Kohler v. Social Security Administration

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS 25 ; denying motion 19 by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

RUSTY D. KOHLER,
Plaintiff,
v.

No. CIV-16-0170 MCA/LAM

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Magistrate Judge Lourdes A. Martínez’ Proposed
Findings and Recommended Disposition (hereinafter “PF&RD”) (Doc. 25), filed on January 18,
2017, that recommended denying Plaintiff’s Opening Brief (Doc. 19) (hereinafter “motion”),
filed on August 2, 2016, 2016, which the Court construed as a motion to reverse and remand this
case to the Commissioner. On February 1, 2017, Plaintiff filed objections (Doc. 26) to the
PF&RD (Doc. 25) and, on February 7, 2017, Defendant filed a response (Doc. 27) to Plaintiff’s
objections. The Court has conducted a de novo review of those portions of the PF&RD to which
Plaintiff objects, and finds that the objections are without merit. Accordingly, the Court will:
(1)

OVERRULE Plaintiff’s objections;

(2)

ADOPT the Proposed Findings and Recommended Disposition (Doc. 25);

(3)

DENY Plaintiff’s construed motion (Doc. 19); and

(4)

DISMISS this case, with prejudice.

Plaintiff’s Objections
In Plaintiff’s first objection to the PF&RD, he asserts that, unless a claimant can perform
the “full range of work in a specific category,” he cannot be assigned jobs within that category.
[Doc. 26 at 1-3]. Thus, since Plaintiff’s ability to perform the full range of light work was
restricted by the ALJ, he contends that he must be limited to sedentary work. Id. However,
restrictions that preclude the “full range” of work in an exertional category are not only allowed,
but are standard practice. See, e.g., Soc. Sec. Rep. 83-12 (when an individual’s RFC “does not
coincide with the definition of any one of the ranges of work as defined in . . . the regulations,” the
ALJ “will consider the extent of any erosion of the occupational base” caused by the departure
from the defined work range). This is precisely why vocational experts are routinely consulted in
disability cases and are tasked with matching the ALJ’s restrictions to jobs within a specific
exertional category. Not every job that is designated as “light work” in the Dictionary of
Occupational Titles (“DOT”) will require performance of the full range of light work. See, e.g.,
POMS DI 25003.001(C)(2)(4) 1 (vocational expert should be consulted when an RFC falls
“between two levels of exertion”) (citing Soc. Sec. Rep. 83-14). Plaintiff’s assertion that each
exertional category is all-or-nothing is simply without support. Therefore, the Court finds that
Plaintiff’s assertions regarding this issue are without merit, and this objection will be overruled.
Plaintiff also contends that POMS DI 25025.015(B)2 dictates that, where a claimant is “not
disabled” under either of the exertional categories that his RFC falls between, the ALJ should rely
on the lower category and, therefore, that the ALJ “should have used the sedentary table rule as a
framework.” [Doc. 26 at 3]. First, this is not an argument that Plaintiff made to the Magistrate

1

Available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425003001 (site last visited February 17, 2017).

2

Available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425025015 (site last visited February 17, 2017).

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Judge, and objections are not intended to provide a means for presenting new arguments after the
Magistrate Judge recommends an unfavorable disposition. See Marshall v. Chater, 75 F.3d 1421,
1426-27 (10th Cir. 1996). In any event, the referenced POMS rule simply provides that, where an
RFC falls between exertional levels, and the medical-vocational grids applicable to each level both
conclude that the claimant is “not disabled,” the ALJ should cite the rule for the lower exertional
level, enter a ruling of “not disabled,” and not cite specific jobs that the claimant could perform,
because the rules themselves establish that a significant number of jobs exist that the claimant
could perform. This directive simply does not support Plaintiff’s claim that, when an RFC falls
between exertional levels, the ALJ is required to assess the claimant at the lower level. Even if it
did, the end result still would be a finding of “not disabled,” as indicated by the rule itself. This
objection is also without merit and will be overruled.
Plaintiff’s next objection asserts that the Magistrate Judge “misunderstood” his argument
to the effect that the ALJ erred by not discussing the opinions of Drs. Glass and Remondino that
Plaintiff was not capable of “light work.” [Doc. 26 at 4-7]. This argument relies on the same
faulty premise as do Plaintiff’s preceding arguments. Plaintiff continues to assert that “using the
accepted definitions for light and sedentary [work] and their requirements,” an opinion that
restricts a claimant to less than the full range of work in one category must be considered as
endorsement of the lowest category of work in which claimant could perform the full range of
work. Id. at 5-6. As already explained, Plaintiff’s interpretation of the law is not supported.
Therefore, this objection is without merit and will be overruled.
Plaintiff next restates the argument he made to the Magistrate Judge, to the effect that he
was denied due process by the ALJ’s failure to ensure that an article relied upon by the vocational

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expert became a part of the record. Id. at 7-8. This is not an objection so much as it is a second
effort by Plaintiff to convince this Court of the validity of an already rejected argument. In any
event, as the Magistrate Judge pointed out, not only did Plaintiff fail to take any steps to obtain the
document once he was unable to access it online, he also failed even to argue that his lack of access
to the document prejudiced him. Effectively, this claim is that Plaintiff was unable to access a
document online that the vocational expert relied on to determine the limiting effect of a sit-stand
restriction.

Such a claim is insufficient to even raise an issue of denial of due process.

Therefore, this objection is without merit and will be overruled.
In Plaintiff’s final objection he asserts that the Magistrate Judge’s statement that
“credibility determinations are peculiarly the province of the finder of fact” (Doc. 25 at 20) is an
“improper post-hoc argument[] made to support the decision” (Doc. 26 at 9). Again, Plaintiff
misunderstands the legal concepts he seeks to apply. Post-hoc arguments seek to supply a
rationale for the fact-finder’s decision that the fact-finder did not himself use. See, e.g., Haga v.
Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). In this case, the Magistrate Judge simply stated
the established law regarding appellate review of ALJ decisions.

See Kepler v. Chater,

68 F.3d 387, 391 (10th Cir. 1995). Such statements are not post-hoc rationale. Plaintiff follows
that assertion by rearguing his claim that the ALJ’s credibility assessment was “wrong.” [Doc. 26
at 10-14]. However, as the Magistrate Judge pointed out, “[t]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ]’s findings from being
supported by substantial evidence.” Lax, 489 F.3d at 1084. The Magistrate Judge properly
assessed the ALJ’s credibility determination regarding Plaintiff and found it to be supported by
substantial evidence. Therefore, this objection is also without merit and will be overruled.

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IT IS THEREFORE ORDERED, for the reasons stated above that:
(1)

Plaintiff’s objections to the PF&RD (Doc. 26) are OVERRULED;

(2)

The Proposed Findings and Recommended Disposition (Doc. 25) are ADOPTED

by the Court;
(3)

Plaintiff’s motion (Doc. 19) is DENIED, with prejudice; and

(4)

A final judgment will be entered concurrently with this Order.

IT IS SO ORDERED.

__________________________________________
THE HONORABLE M. CHRISTINA ARMIJO
UNITED STATES DISTRICT JUDGE

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