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Padilla v. Berryhill

United States District Court, D. New Mexico

August 13, 2018

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



         THIS MATTER is before the Court upon Plaintiff Peter Padilla's (“Plaintiff's”) Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (“Motion”), filed on October 12, 2017. ECF No. 18. The Commissioner responded on December 4, 2017. ECF No. 20. Plaintiff filed his Reply on January 5, 2018. ECF No. 22. Having meticulously reviewed the entire record and the parties' briefing, the Court concludes that the Administrative Law Judge's (“ALJ's”) ruling should be AFFIRMED. Therefore, and for the further reasons articulated below, the Court will DENY Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff was born March 7, 1989. Administrative R. (“AR”) 25. He graduated from high school and attended some community college classes, although Plaintiff was not sure how long he attended community college. AR 25, 45. Plaintiff previously worked for Alvarado Concepts in 2011 and 2012, although he did not remember that job, and thought he had worked at a fast food business during that time period. AR 38-39. Plaintiff also worked at the Downs race track in April 2013. AR 46. Plaintiff filed an application for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) on April 1, 2013, alleging onset of disability beginning March 5, 2013. AR 11. The Social Security Administration (“the SSA”) denied Plaintiff's claim initially and on reconsideration. AR 11. Plaintiff then requested a hearing, which was held in front of ALJ Eric Weiss on October 14, 2015. AR 11. Plaintiff testified at the hearing, as did Evelyn R. Hartman, a vocational expert (“VE”). AR 11. Plaintiff was represented by counsel. AR 11.

         On January 8, 2016, ALJ Weiss issued his decision that Plaintiff was not disabled from March 5, 2013, through the date of his decision. AR 26-27. Plaintiff subsequently asked the SSA's Appeals Council (“AC”) to review ALJ Weiss's decision, but the AC denied his request. AR 1. As a consequence, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2017). Plaintiff timely filed his appeal in this Court on March 10, 2017. ECF No. 1.


         Plaintiff makes two primary claims. First, he contends that the ALJ improperly picked and chose from the non-exertional limitations assessed by examining psychologist Mark A. Arcuri, Ph.D, and non-examining state agency psychologists Dr. Renate Wewerka, Ph.D., and Dr. Suzanne Castro, Psy.D. Pl.'s Mot. 18-21, ECF No. 18. Specifically, Plaintiff asserts that the ALJ failed to include certain limitations from their opinions in Plaintiff's Residual Functional Capacity (“RFC”) without explaining his failure to include them. Id. at 18-21. Second, Plaintiff alleges that the ALJ erred by failing to conduct a Drug Addiction and Alcohol (“DAA”) determination in accordance with Social Security Ruling (“SSR”) 13-2p. Id. at 21-24.[1]


         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. 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 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, 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) (2018). 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 or her past work, then the Commissioner must show at the fifth step 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).


         At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2014, and had not engaged in substantial gainful activity since the alleged disability onset date of March 5, 2013. AR 14. At step two, the ALJ determined that Plaintiff had the following severe impairments: reading disorder; mathematics disorder; disorder of written expression; learning disorder, not otherwise specified; psychotic disorder; post-traumatic stress disorder (“PTSD”); anxiety state; depressive disorder; schizophrenia; traumatic brain injury; and alcohol abuse. AR 14. The ALJ used the Psychiatric Review Technique (“PRT”) to determine that the severity of Plaintiff's mental impairments “do not meet or medically equal the criteria of listings 12.02, 12.03, 12.04, 12.05, 12.06, and 12.09.” AR 15-17.

         The ALJ also considered whether the following conditions were severe: status post-hernia repair, history of right thumb laceration, and history of cellulitis with MRSA of the lower right extremity. AR 14. The ALJ concluded that those conditions were not severe, in part because of Plaintiff's inconsistency in “his reporting as to when and how he obtained the inju[ries]” and because “very few significant findings were noted at an August 2013 consultative examination performed by Dr. [Sylvia M.] Ramos, [M.D.].” AR 14. In particular, “Dr. Ramos noted that sometimes the extent of [Plaintiff's] effort expended in the tasks presented to him in the evaluation was not clear” and Dr. Ramos ultimately “opined that [Plaintiff] could sit, stand, walk, lift, carry, handle small objects, hear, speak and travel with no difficulties.” AR 14. Because the ALJ accorded Dr. Ramos's opinion “great weight, ” and the ALJ found “no evidence that any of these conditions have either met the durational requirements of this program, or that they create any specific functional limitations regarding [Plaintiff's] ability to perform work related activities[, ]” the ALJ found that Plaintiff's status post-hernia repair, history of right thumb laceration, and history of cellulitis with MRSA of the lower right extremity were not severe impairments. AR 14-15.

