United States District Court, D. New Mexico
RICHARD G. ROPER, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
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.
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,
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. 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.
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.
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
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.
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.
Standard of Review
Court's review of an ALJ's 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.
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
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).
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).
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
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. § 423(d)(1)(A) (emphasis
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 past work.” 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
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.
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
ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
February 2018 written decision, the ALJ affirmed that she
carefully considered “all the evidence” and
“the entire record.” AR 433, 438, 440.
Steps One through Three
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. 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 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.
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. Here, the ALJ found that
Plaintiff had the physical RFC to perform light work. AR 438
(citations omitted). 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.
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
assessing Plaintiff's physical impairments,
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,  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).
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. 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)).
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
Opinions of Dr. LaCourt
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
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).
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” and that this diagnosis was associated
with four “marked limitations” and two
“moderate limitations.” 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
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,
” two “moderate-to-marked
limitations, ” and three “moderate
limitations.” 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. ...