United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF JUDGE
MATTER is before the Court on Plaintiff Jennifer Vargas'
Motion to Reverse and Remand for a Rehearing, with
Supporting Memorandum (the “Motion”), (Doc.
22), filed September 6, 2018; Defendant Commissioner Nancy A.
Berryhill's Response to Plaintiff's Motion to
Reverse and Remand the Administrative Decision (the
“Response”), (Doc. 24), filed October 18, 2018;
and Ms. Vargas' Reply to Defendant's Response to
Motion to Reverse and Remand (the “Reply”),
(Doc. 25), filed November 19, 2018.
Vargas filed applications for disability insurance benefits
and supplemental security income on February 4, 2015.
(Administrative Record “AR” 194, 196). In both of
her applications, Ms. Vargas alleged disability beginning
November 4, 2014. (AR 194, 196). Ms. Vargas claimed she was
limited in her ability to work due to: post-traumatic stress
disorder (“PTSD”); anxiety; depression; and
chronic back pain. (AR 224).
Vargas' applications were denied initially on May 6, 2015
and upon reconsideration on September 16, 2015. (AR 133,
140). At Ms. Vargas' request, (AR 145), a hearing was
held on December 19, 2016 before Administrative Law Judge
(“ALJ”) Michael Leppala. (AR 33). Ms. Vargas and
Kathleen Mundy, an impartial vocational expert
(“VE”), testified at the hearing and Ms. Vargas
was represented by attorney Feliz Marisol Martone.
April 3, 2017 the ALJ issued his decision, finding Ms. Vargas
not disabled at any time between her protective filing date,
November 4, 2014, through the date of his decision. (AR 25).
Ms. Vargas requested review by the Appeals Council, (AR
191-93), which was denied, (AR 1-4), making the ALJ's
opinion the Commissioner's final decision for purposes of
Vargas, who is now represented by attorney Francesca
MacDowell, argues in her Motion that the ALJ: (1) incorrectly
determined she can perform work at a “medium”
exertion level despite her complaints of chronic back pain
and vertigo, (Doc. 22 at 3-9, 20-22); (2) erroneously
assessed Ms. Vargas' non-exertional limitations because
he did not properly consider the evidence of her excessive
crying and anxiety, id. at 10-14, 18-20; (3) did not
include, or explain the exclusion of, all of the limitations
assessed by State Agency physicians P. Walls, M.D. and J.
McWilliams, Ph.D., id. at 14-17; and (4) did not
present the VE with a correct residual functional capacity
(“RFC”) assessment, rendering reliance on her
testimony improper, id. at 22-24. The Court has
reviewed the Motion, the Response, the Reply, and the
relevant law. Additionally, the Court has meticulously
reviewed the administrative record. Because the ALJ did not
commit reversible legal error as alleged by Ms. Vargas, the
Court orders that Ms. Vargas' Motion be
DENIED and the case be DISMISSED
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) (citing Hamilton v. Sec'y of Health &
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)).
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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's
“failure to apply the correct legal standards, or to
show . . . that she has done so, are also grounds for
reversal.” Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996) (citing Washington v. Shalala,
37 F.3d 1437, 1439 (10th Cir. 1994)). A court should
meticulously review the entire record but should neither
re-weigh the evidence nor substitute its judgment for the
Commissioner's. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court's review is
limited to the Commissioner's final decision, 42 U.S.C.
§ 405(g), which is generally the ALJ's decision,
rather than the Appeals Council's denial of review.
O'Dell v. Shalala, 44 F.3d 855, 858 (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; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. 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. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
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
ALJ]'s findings from being supported by substantial
evidence.” 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)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
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 12 months.” 42 U.S.C.
§§ 423(d)(1)(A) (2015), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505(a), 416.905(a). In order to determine
whether a claimant is disabled, the Commissioner follows a
five-step sequential evaluation process (“SEP”).
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20
C.F.R. §§ 404.1520, 416.920.
first four steps of the SEP, the claimant bears the burden of
showing: (1) he is not engaged in “substantial gainful
activity;” (2) he 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 either (3) his impairment(s) meet or
equal one of the “listings” of presumptively
disabling impairments; or (4) he is unable to perform his
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). If the ALJ determines the claimant cannot engage in
his past relevant work, the ALJ will proceed to step five of
the evaluation process. At step five, the Commissioner bears
the burden of showing that the claimant is able to perform
other work in the national economy, considering the
claimant's RFC, age, education, and work experience.
