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Nino v. Saul

United States District Court, D. New Mexico

December 18, 2019

JOSE DANIEL NINO, Plaintiff,
v.
ANDREW SAUL, [1] Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REVERSE OR REMAND

          STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand to Agency for Rehearing, with Supporting Memorandum [Doc. 17], filed on June 5, 2019. The Commissioner responded on July 31, 2019. [Doc. 20]. Plaintiff replied on August 28, 2019. [Doc. 21]. The parties have consented to my entering final judgment in this case. [Doc. 7]. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that Plaintiff fails to show reversible error in the Administrative Law Judge's evaluation of certain source opinions. The Motion will be denied, and the Commissioner's final decision, affirmed.

         Standard of Review

         The 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).

         “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) (quoting 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) (internal quotation marks omitted).

         The Record

         A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which generally is the ALJ's decision, 20 C.F.R. § 404.981 (1980). In some situations, however, the Tenth Circuit has held that a court must consider evidence beyond that which was before the ALJ. See Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2006); O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Pursuant to 20 C.F.R. § 404.970(b), any new and material evidence that relates to the period on or before the date of the ALJ's decision shall be considered by the Appeals Council in determining whether to review the ALJ's decision. If the Appeals Council denies review, the ALJ's decision becomes the Commissioner's final decision. O'Dell, 44 F.3d at 858 (citing 20 C.F.R. § 404.981). A court reviews the Commissioner's decision, which is the ALJ's decision and not the Appeals Council's denial of review. See Id. Because a court reviews the final decision based on “the record as a whole, ” it will consider the evidence that was before the ALJ as well as the new and material evidence that was before the Appeals Council. Id. (citing Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). Considering all the evidence in the administrative record, a court decides whether the ALJ's findings are supported by substantial evidence and whether the correct legal standards were applied. Maes, 522 F.3d at 1096.

         Here, the Court reviews the ALJ's decision considering the entire record, which does not include the evidence submitted to, but rejected by, the Appeals Council and not exhibited in the record. Tr. 2, 34-152. Plaintiff references some of this evidence: two progress notes from Dr. Lang dated May 21, 2015, Tr. 88, and July 2, 2015, Tr. 87. However, Plaintiff raises no clear challenge to the disposition of these progress notes from Dr. Lang or any of the other evidence.[2] See [Docs. 17, 21]. If the Appeals Council had considered any of the evidence, this Court would also include the evidence in its review of the entire record. However, because the Appeals Council did not consider it-a determination not challenged by Plaintiff-this Court does not consider it either.

         Applicable Law and Sequential Evaluation Process

         In order to qualify for disability benefits, a claimant must establish that he 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); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner utilizes a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) he is not engaged in “substantial gainful activity”; and (2) he 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) his impairment(s) either meet or equal one of the Listings of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i)-(iv); Grogan, 399 F.3d at 1261. If he cannot show that his impairment meets or equals a Listing, but he proves that he is unable to perform his “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 his 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 November 24, 2014. Tr. 18. He alleged a disability-onset date of January 7, 2008. Id. His claims were denied initially and on reconsideration. Id. ALJ Ann Farris held a hearing on May 2, 2017, in Albuquerque, New Mexico. Tr. 18, 153. Plaintiff appeared by videoconference from Santa Fe, New Mexico, with his attorney. Tr. 18, 153. The ALJ heard testimony from Plaintiff and an impartial vocational expert (“VE”), Nicole B. King, who testified via telephone. Tr. 18, 153-74.

         The ALJ issued her unfavorable decision on September 25, 2017. Tr. 29. She found that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2013. Tr. 20. At step one, she found that Plaintiff had not engaged in substantial gainful activity during the period between his alleged onset date and his date last insured. Id. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: “major depressive disorder, alcohol abuse, and anxiety.” Id.

         At step three, the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 21-22. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 22-27. The ALJ found through the date last insured, Plaintiff had the RFC to perform “a full range of work at all exertional levels but with the following nonexertional limitations: [Plaintiff was] limited to simple routine tasks, involving no interaction with the public, and only occasional superficial interaction with co-workers.” Tr. 22.

         At step four, the ALJ found that Plaintiff was unable to perform his past relevant work as a security guard. Tr. 27. Accordingly, the ALJ went on to consider Plaintiff's RFC, age, education, work experience, and the testimony of the VE at step five. Tr. 27-28. She found that Plaintiff could perform work that exists in significant numbers in the national economy and, therefore, was not disabled. Tr. 28. The Appeals Council ...


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