Baca v. Social Security Administration

Filing 28

ORDER by Magistrate Judge William P. Lynch denying 21 Motion to Remand to Agency. (mej)

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

FRANCISCO ESTEVAN BACA,
Plaintiff,
v.

CV 16-246 WPL

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

MEMORANDUM OPINION AND ORDER
Francisco Baca began receiving supplemental security income (SSI) as minor, based on
an application filed in 2005. When he reached the age of eighteen, the Social Security
Administration (SSA) was required to redetermine his eligibility for continuing benefits. 20
C.F.R. § 416.967. During that redetermination, an Administrative Law Judge (ALJ) found that
Baca is not disabled under the adult standards and found him ineligible for SSI. (Administrative
Record (AR) 20). Baca filed for review by the Appeals Council. The Appeals Council denied
review on February 3, 2016, but added additional exhibits to the AR. (AR 1, 6.) Baca then filed
his motion to reverse and remand in this Court. (Doc. 21.) The Commissioner of the SSA filed a
response (Doc. 25) and Baca filed a reply (Doc. 26). For the reasons explained below, I deny
Baca’s motion to remand and dismiss this case with prejudice.
STANDARD OF REVIEW
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision is
the SSA’s final decision. In reviewing the ALJ’s decision, I must determine whether it is

supported by substantial evidence in the record and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted). A decision is not
based on substantial evidence if other evidence in the record overwhelms it or if there is a mere
scintilla of evidence supporting it. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004).
Substantial evidence does not, however, require a preponderance of the evidence. U.S. Cellular
Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir.
2003). I must meticulously examine the record, but I may neither reweigh the evidence nor
substitute my discretion for that of the Commissioner. Hamlin, 365 F.3d at 1214. The Court may
reverse and remand if the ALJ failed “to apply the correct legal standards, or to show us that she
has done so . . . .” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
SEQUENTIAL EVALUATION PROCESS
The SSA has devised a five-step sequential evaluation process to determine disability.
See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. § 416.920(a)(4) (2016). The same
process is used when redetermining an individual’s eligibility for continuing benefits when that
person turns eighteen. 42 U.S.C. § 1382c(a)(3)(H)(iii); see also, Wagner v. Comm’r of Soc. Sec.,
2010 WL 3036763, at *3 (N.D. Ohio July 15, 2010). If a finding of disability or nondisability is
directed at any point, the ALJ will not proceed through the remaining steps. Thomas, 540 U.S. at
24. At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. § 416.920(a)(4), & Pt. 404, Subpt. P, App’x 1. If a claimant’s impairments are not
equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three

2

phases of step four and determines the claimant’s residual functional capacity (“RFC”). See
Winfrey, 92 F.3d at 1023; 20 C.F.R. § 416.920(e). The ALJ then determines the physical and
mental demands of the claimant’s past relevant work in phase two of the fourth step and, in the
third phase, compares the claimant’s RFC with the functional requirements of his past relevant
work to see if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at
1023; 20 C.F.R. § 416.920(f). If a claimant is not prevented from performing his past work, then
he is not disabled. 20 C.F.R. § 416.920(f). The claimant bears the burden of proof on the
question of disability for the first four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler,
814 F.2d 1456, 1460 (10th Cir. 1987). If the claimant cannot return to his past work, then the
Commissioner bears the burden, at the fifth step, of showing that the claimant is capable of
performing other jobs existing in significant numbers in the national economy. See Thomas, 540
U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the
five-step sequential evaluation process in detail).
DISCUSSION
Baca, a twenty-three year old male with a high school education and no relevant work
experience, argues that the ALJ made several errors requiring remand of his case. The ALJ found
that Baca has the RFC to “perform light work . . . [and] make simple work related decisions, with
few workplace changes. However, he should not be required to work at a production rate pace, or
perform tandem tasks.” (AR 16.) She also found that Baca’s “statements concerning the
intensity, persistence and limiting effects of [his] symptoms are not entirely credible.” (AR 17.)
At step five, the ALJ relied on a vocational expert’s (VE) testimony to determine that Baca can