Grogan, 399 F.3d at 1261.
Vargas claimed she was limited in her ability to work due to:
PTSD; anxiety; depression; and chronic back pain. (AR 224).
At step one, the ALJ determined that Ms. Vargas had not
engaged in substantial gainful activity since November 4,
2014, the alleged disability onset date. (AR 13). At step
two, the ALJ found that Ms. Vargas has the following severe
impairments: spine disorders; anxiety disorders; personality
disorders; and affective disorders. (AR 13-14). At step
three, the ALJ determined that none of Ms. Vargas'
impairments, solely or in combination, equaled one of the
listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR
four, the ALJ found that Ms. Vargas has the RFC to perform a
limited range of medium work with the following limitations:
she can lift and/or carry 50 pounds occasionally and 25
pounds frequently; she can sit for six hours in an eight-hour
workday, with normal breaks; she can stand and/or walk for
six hours in an eight-hour workday; she is limited to tasks
with two- to three-step instructions; she can have occasional
and intermittent contact with co-workers and supervisors; and
she is limited to seldom contact with the general public. (AR
formulating Ms. Vargas' RFC, the ALJ stated that he
considered Ms. Vargas' symptoms and the extent to which
those symptoms can reasonably be accepted as consistent with
objective medical and other evidence, as required by 20
C.F.R. §§ 404.1529, 416.929 and Social Security
Ruling (“SSR”) 96-4p. Id. The ALJ also
stated that he considered opinion evidence consistent with
the requirements of 20 C.F.R. §§ 404.1527, 416.927
and SSRs 96-2p, 96-5p, 96-6p, 06-3p. (AR 17). The ALJ
concluded that some of Ms. Vargas' impairments could be
expected to cause her alleged symptoms, but he found that the
intensity, persistence, and limiting effects that Ms. Vargas
described were not entirely consistent with the evidence in
the record. Id.
evaluating the medical evidence in the record, the ALJ stated
that he gave significant weight to the opinions of State
Agency reviewing physicians Dr. Walls and Dr. McWilliams. (AR
20). The ALJ explained that the State Agency physicians were
familiar with the Social Security disability standards and
their opinions were generally consistent with the other
objective medical evidence in the record, including Ms.
Vargas' mental status examination. Id. The ALJ
similarly afforded the opinion of State Agency medical
consultant R. Draper, M.D. “great weight, ”
opining that his conclusions are consistent with the other
medical evidence in the record and Ms. Vargas' positive
response to medication. (AR 17-18). Conversely, the ALJ
discredited the medical opinion of State Agency medical
consultant A. Mamaril, M.D., affording her opinion
“only some weight” because she did not have
access to the most recent medical evidence. (AR 17).
Ms. Vargas' treating physicians proffered a medical
opinion regarding her mental or physical impairments as they
relate to her limitations for purposes of determining
disability under the Social Security Act. However, the ALJ
discussed the treatment notes and findings of several medical
professionals who evaluated Ms. Vargas, including Rachel
Casias, P.T.A., Jericho Ayson, P.T., Christopher Swain
Loucks, M.D., Jeffery Hebert, M.D., Melissa Selinas, PA-C,
and Jessica Johnston, PA-C. (AR 17-19).
examining Ms. Vargas' medical history and her testimony
at the hearing, the ALJ found that Ms. Vargas is unable to
perform any of her past relevant work and proceeded to step
five of the SEP. (AR 22-23). At this step, the ALJ noted that
Ms. Vargas was 48 years old on the alleged disability onset
date, and therefore was classified as a “younger
individual” in accordance with the Regulations. (AR
22). However, Ms. Vargas subsequently changed age categories
and is now correctly classified as an individual
“closely approaching advanced age.” (AR 23). The
ALJ also determined that Ms. Vargas has at least a high
school education and is able to communicate in English.
the ALJ explained that if Ms. Vargas had the RFC to perform
the full range of medium work, a finding of not disabled
would be directed by Medical-Vocational Rule 203.29.