         At step four, the ALJ determined Plaintiff's RFC as follows:

After careful consideration of the entire record, I find that [Plaintiff] has the [RFC] to perform a full range of work at all exertional levels but with the following non[-]exertional limitations: [Plaintiff] is able to understand, remember and carry out simple instructions and make commensurate work related decisions but not at a production pace, and in a work setting with few changes. [Plaintiff] is able to interact occasionally with supervisors, coworkers and the public. [Plaintiff] is able to maintain concentration, persistence and pace for two (2) hours at a time during the workday, with normal breaks.

AR 17.

         In determining Plaintiff's RFC, the ALJ considered Plaintiff's testimony [AR 18-19, 22, 38-58], the extensive medical record, and other non-medical evidence.[3] AR 17-25. The ALJ considered the opinions of treating psychologist Dr. Arcuri [AR 298-313], consultative physical examiner Dr. Ramos [AR 315-20], consultative psychological examiner Dr. Susan Flynn, Ph.D. [AR 321-25], state agency disability consultants Dr. Wewerka [AR 70-81] and Dr. Castro [AR 96-108], and Certified Nurse Practitioner (“CNP”) Marie Mugavin, Ph.D. [AR 446-51][4]. The ALJ considered Plaintiff's transcripts from Rio Grande High School [AR 273-75] and Central New Mexico Community College [AR 287-97], records from Dragonfly Counseling Associates [AR 346-60], records from the University of New Mexico Health Sciences Center [AR 381-445], treatment records from Albuquerque Health Partners [AR 361-80], treatment records from Sage Neuroscience Center [AR 330-45], and third party statements from Allen Methvin [AR 276-78] and Gloria Gutierrez [AR 285-86]. Lastly, the ALJ reviewed the hearing testimony of the VE [AR 26, 58-65].[5]

         Dr. Mark A. Arcuri, Ph.D.

         Dr. Arcuri examined Plaintiff on November 28, 2012. AR 298. The ALJ ultimately afforded “significant weight” to Dr. Arcuri's opinion because “his objective findings, as well as [Plaintiff's] rather benign subjective complaints to Dr. Arcuri, support the opinion.” AR 22-23. Plaintiff was referred to Dr. Arcuri by Monica Lopez at the New Mexico Division of Vocational Rehabilitation because, according to Dr. Arcuri, Plaintiff “wants to attend school and because of a history of learning problems he will likely need assistance from Special Services at CNM.” AR 298. Dr. Arcuri noted that he did not have any records available to review, and that there were “possible mental health concerns as well.” AR 298. Plaintiff reported to Dr. Arcuri a hernia repair resulting in chronic pain that Plaintiff stated was “debilitating and significantly disrupt[ed] his life.” AR 299. Dr. Arcuri did not otherwise have any information about Plaintiff's medical history. AR 298-99.

         Plaintiff told Dr. Arcuri that he was married and living at Joy Junction, a homeless shelter in Albuquerque, with his wife and daughter. AR 298. During later examinations and evaluations, Plaintiff told other health care providers that he was not married and did not have any children, “but that he lived with his long-term girlfriend until she assaulted him with a skateboard in April 2013.” AR 19. Plaintiff also told Dr. Arcuri that he “would like to get health insurance through the State of New Mexico, ” but “claims he ‘cannot get the paperwork together.'” AR 298. Plaintiff reported that he did not have a driver's license because of “concern about fossil fuels, ” but did report to Dr. Arcuri that he drank socially and used marijuana daily for pain and anxiety. AR 308.

         Dr. Arcuri observed that Plaintiff was “neatly groomed” and “cooperative and friendly during testing and he seemed forthright with information.” AR 299. Dr. Arcuri also observed that Plaintiff was “a personable man who presented as deeply concerned about his situation and with related anxiety.” AR 299. Plaintiff “was unable to complete self-report instruments due to reading problems, ” but Dr. Arcuri opined that Plaintiff had “put forth a good effort in today's testing, ” and therefore “the current test results are likely to be an accurate assessment of his present cognitive, psychological, and academic functioning.” AR 299.

