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Rael v. Berryhill

United States District Court, D. New Mexico

December 19, 2018

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


          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Stephanie Rael's Motion to Reverse/ Remand and Memorandum in Support of the Same (Doc. 23), which was fully briefed on February 5, 2018. Docs. 25, 26, 27. The parties consented to my entering final judgment in this case. Docs. 5, 8, 9. Having meticulously reviewed the record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) applied the correct legal standards and that her decision is supported by substantial evidence. The Court therefore DENIES Ms. Rael's motion and dismisses this case with prejudice.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] 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).

         “Substantial 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 an administrative agency's findings from being supported by substantial evidence. We may not displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (internal quotations and citations omitted) (brackets in original).

         II. Applicable Law and Sequential Evaluation Process

         To 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. 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 416.920; 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[2] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 416.920(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.

         III. Background and Procedural History

         Ms. Rael is a 51-year-old single woman with an eighth-grade education.[3] AR 39, 72, 139.[4] Ms. Rael lives with a friend, her two minor daughters, and her grown son. AR 40, 140. Ms. Rael's son receives disability benefits, and she is the payee for her son's benefits. AR 40. Ms. Rael filed an application for Supplemental Security Income on February 19, 2013, alleging disability beginning January 1, 1998, due to a personality disorder, panic attacks, bipolar disorder, post-traumatic stress disorder (“PTSD”), and asthma. AR 139-47, 159. The Social Security Administration (“SSA”) denied her claims initially and on reconsideration. AR 71-95. Ms. Rael requested a hearing on January 27, 2014. AR 68-70, 105-06. On August 28, 2015, ALJ Michelle Lindsay held a hearing, at which Ms. Rael and a vocational expert (“VE”) testified. AR 28-67. Although informed of her right to representation, Ms. Rael chose to appear and testify without the assistance of an attorney or other representative. AR 30-33, 138. ALJ Lindsay issued her unfavorable decision on February 24, 2016. AR 11-27.

         At step one, the ALJ found that Ms. Rael had not engaged in substantial, gainful activity since February 19, 2013, [5] the application date. AR 16. Because Ms. Rael had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. Id. At step two, the ALJ found that Ms. Rael had the following severe impairments: “major depressive disorder without psychosis, and generalized anxiety disorder.” AR 16. The ALJ also found at step two that Ms. Rael's asthma and obesity were non-severe impairments. AR 16-17. At step three, the ALJ found that none of Ms. Rael's impairments, alone or in combination, met or medically equaled a Listing. AR 17-19. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Rael's RFC. AR 19-22. The ALJ found that:

the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant is limited to understanding, remembering, and carrying out simple instructions. She is able to maintain attention and concentration to perform simple tasks for two hours at a time without requiring redirection to task. She can have only occasional public contact. She can have only superficial interactions with co-workers and supervisors. She requires work involving no more than occasional change in the routine work setting.

AR 19.

         At step four, the ALJ found that Ms. Rael had no past relevant work and, therefore, transferability of job skills was not an issue. AR 22. The ALJ found that Ms. Rael was not disabled at step five. Relying on the VE testimony, the ALJ concluded that Ms. Rael still could perform jobs that exist in significant numbers in the national economy-such as a cleaner/housekeeper, a bakery worker/conveyor line, and a motor polarizer. AR 22-23. Ms. Rael requested review by the Appeals Council, which denied the request on January 31, 2017. AR 1-5, 8-9. Ms. Rael timely filed her appeal to this Court on April 3, 2017. Doc. 1.[6]

         IV. Ms. Rael's Claims

         Ms. Rael raises three main arguments for reversing and remanding this case: (1) that the ALJ erred in finding that Ms. Rael's asthma was non-severe; (2) that the ALJ failed to develop the record about Ms. Rael's impairments; and (3) that the VE testimony is inconsistent with the RFC. Doc. 23 at 1, 6-11. Ms. Rael also presents sub-issues and arguments which are poorly developed. For example, in plaintiff's “Procedural History and Sequential Evaluation” section, she argues that the ALJ failed to develop the record with regard to Ms. Rael's obesity. Doc. 23 at 4. Ms. Rael, however, presents no legal authority or argument that establishes that the ALJ's findings with respect to plaintiff's obesity are not supported by substantial evidence or that the ALJ failed to apply the correct legal standards. See generally Doc. 23. Ms. Rael further asserts that the ALJ failed to “mention or consider” several specific treatment notes regarding her anxiety. Doc. 23 at 5. Again, however, Ms. Rael does not present any legal authority or argument that establishes how this failure was error.[7] The Court will consider and discuss only the contentions that have been adequately briefed. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.2004) (“The scope of our review . . . is limited to the issues the claimant . . . adequately presents on appeal.”)).

         V. Discussion

         A. The ALJ's Step-Two Findings

         1. The ALJ's Finding that Ms. Rael's Asthma was Non-Severe Ms. Rael contends that “the ALJ's holding that plaintiff's asthma was non-severe is contrary to the substantial evidence and is based on improper baseless inferences about ...

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