United States District Court, D. New Mexico
TERENCE A. KIRO,, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,, Defendant.
MEMORANDUM OPINION AND ORDER
C. YARBROUGH United States Magistrate Judge,
MATTER is before the Court on the Social Security
Administrative Record (Doc. 12) filed April 18, 2018, in
support of Plaintiff Terence A. Kiro's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying his claim for Title II disability insurance benefits.
On June 20, 2018, Plaintiff filed his Motion to Reverse and
Remand for Rehearing With Supporting Memorandum
(“Motion”). Doc. 16. The Commissioner filed a
Response in opposition on August 20, 2018 (Doc. 18), and
Plaintiff filed a Reply on September 4, 2018 (Doc. 19). The
Court has jurisdiction to review the Commissioner's final
decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the
applicable law and being fully advised in the premises, the
Court finds the Motion is not well taken and is
Background and Procedural Record
Terence A. Kiro (“Mr. Kiro”) alleges that he
became disabled on September 29, 2006,  at the age of
forty-five because of sciatica, right hip pain, degenerative
disc disease (lumbar), open reduction internal fixation
(ORIF) lumbar, and memory loss. Tr. 42, 211,
214.Mr. Kiro completed the twelfth grade in
1979 and has worked as a journeyman/painter for small
business contractors and painting companies. Tr. 215, 243-54.
September 29, 2014, Mr. Kiro filed an application for Social
Security Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (the
“Act”), 42 U.S.C. § 401 et seq. Tr.
189-90. Mr. Kiro's application was initially denied on
May 12, 2015. Tr. 73-80, 81, 91-94. It was denied again at
reconsideration on September 15, 2015. Tr. 82-89, 90, 100-04.
Mr. Kiro requested a hearing before an Administrative Law
Judge (“ALJ”), and ALJ Raul C. Pardo conducted a
hearing on July 11, 2017. Tr. 39-71. Mr. Kiro appeared in
person at the hearing with attorney representative William S.
Rode. Id. The ALJ took testimony from Mr. Kiro and
an impartial vocational expert (“VE”), Cornelius
Ford. Id. On August 14, 2017, ALJ Pardo issued an
unfavorable decision. Tr. 19-33.
December 3, 2017, the Appeals Council issued its decision
denying Mr. Kiro's request for review and upholding the
ALJ's final decision. Tr. 1-4. On January 29, 2018, Mr.
Kiro timely filed a Complaint seeking judicial review of the
Commissioner's final decision. Doc. 1.
Disability Determination Process
individual is considered disabled if 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) (pertaining
to disability insurance benefits); see also 42
U.S.C. § 1382(a)(3)(A) (pertaining to supplemental
security income disability benefits for adult individuals).
The Social Security Commissioner has adopted the familiar
five-step sequential analysis to determine whether a person
satisfies the statutory criteria as follows:
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful
activity.” If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his
(2) At step two, the ALJ must determine the severity of the
claimed physical or mental impairment(s). If the claimant
does not have an impairment(s) or combination of impairments
that is severe and meets the duration requirement, he is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listing described in Appendix
1 of the regulations, the ALJ must determine at step four
whether the claimant can perform his “past relevant
work.” Answering this question involves three phases.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). First, the ALJ considers all of the relevant medical
and other evidence and determines what is “the most
[claimant] can still do despite [his physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). This is called the claimant's residual
functional capacity (“RFC”). Id.
§§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ
determines the physical and mental demands of claimant's
past work. Third, the ALJ determines whether, given
claimant's RFC, the claimant is capable of meeting those
demands. A claimant who is capable of returning to past
relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past
relevant work, the Commissioner, at step five, must show that
the claimant is able to perform other work in the national
economy, considering the claimant's RFC, age, education,
and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however,
the Commissioner is able to make the required showing, the
claimant is deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th
Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005). The claimant has the initial
burden of establishing a disability in the first four steps
of this analysis. Bowen v. Yuckert, 482 U.S. 137,
146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show
that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is
disabled or not disabled at any point in the five-step review
is conclusive and terminates the analysis. Casias v.
Sec'y of Health & Human Serv., 933 F.2d
799, 801 (10th Cir. 1991).
Standard of Review
Court must affirm the Commissioner's denial of social
security benefits unless (1) the decision is not supported by
“substantial evidence” or (2) the ALJ did not
apply the proper legal standards in reaching the decision. 42
U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004); Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004); Casias, 933 F.2d at 800-01. In making these
determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the
agency.'” Bowman v. Astrue, 511 F.3d 1270,
1272 (10th Cir. 2008). A decision is based on substantial
evidence where it is supported by “relevant evidence .
. . 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[, ]”
Langley, 373 F.3d at 1118, or “constitutes
mere conclusion.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). The agency
decision must “provide this court with a sufficient
basis to determine that appropriate legal principles have
been followed.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005). Therefore, although
an ALJ is not required to discuss every piece of evidence,
“the record must demonstrate that the ALJ considered
all of the evidence, ” and “the [ALJ's]
reasons for finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
determined that Mr. Kiro was not disabled from his alleged
onset date through his date last insured. Tr. 19-33. In
making this determination, the ALJ found at step one that Mr.
