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James v. Saul

United States District Court, D. New Mexico

November 1, 2019

JUDITH R. JAMES, Plaintiff,
v.
ANDREW SAUL,[1] Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION AND DENYING PLAINTIFF'S MOTION TO REMAND

          JUDITH C. HERRERA, SENIOR UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition [Doc. 26] (“PF&RD”), issued on September 19, 2019. On reference by the undersigned, Stephan M. Vidmar, United States Magistrate Judge, reviewed Plaintiff's Brief in Support of Motion to Remand or Reverse [Doc. 20] (“Motion”), filed on April 25, 2019; Defendant's Response [Doc. 24], filed on July 22, 2019; Plaintiff's Reply [Doc. 24], filed on August 5, 2019; the entire record; and the relevant law. [Doc. 27] at 1. He found that Plaintiff had failed to meet her burden as the movant before this Court to show either that the Administrative Law Judge (“ALJ”) did not apply the correct legal standards or that his findings were not supported by substantial evidence. Id. Because Plaintiff's arguments fail to show either kind of error, Judge Vidmar recommended that the Motion be denied and that the final decision of the Commissioner, affirmed. [Doc. 27]. Plaintiff timely objected to the PF&RD on October 3, 2019. [Doc. 27]. Defendant responded in support of the PF&RD on October 17, 2019. [Doc. 28].

         Plaintiff's objections will be overruled. The Court finds that many objections were not raised in the original Motion and, thus, are waived. Several objections are based on inapposite standards of review and, accordingly, would not trigger remand even if they were borne out by the record. Others are conclusory or ask the Court to impermissibly reweigh the evidence. The Court has reviewed de novo those portions of the PF&RD to which Plaintiff properly objected, but the objections are not meritorious. The Court will overrule the Objections [Doc. 27], adopt the PF&RD [Doc. 26], deny Plaintiff's Motion [Doc. 20], and affirm the Commissioner's final decision.

         Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). Courts must meticulously review the entire record but may neither reweigh the evidence nor substitute their judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. The 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.” Id. While a court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the [Commissioner]'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] 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)).

         “The ‘failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.'” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quoting Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984)).

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant must establish that 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), 1382c(a)(3)(A) (2012); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920 (2012). At the first four steps of the evaluation process, the claimant must show: (1) she is not engaged in “substantial gainful activity”; and (2) she 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 (3) her impairment(s) either meet or equal one of the “Listings”[3] of presumptively disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i)-(iv), 416.920(a)(4)(i)-(iv); Grogan, 399 F.3d at 1261. If she cannot show that her impairment meets or equals a Listing, but she proves that she is unable to perform her “past relevant work, ” the burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering her residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

         Procedural Background

         Plaintiff applied for a period of disability and disability insurance benefits on April 1, 2014, and for supplemental security income on July 28, 2014. Tr. 35. She alleged a disability-onset date of December 18, 2013. Id. Her claims were denied initially and on reconsideration. Id. ALJ Randolph E. Schum held a hearing on June 22, 2016, in Phoenix, Arizona. Tr. 35, 171-89. Plaintiff appeared via videoconference from Flagstaff, Arizona, with her attorneys Nicole Franco and John Heard. Tr. 35. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Marcos R. Molinar. Tr. 35, 185-87.

         The ALJ issued his unfavorable decision on September 22, 2016. Tr. 46. He found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. Tr. 37. At step one, he found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Id. At step two, he found that Plaintiff suffered from the following severe impairments: “residual (swelling) from adrenal surgery, obesity, anxiety disorder, and posttraumatic stress disorder (‘PTSD').” Id. The ALJ also found that Plaintiff's diabetes mellitus, gastroesophageal reflux disease, constipation, “high blood pressure and/or heart condition, ” and urinary urgency were not severe. Tr. 38.

         At step three, the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 39-41. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 41-45. The ALJ found that Plaintiff had:

the [RFC] to perform light work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b) except that she can stand and/or walk for six hours in an eight-hour workday and sit for six hours in an eight-hour workday; she can lift and carry 20 pounds occasionally and ten pounds frequently; she can occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds; she can occasionally stoop, kneel, crouch, and crawl; she should avoid concentrated exposure to unprotected heights; and she should not work in a setting with constant or regular contact with the general public or more than infrequent handling of customer complaints.

Tr. 41.

         At step four, the ALJ found that Plaintiff was able to return to her past relevant work as a housekeeping cleaner (Dictionary of Occupational Titles (“DOT”) number 323.687-014), as it is generally performed. Tr. 45. Accordingly, the ALJ found that Plaintiff was not disabled, and he denied her claims. Tr. 46. The Appeals Council denied review on January 5, 2018. Tr. 5-8. After an extension of time, Tr. 1, Plaintiff timely filed the instant action on November 16, 2018, [Doc. 1].

         Magistrate Judge's PF&RD

         Judge Vidmar recommended that Plaintiff's Motion to Remand or Reverse [Doc. 20] be denied because Plaintiff had failed to show any reversible error in the ALJ's decision. [Doc. 26]. He found that Plaintiff had failed to show any reversible error in the ALJ's application of Social Security Ruling 16-3p in evaluating her reported symptoms. Id. at 6-13. He further found that she failed to show any reversible error in the classification of her past relevant work (“PRW”). Id. at 13-17. Finally, he found that she failed to show any reversible error in the ALJ's evaluation of Dr. O'Neill's treating opinion.[4]Id. at 17-19.

         Standard of Review for Objections to Magistrate Judge's PF&RD

         “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C) (2012). To preserve an issue, a party's objections to a PF&RD must be “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); see Wofford v. Colvin, 570 Fed.Appx. 744, 745-46 (10th Cir. 2014) (holding that “conclusory and non-specific” objections that “fail[] to identify the particular errors the magistrate judge committed” fail to preserve an issue for appellate review). Moreover, “theories raised for the first time in objections to the magistrate judge's report are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001).

         I. Plaintiff's objections to the ALJ's evaluation of her ...


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