         To evaluate Plaintiff, Dr. Arcuri interviewed him, obtained a brief psychosocial history, stated that he reviewed supporting records (even though he had previously stated in the report that he did not have any medical records available to review), and conducted several standardized tests. AR 299. Plaintiff scored 27 out of 30 points on the Mini Mental Status Examination and “[t]here was no evidence of problems with executive functioning or with general information retrieval.” AR 299-300. Plaintiff committed errors in Attention and Calculation, which were “most likely related to his academic limitations.” AR 300. With respect to cognitive status, Dr. Arcuri observed that Plaintiff was alert, oriented to person, place, time, and situation, and did not have any active suicidal or homicidal ideation. AR 300. Plaintiff also denied ever experiencing hallucinations or delusions. AR 300. Plaintiff described his mood as “okay” and appeared anxious, but his affect was full-range and mood-congruent, his speech was normal, and his verbalizations were “expansive and appropriate to questions asked and in general conversation.” AR 300. Plaintiff “was able to think in a future-oriented way, and he could elucidate the general steps required to reach possible goals. His insight seemed fair.” AR 300. Plaintiff's performance on a standardized test designed to ascertain frontal lobe functioning, which is related to executive planning and related skills, “suggested no problems[.]” AR 300.

         Plaintiff's performance on a different standardized test placed him “at the lower end of the [a]verage range of intellectual functioning, ” and demonstrated that his “propensity for nonverbal . . . tasks is significantly better than for verbal tasks.” AR 303. Dr. Arcuri noted that “[i]ndividuals who score as [Plaintiff] did tend [to] do best with hands-on, nonverbal tasks in most areas of learning and work.” AR 303. Plaintiff's results from yet another standardized test indicated that “he works more slowly than approximately 68% of his age peers do . . . suggesting that he will probably want to avoid working in strictly time-sensitive settings. In school, he will benefit from time accommodations to reduce stress and further degradation of processing speed, so that he has the opportunity to perform to the best of his ability.” AR 304.

         Dr. Arcuri opined, “[Plaintiff] is a man whose intellectual ability as tested today is in the Low Average (verbal) to Average (nonverbal) range and with weak memory and processing speed skills relative to his age peers although the scores are consistent with his overall abilities. The most significant finding among the cognitive data was of problems with general verbal processing.” AR 304. Dr. Arcuri continued, “He will do best on tasks that rely on non-verbal and in the moment reasoning, such as the ability to examine a problem, draw upon visual-motor and visual-spatial skills, organize thoughts, create solutions, and then test them.” AR 304. Plaintiff was likely to have problems with “comprehending written information, difficulties with proofreading, and a dislike of having to perform under stress, and a general need for more time in order to complete tasks to the best of his ability.” AR 304.

         Dr. Arcuri identified the following considerations that would give Plaintiff “the best chance of succeeding vocationally”:

(1) Emphasis on nonverbal tasks in general for learning and in the workplace;
(2) In school use peer-mediated learning: Pair off with another student of different ability levels to review notes, study for a test, read aloud to each other, etc.;
(3) Extra time on timed tasks as needed; it is preferred that he will work in untimed settings and in school he will benefit from the maximum 2x for examinations;
(4) Hands-on/verbal training with supervision until tasks are mastered, reminders in [the] form of pictures and diagrams, etc.;
(5) Extra time on timed tasks as needed; it is preferred that he will work in untimed or loosely timed settings;
(6) A Reader for examinations; consider books on tape if available and/or study-buddy to help with reading;
(7) Tape record lectures;
(8) Use of a calculator on mathematics tests, as well as a notebook for formulas if necessary; [and an]
(9) Environment where success does not depend on formal academic writing skills.

AR 304, 310. Dr. Arcuri opined that “[Plaintiff's] verbal processing, memory, and processing speed abilities constitute potential vocational barriers in that he does not work as efficiently as others do on tasks that rely on these skills, which puts him at a disadvantage.” AR 304-05. Plaintiff's symptoms “reportedly interfere with his ability to carry out day-to-day tasks ...

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