United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. 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.”)
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
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).
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) (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).
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).
THE ALJ'S DECISION
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.
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.
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
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. 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]. 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,
Mark A. Arcuri, Ph.D.
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.
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.
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.
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
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
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
Arcuri identified the following considerations that would
give Plaintiff “the best chance of succeeding
(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,
(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 ...