United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court upon Plaintiff Enriquez
Martinez's ("Plaintiff's") "Motion to
Reverse and/or Remand" ("Motion"). ECF 24. The
Motion is fully briefed. See ECFs 30
(Commissioner's Response), 31 (Plaintiffs Reply). On
August 14, 2018, U.S. District Judge Martha Vazquez referred
the above-captioned cause to this Court for recommended
findings and disposition. ECF 18. Having meticulously
reviewed the entire record and the parties' briefing, the
Court recommends that the Motion be DENIED
and the Administrative Law Judge's
("ALJ's") ruling be AFFIRMED.
was born in 1974. Administrative Record ("AR") 141.
He completed schooling through the eighth grade and in 1992
earned his General Education Development ("GED")
diploma. AR 31, 171. He testified in January 2017 that he
lived with his then 61-year-old mother and his two daughters,
then ages ten and six, who were jointly adopted by Plaintiff
and his mother. AR 31, 42.Plaintiff worked as a warehouse manager
from 1994 until September 2013, performing both "heavy,
semi-skilled work" and "light, skilled work"
in this position. AR 20, 45, 162, 171. During a time of
cutbacks, Plaintiffs employer decided that two supervisors
were unnecessary, and Plaintiff was consequently laid off
from this job in September 2013. AR 33-34, 40. Approximately one
year later, Plaintiff applied for "a Period of
Disability and Disability Insurance Benefits" with the
Social Security Administration ("SSA"), claiming
that his inability to work began on September 5, 2013, the
day he stopped working. AR 102, 141, 159, 170.Plaintiff claimed
that he was disabled due to three conditions: diabetes, high
blood pressure, and arthritis. AR 51, 141, 170.
April 2015, the SSA denied Plaintiffs initial claim, finding
that Plaintiffs alleged impairments from these conditions
were "non-severe," "inconsistent and
disproportionate" with the evidence, and "[did] not
result in significant limitations" in his ability to
work. AR 54-56. In July 2015, upon Plaintiffs request for
reconsideration, the SSA again denied Plaintiffs claim AR 64.
It found, however, that Plaintiffs obesity qualified as a
"severe" impairment and concluded that Plaintiff
had "some limitations" in his ability to
work-although nothing severe enough to keep him from working,
including at his previous job. AR 65.
then requested a hearing, which was held before ALT James
Bentley in January 2017. AR27, 82. Assisted by counsel,
Plaintiff testified at the hearing, as did Melissa
Brassfield, a vocational expert. AR 30, 44. In February 2017,
"after careful consideration of all of the
evidence," the ALJ concluded that Plaintiff had not been
under a disability within the meaning of the Social Security
Act. AR 14, 22.
then sought relief with the SSA's Appeals Council. AR
136. In January 2018, the Appeals Council found, among other
things, no abuse of discretion by the ALJ, no error of law,
and no lack of substantial evidence. AR 1. It therefore
denied Plaintiffs request to review the ALJ's decision
and affirmed that decision as the Commissioner's final
decision. Id. Plaintiff timely petitioned this Court
for relief in February 2018, alleging that he was
"severely and irreparably disabled by multiple
impairments" and that the Commissioner's final
decision was erroneous. PL's Compl. 2-3, ECF 1.
first claims that the ALJ erred by not performing a complete
"function-by-function assessment" of Plaintiffs
physical limitations pursuant to Social Security Ruling
96-8p. PL's Mot. 14-15. Second, Plaintiff asserts that
the ALJ erred by assigning "diminished weight" to
the opinion of Plaintiffs treating physician. Id. at
15. Third, Plaintiff contends that the ALJ erred by not
"properly considering]" Plaintiffs testimony about
his symptoms. Id. at 16. Finally, Plaintiff alleges
that the ALJ erred by not "properly assess[ing]"
his obesity. Id.
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 legal and factual. See Maes v.
Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) ("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." (citing
Hamilton v. Sec 'y of Health & Human Servs.,
961 F.2d 1495, 1497-98 (10th Cir. 1992))).
determining whether the correct legal standards were applied,
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 v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005)). The Court may reverse and remand if the ALJ failed to
"apply correct legal standards" or "show ...
Pie or she] has done so." Hamlin v. Barnhart,
365 F.3d 1208, 1214 (10th Cir. 2004) (citing Winfrey v.
Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)).
Commissioner's findings "as to any fact, if
supported by substantial evidence, shall be
conclusive." 42 U.S.C. § 405(g) (emphasis added).
Substantial evidence does not require a preponderance of
evidence, but rather "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Lax, 489 F.3d at 1084 (quoting
Hackett, 395 F.3d at 1172). An ALJ's decision,
however, "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
v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004)
(quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th
should meticulously review the entire record but should
neither "reweigh the evidence nor substitute [its]
judgment for that of the agency." Langley, 373
F.3d at 1118 (quoting Casias v. Sec'y of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991));
Hamlin, 365 F.3d at 1214. A court is to "review
only the sufficiency of the evidence, not its
weight." Oldham v. Astrue, 509 F.3d 1254, 1257
(10th Cir. 2007) (emphasis in original). Therefore,
"[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent an
administrative agency's findings from being supported by
substantial evidence." Lax, 489 F.3d at 1084 (quoting
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.
