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Platero v. Berryhill

United States District Court, D. New Mexico

November 20, 2018

HAWK WARREN PLATERO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Jerry H. Ritter U.S. Magistrate Judge

         This matter comes before the Court on Plaintiff Hawk Warren Platero's Motion to Reverse and Remand to Agency for Rehearing with Supporting Memorandum, [Doc. 18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18], filed March 9, 2018');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to the undersigned to conduct dispositive proceedings in this matter, including the entry of final judgment. [Docs. 4, 10, 11]. Having studied the parties' positions, the relevant law, and the relevant portions of the Administrative Record (“AR”), [1] the Court denies Mr. Platero's Motion for the reasons set forth below.

         I) INTRODUCTION

         This Court's institutional role is to ensure that the Commissioner's decision to deny Social Security benefits is supported by the law and substantial evidence. In this case, Mr. Platero argues that the ALJ assigned to his claim failed to weigh the medical opinions of two of his treating physicians. Mr. Platero also argues that the ALJ's RFC finding that he is able to perform jobs with up to an SVP of 3 is unsupported by substantial evidence. For these reasons, Mr. Platero argues that his case must be remanded to the Administration for further proceedings.

         The Court is not convinced that the ALJ erred. First, Mr. Platero has failed to demonstrate that the two “opinions” at issue are truly “medical opinions” as defined by the regulations. This is important, as the ALJ is not required to weigh records that are not “medical opinions.” Second, even assuming arguendo that the two “opinions” at issue should have been weighed, Mr. Platero has failed to demonstrate how they are inconsistent with his RFC. This renders any error by the ALJ in failing to weigh the opinions harmless. Finally, Mr. Platero has failed to demonstrate that he is unable to perform jobs with an SVP of 3 or below, and the Court finds that the ALJ's determination that he can perform such jobs is supported by substantial evidence. For these reasons, the Court must affirm the ALJ's decision denying benefits.

         II) BACKGROUND

         Mr. Platero filed an application with the Social Security Administration for supplemental security income benefits under Title XVI of the Social Security Act on April 9, 2014, with a protective filing date of March 7, 2014. AR at 160-164. He initially alleged a disability onset date of January 31, 2014, the day he stopped working, due to “Bipolar and OCD, ” but later amended his alleged disability onset date to April 9, 2014, on the advice of his attorney. AR at 18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">180. The Administration denied Mr. Platero's claim initially and upon reconsideration, and he requested a de novo hearing before an administrative law judge (“ALJ”). AR at 84-120.

         ALJ James Linehan held an evidentiary hearing on October 13, 2016. AR at 38-79. On November 8, 2016, the ALJ issued an unfavorable decision, finding that Mr. Platero has not been under a disability from his alleged onset date through the date of his decision. AR at 17-37. In response, Mr. Platero filed a “Request for Review of Hearing Decision/Order” on January 10, 2017. AR at 15-16. After reviewing his case, the Appeals Council denied Mr. Platero's request for review on August 15, 2017. AR at 1-6. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         A claimant seeking disability benefits must establish that he 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4).[2]

         At Step One of the sequential evaluation process, the ALJ found that Mr. Platero has not engaged in substantial gainful activity since his amended alleged onset date. AR at 22. At Step Two, he determined that Mr. Platero has the severe impairments of “affective and anxiety disorders[.]” AR at 22. At Step Three, the ALJ concluded that Mr. Platero's impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 23-24. Mr. Platero does not challenge these findings on appeal.

         When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). “RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL 37418');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">184, at *2. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 37418');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">184, at *1. In this case, the ALJ determined that Mr. Platero retains the RFC to:

perform a full range of work at all exertional levels but with the following nonexertional limitations: He would have nonexertional limitations in that he would be limited to work that is of SVP level 3 or less as defined in the Dictionary of Occupational Titles. He would have the ability to understand, remember, and carry out detailed written or oral instructions and to set realistic goals and plans independently of others. He would have the ability to interact appropriately with supervisors, co-workers and occasionally the public.

AR at 24.

         Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational Expert, the ALJ determined that Mr. Platero can perform his past relevant work as a janitor. AR at 31. Moreover, the ALJ found that there are jobs that exist in significant numbers in the national economy that Mr. Platero can perform despite his limitations. AR at 32. Specifically, the ALJ determined that Mr. Platero retains the functional capacity to work as a laundry worker, industrial sweeper-cleaner, and linen-room attendant despite his impairments. AR at 32. Accordingly, the ALJ determined that Mr. Platero is not disabled as defined in the Social Security Act and denied benefits. AR at 33.

         III) LEGAL STANDARDS

         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “‘Substantial evidence' means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Racette v. Berryhill, 734 Fed.Appx. 592, 595 (10th Cir. 2018');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18) (quoting Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004)). “It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Court reviews the record as a whole, does not reweigh the evidence, and cannot substitute its judgment for that of the agency. White v. Berryhill, 704 Fed.Appx. 774, 776 (10th Cir. 2017) (citing Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008)). Moreover, “merely technical omissions in the ALJ's reasoning do not dictate reversal. In conducting [my] review, [I] should, indeed must, exercise common sense.” Keyes-Zachary, 695 F.3d at 1166.

         IV) ANALYSIS

         Mr. Platero argues that “[t]he ALJ erred by failing to evaluate properly the medical opinions of treating sources Julia Kennedy, Psy.D., and Roger T. Pray, Ed.D., Ph.D., ” and “erred by failing to apply properly the requirements of SSR 96-8p.” [Doc. 18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18');">18'); ...


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