Kiro met the insured status requirements through September
30, 2006, and that he had not engaged in substantial gainful
activity since his alleged onset date. Tr. 24. At step two,
the ALJ found that through the date last insured, Mr. Kiro
had severe impairments of degenerative disc disease,
status-post lumbar fusion, shoulder pain, and bilateral knee
pain. Id. The ALJ, however, determined
that Mr. Kiro's impairments did not meet or equal in
severity one of the listings described in Appendix 1 of the
regulations. Tr. 25. As a result, the ALJ proceeded to step
four and found that after careful consideration of the entire
record, Mr. Kiro had the residual functional capacity through
the date last insured to perform light work as defined in 20
CFR 404.1567(b). Tr. 25. The ALJ stated that Mr. Kiro
could lift/carry twenty pounds occasionally and ten pounds
frequently; sit six of eight hours; stand six of eight hours;
and walk six of eight hours. He could push and pull twenty
pounds occasionally and ten pounds frequently. The claimant
could frequently reach to the left and right; and frequently
handle items with the left hand and right hand. He could
frequently climb ramps and stairs, balance and stoop. The
claimant could occasionally climb ladders, ropes, or
scaffolds, and kneel. The claimant's time off task could
be accommodated by normal breaks.
Tr. 28. The ALJ concluded at step four that Mr. Kiro was not
able to perform any past relevant work. Tr. 30. At step five,
the ALJ determined that based on Mr. Kiro's age,
education, work experience, RFC, and the testimony of the VE,
there were jobs that existed in significant numbers in the
national economy that Mr. Kiro could have performed through
his date last insured and was, therefore, not disabled. Tr.
Kiro asserts two arguments in support of his Motion as
follows: (1) the Appeals Council failed to properly consider
the opinion of Dr. John Vigil, M.D.; and (2) ALJ Pardo failed
to apply the correct legal standards when evaluating the
opinion of treating physician Dr. Phillip Sandoval. Doc. 16
at 9-20. For the reasons discussed below, the Court finds no
Consideration of Additional Evidence
September 18, 2017, John R. Vigil, M.D., CIME, performed an
independent medical and functional evaluation of Mr. Kiro
based on a referral from Attorney Scott Rode. Tr. 10-15. Mr.
Kiro reported that his primary disabling complaint was
chronic back pain. Tr. 10. Dr. Vigil indicated he reviewed
Mr. Kiro's medical records and took Mr. Kiro's relevant
histories; i.e., history of present illness,
past medical history, past surgical history, family medical
history, and social/occupational history. Tr. 10-12. On
physical exam, Dr. Vigil noted, inter alia, that Mr.
Kiro appeared to be in obvious discomfort, had a slow and
antalgic gait, was unable to stay up on his toes or heels,
was unable to squat or hop, was able to get up on the exam
table on his own slowly and with some difficulty, was able to
move from the supine to the prone position on the examination
table with moderate pain and some difficulty, had a positive
straight leg lift on the right in both the supine and sitting
positions, had moderate lumbar tenderness on palpation, had
decreased range of motion of the lumbar spine, had some
bilateral paraspinous muscle tenderness and spasm, and that
any movement was associated with increased pain as evidenced
by wincing. Tr. 14. Dr. Vigil assessed (1) chronic low back
pain with radiculitis; (2) status post lumbar fusion, failed
back syndrome; (3) degenerative disc disease of the lumbar
spine with spondylosis and facet arthropathy; and (4) status
post traumatic brain injury. Id. Dr. Vigil concluded
. . . it is my opinion that within a reasonable medical
probability that this patient has severe functional
limitations and is severely limited in both vocational and
avocational activities secondary to his chronic pain
It is my opinion that Mr. Kiro's disabilities, including
his chronic pain preclude him performing even sedentary work
on a full-time and sustained basis from at least 2007 more
likely from 2004 when he had his lumbar fusion. . . .
Vigil also completed a Medical Assessment of Ability To
Do Work-Related Activities (Physical) and a Medical
Assessment of Ability To Do Work-Related Activities
(Non-Physical) on Mr. Kiro's behalf. Tr. 16-18. The
instructions directed Dr. Vigil to consider Mr. Kiro's
“medical history and the chronicity of findings as from
2006 to current examination.” Tr. 11-12. In doing so,
Dr. Vigil assessed that Mr. Kiro could never lift/carry up to
10 pounds; could sit, stand or walk for less than 30 minutes;
could frequently reach, handle and finger; could occasionally
use his feet; and could never climb, balance, stoop, kneel or
crouch. Tr. 16-17. Dr. Vigil further assessed that Mr. Kiro
suffered from a severe pain producing impairment, injury or
sickness that caused sleep disturbances and fatigue, and
required Mr. Kiro to rest or lie down at regular intervals.
Tr. 18. Finally, Dr. Vigil assessed that Mr. Kora had
moderate limitations in his ability to (1) maintain
attention and concentration for extended periods
(i.e., 2-hour segments); and (2) maintain regular
attendance and be punctual within customary tolerance; and
had marked limitations in his ability to (1) perform
activities within a schedule; (2) maintain physical effort
for long periods without a need to decrease activity or pace,
or to rest intermittently; and (3) complete a normal workday
and workweek without interruptions from pain or fatigue based
symptoms and to perform at a consistent pace without
unreasonable number and length of rest periods. Id.
Dr. Vigil explained that Mr. Kiro had severe chronic back
pain due to degenerative disc disease, spondylosis, and
failed back syndrome. Id.
Kiro argues that the Appeals Council improperly determined
that the additional submitted evidence would not show a
reasonable probability that it would change the outcome of
the decision. Doc. 16 at 9-14. Mr. Kiro further argues that
the additional evidence is new, material, and chronologically
pertinent and, therefore, should have been considered.
Id. The Commissioner contends that the Appeals
Council's denial of claimant's request for review is
not judicially reviewable because the Appeals Council
considered the evidence and determined that it did not
provide a basis for changing the ALJ's decision. Doc. 18
at 13. The Commissioner further contends that, ...