Aragon v. Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 20 Plaintiff's Motion to Remand to Agency (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTHONY EUGENE ARAGON,
Plaintiff,
v.

No. 16-cv-1306 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum [Doc. 20] (“Motion”), filed on June 28, 2017. The
Commissioner responded on August 28, 2017. [Doc. 22]. Plaintiff replied on September 11,
2017. [Doc. 23]. The parties have consented to the undersigned’s entering final judgment in this
case. [Doc. 8]. Having meticulously reviewed the entire record and being fully advised in the
premises, the Court finds the Court finds that remand is not warranted. Plaintiff fails to show
that the Administrative Law Judge’s (“ALJ”) decision is not supported by substantial evidence or
is the product of an incorrect legal standard. Accordingly, the Motion will be denied, and
Commissioner’s final decision, affirmed.
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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 re-weigh 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) (internal quotation marks omitted).

2

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; 416.1481. This case fits the general framework, and therefore, the Court reviews
the ALJ’s decision as the Commissioner’s final decision.

2

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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a
five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; 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”3
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), 416.920(a)(4)(i–iv); Grogan, 399 F.3d at 1261. If he cannot
show that his impairment meets or equals a Listing, but she 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
residual functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d
at 1261.

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20 C.F.R. pt. 404, subpt. P, app. 1.

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Procedural Background
Plaintiff applied for a period of disability, disability insurance benefits, and supplemental
security income on September 15, 2011.

Tr. 11.

He alleged a disability-onset date of

January 11, 2011. Tr. 962. His claims were denied initially, on reconsideration, and by an ALJ.
Tr. 11, 23. The Appeals Council denied review. Tr. 1–6. The Commissioner’s decision was
reversed and remanded by the Honorable Lourdes A. Martínez, United States Magistrate Judge,
on March 4, 2016. Tr. 1084–1101; case number 14-cv-1102 LAM (D.N.M.).
On remand, ALJ Lillian Richter held a hearing on May 24, 2016, in Albuquerque,
New Mexico.

Tr. 962, 1024–78.

Plaintiff appeared in person with his attorney and his

18-year-old daughter, Rebecca Aragon. Tr. 969, 1060. The ALJ heard testimony from Plaintiff,
Ms. Aragon, and an impartial vocational expert, Mary D. Weber. Tr. 1025.
The ALJ issued her partially favorable decision on August 2, 2016. Tr. 977. Initially,
she found that Plaintiff met the insured status requirements through September 30, 2014.
Tr. 964. At step one, she found that Plaintiff had not engaged in substantial gainful activity since
his alleged onset date. Tr. 965. Because Plaintiff had not engaged in substantial gainful activity
for at least 12 months, the ALJ proceeded to step two. Id. There, she found that Plaintiff
suffered from the following severe impairments: “opiate dependence on opiate replacement
therapy (methadone); heroin dependence; post traumatic stress disorder; major depressive
disorder; generalized anxiety disorder; obesity; hypertension; obstructive sleep apnea; chronic
obstructive pulmonary disease [“COPD”]; hypoxemia; sinus tachycardia; diabetes mellitus; and
gastroesophageal reflux disease[.]” Id. At step three, the ALJ found that none of Plaintiff’s
impairments, alone or in combination, met or medically equaled a Listing. Tr. 965–68.

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Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC. Tr. 968–74. The ALJ assessed two different RFCs, one prior
to March 23, 2013, and one beginning on March 23, 2013.4 Id. The Court borrows Plaintiff’s
chart, which contains both RFCs and displays the differences in bold. [Doc. 20] at 4.
Before March 23, 2013
• Can perform light work. Can lift,
carry, push and pull 10 pounds
frequently
and
20
pounds
occasionally. Can stand, walk, and sit
for 6 hours.
• Can occasionally climb ramps and
stairs.
• Never climb ladders, ropes, or
scaffolds, kneel, crouch and crawl, or
balance
• Should avoid exposure to
unprotected heights and moving
mechanical parts.
• Limited to simple, routine and
repetitive work
• Limited to making simple work
related decision in a workplace with
few changes in the routine work
setting.
• Limited to occasional contact with
supervisors, coworkers and members
of the public.
• Cannot perform work at assembly
line production pace but could meet
end of day goals.

• Can perform light work. Can lift, carry, push
and pull 5 pounds frequently and 10 pounds
occasionally. Can stand/walk for 2 hours
and sit for 6 hours.
• Can occasionally climb ramps, stairs, and
stoop.
• Can occasionally climb ladders, ropes, or
scaffolds.
• Never kneel, crouch, crawl, or balance
• Should avoid exposure to unprotected
heights, moving mechanical parts, dust, odors,
fumes and pulmonary irritants.
• Limited to simple, routine and repetitive
work
• Limited to making simple work related
decision in a workplace with few changes in
the routine work setting.
• Limited to occasional contact with
supervisors, coworkers and members of the
public.
• Cannot perform work at assembly line
production pace but could meet end of day
goals.
• The claimant requires the use of portable
oxygen.

