United States District Court, D. New Mexico
JUDITH R. JAMES, Plaintiff,
ANDREW SAUL, 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
C. HERRERA, SENIOR UNITED STATES DISTRICT JUDGE.
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].
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 in a Social Security appeal is whether the
Commissioner's final decision 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).
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.
‘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)).
Law and Sequential Evaluation Process
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),
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” of presumptively disabling
impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §§
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.
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.
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.
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
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].
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.Id. at 17-19.
of Review for Objections to Magistrate Judge's
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.
Plaintiff's objections to the ALJ's evaluation of her