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Roper v. Saul

United States District Court, D. New Mexico

September 13, 2019

RICHARD G. ROPER, Plaintiff,
ANDREW SAUL, Commissioner of Social Security,[1] Defendant.


         THIS MATTER is before the Court upon Plaintiff Richard G. Roper's (“Plaintiff's”) “Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum” [ECF 19] (“Motion”). The Motion is fully briefed. See ECFs 24 (Commissioner's Response), 25 (Reply). Having meticulously reviewed the entire record and the parties' briefing, the Court concludes that the Administrative Law Judge's (“ALJ's”) ruling should be AFFIRMED. Therefore, and for the reasons articulated below, the Court will DENY the Motion.


         Plaintiff was born in 1979. Administrative Record (“AR”) 62. He graduated from high school in 1997 after taking special education classes. AR 113. He then enlisted in the U.S. Army but received a “general discharge” shortly after completing basic training. AR 394, 584.[2] Since then, he has worked as a laborer, a grocery store clerk, a dishwasher, and most recently as a deckhand for a water drilling company. AR 113.[3] In July 2011, he applied for social security disability benefits, claiming that he suffered from a disability that began in February 2009 when he was twenty-nine years old. AR 62, 364. He alleged that his disability resulted from three physical conditions (left eye blindness, right ear hearing loss, and headaches) and four psychological conditions (depressive disorder, social phobia, anxiety, and bipolar disorder). AR 112.

         In November 2011, the Social Security Administration (SSA) denied Plaintiff's claim, concluding that “[his] condition was not severe enough to be considered disabling” and that “[he] could have done some types of work.” AR 30, 372. In October 2013, upon Plaintiff's request for reconsideration, the SSA again denied his claims and again concluded that “[his] condition [was] not severe enough to keep [him] from working.” AR 35, 378. Plaintiff then requested a hearing, which was held in September 2014 before ALJ Ann Farris. AR 38, 382, 388. In January 2015, the ALJ concluded that Plaintiff had not been under a disability. AR 14, 25. In September 2015, the Appeals Council denied Plaintiff's request to review the ALJ's decision and affirmed that decision as the Commissioner's final decision. AR 5.

         In November 2015, Plaintiff timely filed in this District a petition for relief. See Roper v. Berryhill, Civ. No. 15-1045, 2017 U.S. Dist. LEXIS 35955, at *4 (D.N.M. Mar. 14, 2017). In March 2017, U.S. Magistrate Judge Kirtan Khalsa concluded that the ALJ (1) “failed to apply the correct legal standards in evaluating the opinions of [a treating physician and an examining consultant]” and (2) “improperly adopted certain findings of [the nonexamining psychological consultants] . . . while rejecting others without explanation.” Id. at *36. Consequently, Judge Khalsa remanded the case to the SSA, and in January 2018, Plaintiff attended another hearing before the same ALJ. AR 566. In February 2018, the ALJ issued another unfavorable decision, and in June 2018, Plaintiff again timely petitioned this Court for relief. Compl., ECF 1.[4]


         Plaintiff now asserts that the ALJ erred in finding that he nevertheless had the “residual functional capacity” (“RFC”) to perform a “a limited range of [light] work.” Mot. 1; AR 438. Specifically, he argues that the ALJ erred in (1) weighing the opinions of state agency consultants and (2) relying on Plaintiff's “long history of being non-medically compliant.” Mot. 6-24.

         Plaintiff also contends that the ALJ's conclusion that he could “successful[ly] adjust[] to other work . . . in the national economy” was erroneous because it was (1) based on an erroneous RFC and (2) contained a “likely inconsistency” between the vocational expert testimony and the Dictionary of Occupational Titles (“DOT”) that “the ALJ failed to explore.” Mot. 24-25; Reply 8; AR 447.


         A. Standard of Review

         The Court's review of an ALJ's decision[5] 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))).

         In 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 . . . [he 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)).