2004)). Consequently, a court "may 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."
Id. (quoting Zoltanski, 372 F.3d at 1200)
if the correct legal standards were applied and substantial
evidence supports the ALJ's findings, the
Commissioner's decision stands and Plaintiff is not
entitled to relief. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214.
Sequential Evaluation Process
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.
has devised a five-step sequential evaluation process to
determine disability. See 20 C.F.R. §
404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20,
24-25 (2003). The claimant bears the burden of proof at steps
one through four. See Bowen v. Yuckert, 482 U.S.
137, 146 & n.5 (1987); Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005); Williams v. Bowen,
844 F.2d 748, 750-51, 751 n.2 (10th Cir. 1988). In the first
four steps, the claimant must show (1) that "he is not
presently engaged in substantial gainful activity," (2)
that "he has a medically severe impairment or
combination of impairments," and either (3) that the
impairment is equivalent to a listed impairment or (4) that
"the impairment or combination of impairments prevents
him from performing his pastwork." Williams,
844 F.2d at 750-51; Grogan, 399 F.3d at 1261.
claimant has advanced through step four, the burden of proof
then shifts to the Commissioner to show that the claimant
retains sufficient "residual functional capacity"
("RFC") "to perform other work in the national
economy in view of his age, education, and work
experience." Yuckert, 482 U.S. at 142, 146,
ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
February 2017 written decision, the ALJ affirmed that he
"carefully reviewed the facts of [Plaintiff s]
case," "all the evidence," and "the
entire record" before him AR 11, 14, 16. In his
"Findings of Fact and Conclusions of Law," the ALJ
discussed the evidence and opinions that led to his decision.
Steps One through Three
one, the ALJ found that Plaintiff had not engaged in
"substantial gainful activity" since September 5,
2013, the alleged onset date of his disability. AR
At step two, the ALJ found that Plaintiff had three severe
impairments: type 2 diabetes, hypertension, and obesity.
Id. In analyzing Plaintiffs gastroparesis, the ALJ
found that the evidence showed no "consistent
symptoms," such as weight loss, that corresponded to
this condition. Id. Although Plaintiff testified, in
response to the ALJ's questioning, that he had to lie
down after eating "until [the food] goes down" so
that he would not get sick, the ALJ nonetheless found that
Plaintiffs gastroparesis was not severe because it caused no
more than "a minimal limitation" of Plaintiff s
ability "to do basic work activities." AR 16
(citing 20 C.F.R. § 404.1520(c)); AR 35. Likewise, the
ALJ found that Plaintiffs alleged "joint and back
pain" were not severe because the record contained no
"diagnosis relating to joint pain or back pain, except
as may be attributed to diabetes." AR
three, the ALJ found that no impairment or combination
thereof satisfied the criteria of a listed impairment. AR 17.
He observed that neither diabetes, hypertension, nor obesity
were classified under a specific listing. Id.
Instead, following the established guidelines, he evaluated
diabetes and hypertension through their effects on
other "body systems" and found that they
caused no "listing level severity" on Plaintiffs
other body systems. Id. Similarly, in finding no
listed impairment, the ALJ also affirmed that he made no
"assumptions about the severity or functional effects of
obesity"-but rather evaluated Plaintiffs obesity,
particularly its effects on "other impairments," in
the context of the overall "information in the case
record." Id. (citing Social Security Ruling
(SSR) 02-0 lp). He further stated that his evaluation of
obesity under SSR 02-0lp included the application of
internally-referenced guidelines, id. (citing 20
C.F.R, Subpt. P. App. 1, §§ l.OO(Q), 3.00(1),
4.00(F)), which assisted his evaluation of the "combined
effects of obesity with musculoskeletal impairments" and
the "cumulative effects of obesity" on the
cardiovascular system §§ l.OO(Q), 4.00(F).
Residual Functional Capacity
performing the step four analysis, in which the ALJ considers
whether a claimant can perform past work, the ALJ must first
determine the claimant's RFC. 20 C.F.R. §
404.1520(a)(4) ("Before we go from step three to step
four, we assess your residual functional
capacity."). Here, the ALJ found that Plaintiff could
perform "light work," as defined in the
regulations, with some additional limitations. AR 17-18.
Specifically, the ALJ found that Plaintiffs RFC consisted of
[Plaintiff] has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except: he
requires a sit/stand option, defined as a brief positional
change from sitting to standing and vice versa with no more
than one change in position every half hour and without
leaving the work station so as not to diminish pace or
production; he would be limited to frequent but not constant
handling and fingering bilaterally; he would be unable to
operate foot controls; he would be unable to climb ladders,
ropes, or scaffolding; and he would need to avoid unprotected
heights and dangerous moving machinery.