3

do other jobs existing in substantial numbers in the economy. (AR 20.) Therefore, the ALJ
determined that Baca is not disabled.
Baca’s records begin in 2002. I have reviewed the entire AR, but discuss only those facts
and records relevant to the disposition of this case.
Baca alleges that the ALJ erred in several regards at step four: 1) the ALJ stated she gave
an agency non-examining physician’s opinion “great weight,” but failed to include all of the
identified limitations in the RFC or explain why some limitations were left out; 2) the ALJ erred
by adopting the opinions of non-examining physicians and failing to consider them in light of
later developed evidence, in violation of Social Security Ruling (SSR) 96-6p, 1996 WL 374180
(July 2, 1996)1; 3) the ALJ improperly discounted the third party statement of Baca’s
grandmother, who has also been his guardian; 4) the ALJ erred in her credibility determination of
Baca by addressing generalities rather than specific facts and the ALJ cited records in the AR
that do not support the ALJ’s conclusions; and 5) the ALJ’s RFC determination that Baca’s only
limitation as to concentration is that he cannot work at a production rate pace is not supported by
substantial evidence and is impermissibly vague. Even if the ALJ did not err at step four, Baca
contends that the ALJ committed additional reversible errors at step five, specifically: 1) the ALJ
erred in relying on the VE testimony because the proposed RFC failed to include all of Baca’s
limitations; 2) the VE’s opinion was contrary to the “no production rate pace” limitation in
Baca’s RFC and the ALJ failed to explain or clarify this discrepancy; 3) the ALJ was required to,
but did not, clarify the inconsistencies between the VE’s testimony and the RFC; and 4) the ALJ
found that Baca could perform other jobs existing in the economy even though he requires
1

SSRs are binding on the SSA, and while they do not have the force of law, courts traditionally
defer to SSRs since they constitute the agency’s interpretation of its own regulations and foundational
statutes. See Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990); 20 C.F.R. § 402.35; see also Andrade v.
Sec’y of Health & Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993) (SSRs entitled to deference).

4

special supervision and the VE testified that requiring special supervision eliminates competitive
work.
In December 2012, state agency non-examining provider, Cathy Simutis, Ph.D., reviewed
Baca’s records and filled out a Mental RFC Assessment (AR 348-50) and a Psychiatric Review
Technique form (AR 352-62). Dr. Simutis indicated that Baca experiences moderate limitations
in his ability to understand and remember detailed instructions, carry out detailed instructions,
maintain attention and concentration for extended periods, work in coordination with or
proximity to others without being distracted by them, complete a normal workday and workweek
without interruptions from psychologically based symptoms, and perform at a consistent pace
without an unreasonable number and length of rest periods. (AR 348-49.) In Section III of the
Mental RFC Assessment, Dr. Simutis wrote that “Claimant can understand, remember, and carry
out simple instructions, make simple decisions, attend and concentrate for 2 hours at a time,
interact adequately with co-workers and supervisors, and respond appropriately to changes in a
routine work setting.” (AR 350.) Dr. Simutis indicated that she reviewed the third party function
reports and Baca’s function reports, as well as a teacher questionnaire and individualized
education plan, and the report of a psychological consultative examination. (AR 364.)
When considering Dr. Simutis’s opinion, the ALJ stated that she gave it great weight and
agreed with the
view that the claimant remains capable of performing simple, unskilled work, as I
agree that the claimant remains capable of engaging in a numerous degree of
activities that have included going to the gym, socializing with friends, playing
video games, skateboarding, maintaining his personal care, preparing simple
meals, performing some household chores, and shopping at the mall, despite his
impairments.
(AR 18 (internal record citation omitted).)