         The Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g) (emphasis added). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (brackets in original) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “And . . . the threshold for such evidentiary sufficiency is not high. Substantial evidence, [the Supreme] Court has said, is more than a mere scintilla.” Id. (internal quotation marks and citation omitted). “It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

         Under this standard, a court should still meticulously review the entire record, but it may not “reweigh the evidence nor substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (quoting Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)); Hamlin, 365 F.3d at 1214. Indeed, 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)). Furthermore, 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) (brackets omitted).

         Ultimately, 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 v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin, 365 F.3d at 1214.

         B. 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) (emphasis added).

         The SSA 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[6] or (4) that “the impairment or combination of impairments prevents him from performing his past work.” Williams, 844 F.2d at 750-51; Grogan, 399 F.3d at 1261.

         If the claimant has advanced through step four, the burden of proof then shifts to the Commissioner to show that the claimant nonetheless retains sufficient 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, n.5.

         C. Complying with a Court's Remand

          “[T]he administrative agency, on remand from a court, [is required] to conform its further proceedings in the case to the principles set forth in the judicial decision, unless there is a compelling reason to depart.” Grigsby v. Barnhart, 294 F.3d 1215, 1218 (10th Cir. 2002) (quoting Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998)) (citing Brachtel v. Apfel, 132 F.3d 417, 419-20 (8th Cir. 1997)).


         In her February 2018 written decision, the ALJ affirmed that she carefully considered “all the evidence” and “the entire record.” AR 433, 438, 440.

         A. Steps One through Three

         At step one, the ALJ found that Plaintiff had not engaged in “substantial gainful activity” since February 23, 2009, the alleged onset date of his disability. AR 434-35.[7] At step two, the ALJ found that Plaintiff had the following “severe” impairments: left eye blindness, obesity, polysubstance abuse, bipolar disorder, and schizophrenia. AR 435. The ALJ also considered Plaintiff's other impairments[8] but found them to be non-severe. AR 435-36. At step three, the ALJ found that no impairment or combination thereof satisfied the criteria of a listed impairment. AR 436-38.

         B. Residual Functional Capacity

         Before 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.[9] Here, the ALJ found that Plaintiff had the physical RFC to perform light work. AR 438 (citations omitted).[10] She also found that he had the mental RFC to “follow short, simple instructions”-but limited him to having “no interaction with the general public” and “only occasional and superficial interaction with coworkers.” Id. As described below, the ALJ also discussed the evidence and reasoning that led to these RFC findings.

         1. Plaintiff's Allegations

         The ALJ began by reviewing Plaintiff's allegations that he “experienced daily withdraw[al], isolation, overwhelming anger, breaking things, difficulty sleeping, memory issues, racing thoughts and deep depression, ” along with “blind[ness] in his left eye, . . . social phobia, anxiety, bipolar disorder and headaches.” AR 439 (citations omitted). The ALJ also reviewed his assertion that “his ailments affected his ability to understand, see, remember, follow instructions, hear, concentrate, complete tasks and get along with other people.” Id. (citation omitted). As discussed below, however, the ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” AR 440.

         2. ALJ's Assessment

         a. Medical Evidence

         After assessing Plaintiff's physical impairments, [11] the ALJ reviewed the medical evidence regarding Plaintiff's mental impairments. AR 438-446. The ALJ observed that Plaintiff obtained counseling in early 2009 for methamphetamine and marijuana use, [12] while also reporting anxiety and depression. AR 441. The ALJ explicitly noted, however, that Plaintiff “reported no previous mental health [or] substance abuse treatment” and “reported he had no significant health problems.” Id. (citing AR 315-323).[13]