Id. However, the ALJ found that Ms. Vargas'
limitations impeded her ability to perform the full range of
medium work. Id. The ALJ therefore relied on the
testimony of the VE to determine applicable jobs Ms. Vargas
could perform in the national economy. Id. The ALJ
noted that the VE testified at the hearing that an individual
with Ms. Vargas' same age, education, work experience,
and RFC could perform the jobs of dishwasher, laundry worker,
and stocker. Id. After finding the VE's
testimony consistent with the Dictionary of Occupational
Titles, the ALJ adopted the testimony of the VE and concluded
that, because Ms. Vargas is capable of performing work
existing in significant numbers in the national economy, she
is not disabled pursuant to 20 C.F.R. §§
404.1520(g) and 416.920(g). (AR 24).
Vargas presents four arguments in her Motion before the
Court. First, Ms. Vargas alleges the ALJ's decision is
not supported by substantial evidence because the ALJ did not
properly consider evidence of her physical impairments,
specifically her chronic back pain and vertigo. (Doc. 22 at
3-9; 20-22). Similarly, Ms. Vargas next claims the ALJ's
decision is not supported by substantial evidence because he
did not properly consider evidence of her mental and
emotional impairments, specifically her excessive crying and
anxiety. Id. at 10-14, 18-20. In her third argument,
Ms. Vargas contends the ALJ failed to include, or explain the
exclusion of, several of the limitations assessed by State
Agency physicians Dr. Walls and Dr. McWilliams. Id.
at 14-17. Finally, Ms. Vargas argues the ALJ's reliance
on the VE's testimony was improper because the testimony
was based on an incorrect RFC assessment. Id. at
response, the Commissioner claims the ALJ's RFC
assessment properly accounts for Ms. Vargas' complaints
of back pain, vertigo, anxiety, and crying spells. (Doc. 24
at 8). In addition, the Commissioner contends the ALJ's
findings were consistent with Dr. Walls' opinions, and
therefore his failure to specifically address all of Dr.
Walls' report was harmless error. Id. at 13.
Finally, the Commissioner concludes, there is no legally
reversible error illustrated by Ms. Vargas' step-five
argument because the ALJ's decision is supported by
substantial evidence. Id. at 17.
The ALJ's Analysis of Ms. Vargas' Physical
Vargas first contends “[t]here is not substantial
evidence to support the ALJ's finding regarding the
physical requirements of medium level work.” (Doc. 22
at 9). Specifically, Ms. Vargas argues the ALJ incorrectly
relied on the medical opinion of Dr. Draper because evidence
dated after his report reveals that she was more limited than
Dr. Draper initially opined. (Doc. 22 at 4). In response, the
Commissioner posits that the additional evidence does not
undermine Dr. Draper's findings, but “rather it
merely shows that [Ms. Vargas] continued to complain of back
pain.” (Doc. 24 at 8). In addition, the Commissioner
highlights evidence supporting the ALJ's decision and
notes the conflicting reports found in the record. (Doc. 24
The ALJ's Reliance on Dr. Draper's Report
Ms. Vargas argues the ALJ's RFC assessment regarding her
physical limitations is not supported by substantial evidence
because the ALJ relied on the outdated medical opinion of Dr.
Draper. (Doc. 22 at 9). An ALJ's decision is based on
substantial evidence if “a reasonable mind might accept
[it] as adequate to support a conclusion.” Doyal v.
Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (citation
omitted). Upon review, the court cannot “reweigh the
evidence nor substitute its judgment for that of the
agency.” Bernal v. Brown, 851 F.2d 297, 299
(10th Cir. 1988) (citation omitted). Indeed, the court should
not “displace the agency'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).
the ALJ gave “great weight” to the medical
evaluation of Dr. Draper, finding that his report was
consistent with Ms. Vargas' ability to perform medium
level work. (AR 17-18). Further, the ALJ explained, Dr.
Draper is familiar with Social Security disability standards,
he conducted a “longitudinal review” of the
record, and his conclusions were consistent with the other
medical evidence presented. Id. The ALJ noted that