5

Baca argues that the RFC did not reflect all of Dr. Simutis’s assessed limitations and she
failed to explain the discrepancy. Baca is incorrect. While Dr. Simutis did mark that Baca
experiences moderate limitations with regard to performing at a consistent pace, she later wrote
that Baca can attend and concentrate for two hours at a time. The ALJ could have been more
precise in her treatment, but the RFC includes these limitations by excluding Baca from work
which requires “production rate pace.” (AR 16.) The ALJ adequately assessed and incorporated
Dr. Simutis’s findings into the RFC.
Two other agency physicians—David Green, M.D., and Rayme L. Romanik, M.D.—
reviewed Baca’s records and drafted case analyses in December 2012 and December 2013,
respectively. In 2012, Dr. Green noted that there were no “physical allegations or treatment for
physical impairment” in Baca’s records and found that Baca had no severe physical medically
determinable impairments. (AR 366.) Dr. Romanik, in 2013, found that Baca’s migraines are
generally controlled and that there was no record evidence of restless leg syndrome. (AR 507.)
The ALJ gave these opinions great weight and noted that the record contains “minimal evidence
of physical restrictions . . . [and] that the claimant’s providers have noted no significant
functional limitations in the claimant’s physical abilities.” (AR 18 (internal record citation
omitted).)
Baca cites to subsequent medical records related to his mental health treatment for
attention deficit hyperactivity disorder (ADHD), fatigue, and insomnia. He also cites to a 2015
sleep study conducted by Peter Guido, M.D., but failed to note that Dr. Guido found no clinically
significant sleep apnea, sleep related breathing disorder, or periodic limb movement disorder.
(AR 611.) Baca also cites to an April 2015 echocardiogram that found a stable, asymptomoatic

6

aortic stenosis. (AR 592.) Finally, Baca reported shoulder pain and leg pain in 2015. (AR 62022, 631.) According to Baca, the ALJ failed to consider all of these impairments.
This is incorrect. The ALJ is not required to “discuss every piece of evidence,” but rather
to “demonstrate that [she] considered all of the evidence.” Clifton v. Chater, 79 F.3d 1007, 100910 (10th Cir. 1996). The ALJ’s opinion demonstrates that she did consider all of the evidence
and did consider the cumulative impact of Baca’s combination of impairments. (See AR 17-18
(discussing Baca’s migraines, ADHD, and third reports of functional ability).)
Next, Baca argues that the ALJ improperly discounted the opinion of Anita Baca, his
grandmother and guardian. The ALJ concluded that Anita Baca’s opinion was not entitled to
“significant weight” because her statement are inconsistent with the rest of the record, she is not
trained to make exacting observations, and she cannot be considered a disinterested third party
witness based on her relationship with Baca. (AR 18.) Baca contends that Anita Baca’s opinion
was “relevant evidence” and that Baca’s own description of his functioning may present a rosier
picture than the reality. (See Doc. 21 at 10-11.)
Baca’s argument is not fully developed. While SSR 06-03P does provide that evidence
from family members, as well as other non-medical sources, may be used to “provide insight into
the severity of the impairment(s) and how it affects the individual’s ability to function,” the
ruling only requires the “consideration of such evidence when evaluating an ‘acceptable medical
source’s’ opinion.” 2006 WL 2329939, at *2-4 (Aug. 9, 2006). The ALJ demonstrated that she
considered Anita Baca’s opinion in connection with the medical evidence of record. This is
sufficient.
Baca then makes two connected arguments: that ALJ erred in evaluating his credibility
and that the ALJ cited to irrelevant records when making that determination. Baca makes a