         The ALJ then reviewed the treatment records of Karla Vitale, D.O., who began seeing Plaintiff in November 2010 due to “concerns about his mental health.” Id. (quoting AR 144). Dr. Vitale diagnosed Plaintiff with “unspecified bipolar disorder” and “depression with anxiety” and prescribed him medications. AR 145, 442. The ALJ explicitly noted, however, that the record contained no “opinion from Dr. Vitale regarding [Plaintiff's] functional limitations, ” which prevented the ALJ from “assign[ing] weight to it.” AR 442.[14] The ALJ nevertheless noted that Dr. Vitale described Plaintiff as “noncompliant and difficult to treat, ” “not interested in discontinuing his marijuana use, ” not seeking care for three months (even though he was advised to return in six weeks), and no longer in counseling. Id. (citing AR 132-39 (also noting Plaintiff's continued use of methamphetamines and the multiple times the “cessation of illicit drugs” was encouraged)).

         The ALJ also noted that in 2013 Plaintiff mentioned to an agency consultative examiner that he had been off all psychotropic medication for the past year and that “he thought ‘he [was] doing okay. He [did] not feel suicidal or feel like he need[ed] counseling.'” AR 440 (quoting AR 357).

         b. Opinions of Dr. LaCourt

         In her previous decision from January 2015, the ALJ reviewed two opinions of State agency examining psychological consultant David LaCourt, Ph.D., one from November 2011 and the other from May 2013, and gave them “little weight” for the following reasons:

I have afforded little weight to the [two] opinions of Dr. LaCourt, as he seems to have relied heavily on [Plaintiff's] subjective reports, which even he indicated were not entirely accurate. Further, Dr. LaCourt did not adequately explore [Plaintiff's] current use of substance abuse and the effects his substance abuse has on his mental functioning.

Roper, 2017 U.S. Dist. LEXIS 35955, at *22-25. Judge Khalsa, however, held that the ALJ did not apply the correct legal standards in evaluating these two opinions when she (1) prematurely relied on the lack of an established connection between his drug use and his mental functioning, (2) “failed to demonstrate that she considered any of the [six] regulatory factors, ” and (3) relied excessively on Plaintiff's subjective complaints. Id. at *26-30 (citations omitted).

         In her February 2018 decision, which is under review in the instant case, the ALJ again reviewed these two opinions from Dr. LaCourt. AR 442-43. First, the ALJ observed that Dr. LaCourt opined in 2011 that Plaintiff-who during his mental status examination “denied recent involvement with illicit substances”-had “bipolar I disorder”[15] and that this diagnosis was associated with four “marked limitations”[16] and two “moderate limitations.”[17] The ALJ then explained why she gave “some weight” to this 2011 opinion:

Some weight is given to this opinion as Dr. LaCourt is an acceptable medical source under the regulations. More weight is not given to his opinion, however, as he based it on the subjective information[-]including the report that he did not use drugs[-]that [Plaintiff] reported during a single appointment, while he reached different conclusions regarding the claimant's mental diagnoses in his two opinions. Furthermore, his opinion that [Plaintiff] had marked limitations in ability to carry out instructions, to work without supervision and to interact with supervisors and coworkers is inconsistent with [Plaintiff's] testimony regarding how he obtained methamphetamines during this period.

AR 442.[18]

         The ALJ then reviewed Dr. LaCourt's May 2013 opinion that Plaintiff-who during his second examination with Dr. LaCourt reported that he was now living with a wife, taking no medication, and had not “us[ed] methamphetamines in several years”-had schizophrenia and that this diagnosis was associated with two “marked limitations, ”[19] two “moderate-to-marked limitations, ”[20] and three “moderate limitations.”[21] The ALJ then also explained why she gave “some weight” to this 2013 opinion:

Some weight is given to Dr. LaCourt's 2013 opinion as he is an acceptable medical source under the regulations. More weight is not given to his opinion as he came to different conclusions in his 2011 and 2013 opinions regarding [Plaintiff's] diagnoses and his limitations related to the same, while the limitations he placed on [Plaintiff] are undermined by [Plaintiff's] report that he was married, an event that must have occurred between the two examinations as the claimant reported in mid-2011 that he was single. Furthermore, Dr. ...

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