each case.” Chambliss
v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).
Hollander's case, the ALJ analyzed the VA's rating as
Only partial weight was given to the VA's opinions
regarding the claimant's medical conditions. The VA found
the claimant was 70% disabled due to PTSD [AR 562]. However,
the Social Security regulations provide the final
responsibility for determining whether a claimant is able to
work is solely reserved to the Commissioner. Giving
controlling weight to other opinions regarding disability
would, in effect, confer upon a treating source the authority
to make the determination or decision about whether an
individual is under a disability, and thus would be an
abdication of the Commissioner's statutory responsibility
to determine whether an individual is disabled (Social
Security Ruling 96-5p). I further note that the VA utilizes a
different standard for determining disability than does the
Social Security Administration. Accordingly, a finding of
disability by the VA is not binding upon me in this
proceeding. I have factored into consideration the many
opinions rendered by VA providers in connection with the
claimant's application for VA disability. I have accorded
these opinions significant weight because they appear to be
well supported by findings on examination and with the VA
medical evidence of record. These opinions are reflected in
the residual functional capacity.
record in this case does not contain an actual VA disability
rating decision. Instead, the record contains Mr.
Hollander's treatment records from the VA hospital, which
contain passing references to his numerical VA disability
rating, but do not include the VA's decision explaining
the rationale behind the award of VA disability benefits to
Mr. Hollander. See AR 562 (listing Mr.
Hollander's service connected/rated disabilities as part
of a patient consult request). The ALJ advised Mr.
Hollander's representative that the VA's rating
decision was missing from the record, and the representative
stated she would submit it after the hearing. AR 70-71, 88.
On May 23, 2016, the ALJ advised Mr. Hollander's
representative that she had not received any additional
evidence and that sshe would close the record in 10 days.
See AR 399. Mr. Hollander submitted additional
medical evidence, but did not submit the VA's disability
decision. See AR 1461-1818.
that there is no substantive decision from the VA in the
record, the ALJ was left with nothing more than the VA's
numerical rating to analyze. A “VA disability rating
decision . . . is similar to an ALJ's
decision in a Social Security proceeding, as opposed to the
VA's numerical rating standing
alone.” Rodgers v. Colvin, No. 5:13-CV-345-D,
2015 WL 636061, at *8 (E.D. N.C. Feb. 13, 2015) (emphasis
added); see also Burch-Mack v. Comm'r of Soc.
Sec., No. 8:15-CV-1167-T-JSS, 2016 WL 4087477, at *4-*5
(M.D. Fla. Aug. 2, 2016) (explaining differences between
VA's disability rating and VA's disability rating
decision). The ALJ correctly stated that whether the claimant
is “disabled” is the ultimate issue reserved to
the Commissioner; thus, another agency's finding that a
claimant is disabled receives no special weight or
significance. AR 30; 20 C.F.R. § 404.1527(d)(1)-(3)
(effective Aug. 24, 2012 to March 26, 2017) (opinions on
issues that are reserved to the Commissioner-such as whether
the claimant is “disabled”-are never entitled to
special significance); see also SSR 96-5p,
1996 WL 374183, at *2 (July 2, 1996) (“Giving
controlling weight to such opinions would, in effect, confer
upon the [VA] the authority to make the determination or
decision about whether an individual is under a disability,
and thus would be an abdication of the Commissioner's
statutory responsibility to determine whether an individual
Hollander's case, the ALJ adequately considered and
weighed the VA's disability rating in making her
decision. See Baca, 5 F.3d at 480. The ALJ gave the
VA's disability rating “partial weight, ” and
stated that she considered the medical opinions from Mr.
Hollander's VA providers. AR 30-31. The Court finds no
error in the ALJ assigning the opinion “partial
weight.” See Rodgers, 2015 WL 636061, at *9
(“Given the lack of evidence of record pertaining to
Claimant's VA disability rating and the medical evidence
and rationale underlying that rating, the undersigned
determines that the ALJ did not err by according little
weight to Claimant's numerical VA disability
rating.”). In addition, the ALJ independently evaluated
the opinion evidence of the VA providers, exactly as she was
required to do. See SSR 06-03p, 2006 WL 2329939, at
*7. The ALJ thoroughly explained how she determined that Mr.
Hollander was not disabled for the purposes of Social
Security disability. AR 21-33.
Hollander's argument that this case is like Winick v.
Colvin, 674 Fed.Appx. 816 (10th Cir. 2017) (unpublished)
is not persuasive. Doc. 17 at 18. In Winick, the ALJ
rejected a VA rating decisio ...