7

critical error, however. In arguing that the ALJ determined Baca’s credibility based on
“occasional drug usage” (AR 17), Baca infers that the ALJ meant illegal drug usage. The records
to which the ALJ cites—AR 522, 533, and 541—are records from medical providers indicating
that Baca does not consistently take his prescribed ADHD medication. Baca’s argument
misrepresents or misconstrues the ALJ’s opinion in relation to the records. He does not make any
additional argument as to how the ALJ weighed the evidence when determining his credibility
and has therefore waived any such argument.
Finally, Baca alleges that the ALJ erred by finding that he had no limitation in his ability
to concentrate and that the only reference to his ability to persist or perform is the limitation that
he not work at a production rate pace. Baca claims that these findings are vague and unsupported
by substantial evidence. Baca is incorrect.
Beginning in 2012, Baca’s teachers reported that he “[c]hooses not to do his work, would
rather talk in class and make jokes” and that he “often times goofs around in class instead of
getting work done.” (AR 312.) In a teacher questionnaire filled out by Steve Castille in October
2012, Castille notes that Baca has no problem paying attention when spoken to directly or
sustaining effort during play or sports activities, has slight problems focusing long enough to
finish assigned activities or tasks, and that he is “[e]asily distracted” and “would rather goof
around then [sic] produce work.” (AR 201.) Consultative examiner John Owen, Ph.D., found in
October 2012 that Baca has mild-to-moderate difficulty attending and concentrating. (AR 344.)
Dr. Simutis, however, found that Baca can “attend and concentrate for 2 hours at a time.” (AR
350.)
Nothing in the record directly contradicts Dr. Simutis’s finding. It is not my place to
reweigh the evidence or even to determine if I would have come to the same conclusion. Rather,

8

I am tasked with determining whether substantial evidence supports the ALJ’s determination. In
this instance, I am constrained to say that it does.
As to Baca’s contention that it is a vague finding to prohibit him from production rate
pace, this is argument is undeveloped and bordering on nonsensical. “Production rate pace” is a
commonly used term to refer to assembly line work, but does not refer to goal-oriented tasks like
being an office cleaner. A commonsense reading of the RFC suggests that “production rate pace”
is not vague.
Having reviewed Baca’s claims of error and determined that the ALJ did not err at step
four, I proceed to the alleged errors at step five.
Baca first alleges that the RFC failed to include all of his limitations and thus any reliance
on the VE’s testimony was error. I have already discussed Baca’s claims of error at step four and
determined that the RFC is supported by substantial evidence. Because the RFC is sound, this
argument fails.
Next, Baca argues that the VE’s opinion was contrary to the limitation against production
rate work and that the ALJ improperly found that Baca could perform the jobs of nut sorter, cuff
folder, laminating machine off bearer, and final assembler, which are performed on a production
line. It is unnecessary to determine if this finding is error because the ALJ also found that Baca
could perform the jobs of cleaner/housekeeping and presser/hand. As for the housekeeping job,
Baca claims that this requires “production rate pace” work because he would be expected to
clean a certain number of rooms per day. Baca misconstrues the commonsense application of
“production rate pace.” While he would be required to clean a certain number of rooms in a
given time period, he could stop and start, accelerate or decelerate as necessary in that

9

timeframe. So while the ALJ could have been clearer on this point, she did not commit reversible
error by failing to clarify the VE’s testimony.
Baca then argues that he is unable to work without special supervision, which would
eliminate all competitive employment opportunities. Baca does not argue that this is a failure of
the RFC, but rather an end-run around the VE’s testimony. Baca attempts to “backdoor” a
limitation at step five that does not exist. Dr. Owen opined that Baca would have moderate
difficulty working without supervision, but did not opine that he would require special
supervision. (AR 345.) Dr. Simutis did not adopt either limitation. (AR 348-49.) No other
provider made reference to requiring special supervision of any kind. This argument, likewise,
fails.
Finally, Baca argues that the ALJ was required to clarify any inconsistencies between the
VE’s testimony and the RFC. This is true. However, Baca failed to identify any true
inconsistencies between the VE’s testimony and the RFC.
The ALJ did not commit reversible error at step five.
CONCLUSION
As explained above, the ALJ did not commit reversible error in this case. The decision of
the SSA is therefore affirmed and Baca’s motion to reverse and remand is denied.
It is so ordered.
____________________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

10