17-18. In making these findings, the ALJ affirmed that he
considered "all symptoms and the extent to which these
symptoms [could] reasonably be accepted as consistent with
the objective medical evidence and other evidence" and
further affirmed that he considered the opinion evidence. AR
found that Plaintiffs "medically determinable
impairments" could reasonably have caused the alleged
symptoms. AR 19. He explained, however, that Plaintiffs
"statements concerning the intensity, persistence
and limiting effects of these symptoms [were] not
entirely consistent with the medical evidence and other
evidence in the record." Id. (emphasis added).
As described below, the ALJ discussed in his RFC assessment
the evidence supporting his findings. AR 17-20.
Plaintiff's Alleged Symptoms and Limitations
first began his analysis by reviewing Plaintiffs claims
regarding his own symptoms and limitations. AR 18. The ALJ
initially noted that Plaintiff recorded his height as
6'l" and his weight as 330 pounds as part of his
disability application. Id. The ALJ's review of
Plaintiffs alleged symptoms included Plaintiffs assertions of
(1) numbness in his hands, feet, and legs; (2) sensitive
hands and, when not lying down, swollen feet; (3) fatigue,
dizziness, and daily headaches; (4) pain, including in his
back, nerves, and "all his joints;" and (5)
"heart palpitations and shortness of breath."
ALJ's review of Plaintiff s alleged limitations included
Plaintiffs testimony that he (1) had to "He down half of
the day due to pain and dizziness," (2) "could not
grip things," (3) "had balance issues, particularly
after standing or walking," (4) "could stand about
half an hour," and (5) "could sit for an hour
before needing to change positions due to back pain and
numbness in his legs." AR 18, 33, 35, 38. He also noted
Plaintiffs initial written assertions that his impairments
affected his ability to "stand more than ten
minutes" and "sit more than half an hour."
reviewing Plaintiffs symptoms and limitations, the ALJ noted
that Plaintiff received unemployment benefits for
approximately six months after he was "fired" from
his last job. AR 18; see also supra, note 3
(Plaintiffs inability to recall holding himself out as
"ready, willing, and able to return to work" in
order to receive unemployment benefits).
Objective Medical Evidence
discussed eight of Plaintiffs visits with his primary care
physician, Michael Montoya, MD. AR 18, 274, 293. The ALJ
first noted that in August 2013-less than one month before
Plaintiffs alleged disability onset-Plaintiff reported to Dr.
Montoya that he was "feel[ing] better overall." AR
18, 298. The ALJ observed that the result of Dr.
Montoya's examination of Plaintiff on this date was
overall normal, noting that Plaintiff had "no numbness
or tingling," a normal gait, and no complications with
his diabetes or hypertension. AR 18-19 (citing AR 298- 99).
The ALJ then reviewed three of Plaintiff s visits with Dr.
Montoya in 2014,  two in 2015, and two visits in 2016,
all of which "generally showed little" or resulted
in "unremarkable" findings. AR 19.
then discussed four of Plaintiff s visits with a cardiologist
in 2016. AR 19. About Plaintiffs first visit, the ALJ noted
that Plaintiff "denied any symptoms, such as headaches,
shortness of breath, or chest pain" and that his
examination "was unremarkable." Id.
(citing AR 344-46). At subsequent visits, Plaintiff
participated in an exercise stress test and was given a new
prescription for hypertension. Id. (citing AR
342-43). In addition, the cardiologist observed that
"symptomatically, [Plaintiff] was doing well, with no
shortness of breath or chest pain, although he had heart
palpitations." Id. (citing AR 333-35). He again
classified the examination of Plaintiff as
"unremarkable" and found that Plaintiff had
"normal gait and intact sensation." Id.
(citing AR 333-35).
discussing these eight visits with Dr. Montoya and four
visits with a cardiologist- and after "careful
consideration of the entire record"-the ALJ
found that "[t]he record was devoid of any complaints or
findings of numbness in [Plaintiff s] extremities." AR
17, 19. In addition, he found that "[w]hile the record
did show diabetes mellitus and hypertension in various stages
of control, the record typically noted [Plaintiff] was
asymptomatic, and examinations generally
showed little." AR 19 (emphasis added) (citing
AR 298-301, 304-05, 315-16, 323-24, 327-28, 333-35, 339,
also reviewed the medical evidence of Plaintiffs obesity. AR
18-19. For example, he observed that Plaintiffs body mass
index ("BMI") was 43 in late 2013 when he applied
for disability benefits, given his reported height of
6'1" and weight of 360 pounds. AR 18 (citing AR
170). He also observed that Plaintiffs BMI was 43.9 in March
2014 and then approximately 46 in November 2016. AR 19
(citing AR 300, 352). The ALJ affirmed that he considered the
record evidence in evaluating obesity's possible effects
on other impairments, AR 17 (citing SSR 02-01p; 20 C.F.R,
Subpt. P. App. 1, §§ l.OO(Q), 3.00(1), 4.00(F)),
and that Plaintiffs obesity was indeed "supported by the
record." AR 19 (citing AR 333-35, 351-52). Even
considering this evidence of Plaintiffs obesity, the ALJ
nevertheless found that "[i]n all, however, [Plaintiffs]
alleged symptoms and limitations are not consistent with the
objective medical evidence." Id.