Tr. 968.

RFC

March 23, 2013, and after

Tr. 974.

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March 23, 2013, was critical for the ALJ because Plaintiff was taken to the emergency room on that date. Tr. 966.
He complained of shortness of breath and confusion. Id. His oxygen saturation on room air was 79%. He was
placed on 3 liters of oxygen, and his oxygen saturation improved to 94%. Id. A chest x-ray showed hyperinflation.
Id. He was diagnosed with COPD and prescribed continuous supplemental oxygen. Id.

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The ALJ explained that the RFC prior to March 23, 2013, assumed that Plaintiff was still using
drugs. Tr. 969 (“[T]the residual functional capacity above describes what the claimant could do
during period when he was not abstinent [from dugs] and complying with drug treatment.”)
(emphasis added); Tr. 973 (“[T]he residual functional capacity describes what the claimant was
able to do in light of his substance abuse disorder.”).
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work.
Tr. 974–75. At step five, the ALJ found that prior to March 23, 2013, and based on his RFC,
age, education, and work experience and the testimony of the VE, Plaintiff could perform work
that exists in significant numbers in the national economy. Tr. 975–76. Beginning on March 23,
2013, however, the ALJ found that based on Plaintiff’s RFC, age, education, and work
experience and the testimony of the VE,5 there were no jobs that existed in significant numbers
in the national economy that Plaintiff could perform. Tr. 976. Ultimately, the ALJ found that
Plaintiff was not disabled, as defined by the Act, prior to March 23, 2013, but that he became
disabled as of that date. The ALJ explicitly found that Plaintiff’s substance abuse disorders were
not contributing factors material to the determination of disability. Id. The ALJ, therefore,
denied the claims as to the time period prior to March 23, 2013, but approved them beginning on
March 23, 2013. Tr. 976–77. Plaintiff filed the instant action on November 30, 2016, rather
than requesting review by the Appeals Council, as permitted by 20 C.F.R. §§ 404.984(d),
416.1484(d). [Doc. 1].

5

In relevant part, the VE testified that the use of portable oxygen eliminates all work. Tr. 1074.

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Analysis
The evidence as to Plaintiff’s onset date was not ambiguous, and therefore, the ALJ was
not required to call a medical advisor. Additionally, Plaintiff fails to show any error in the ALJ’s
application of the Drug Addiction and Alcoholism (“DAA”) standard.
The evidence regarding Plaintiff’s onset date was not ambiguous.
SSR 83-20 provides that an ALJ should consult a medical advisor at the hearing when the
onset date of a disability must be inferred. See 1983 SSR LEXIS 25, 1983 WL 31249, at *3.
With respect to the onset date of a disability, an ALJ “may not make negative inferences from an
ambiguous record; rather, [she] must call a medical advisor pursuant to SSR 83-20, 1983 SSR
LEXIS 25.” Blea v. Barnhart, 466 F.3d 903, 913 (10th Cir. 2006). “[T]he issue of whether the
ALJ erred by failing to call a medical advisor turns on whether the evidence concerning the onset
of [the plaintiff’s] disabilities was ambiguous, or alternatively, whether the medical evidence
clearly documented the progression of his conditions.” Id. at 912. In determining the onset date
of disability for disabilities of non-traumatic origin, SSR 83-20 requires that an ALJ consider the
claimant’s “allegations, work history, if any, and the medical and other evidence concerning
impairment severity.” Id. at 909 (quoting SSR 83-20).
Plaintiff argues that his COPD and obesity were slowly progressive, and thus, the
medical evidence of his onset date was ambiguous.

[Doc. 20] at 8–9. In particular, Plaintiff

points to: (1) an August 2011 record, showing evaluation for a sleep-related breathing disorder,
Tr. 673–82; (2) a December 2011 record, reflecting complaints of being out of breath during the
day, Tr. 783, and a prescription to utilize an oxygen concentrator while sitting in front of the TV,
Tr. 785; (3) a June 2012 record, showing low oxygen saturation level, Tr. 862. Plaintiff argues

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that this evidence could reasonably be interpreted as showing that prior to March 23, 2013, he
was disabled. [Doc. 20] at 8–9. Specifically, Plaintiff argues that these records could reasonably
be interpreted as showing that, prior to March 23, 2013, Plaintiff could only stand/walk for
2 hours out of an 8-hour day and could not tolerate exposure to dust, odors, fumes, and any other
pulmonary irritants. Id. at 9 (referencing the disabling RFC, found at Tr. 974).
The Court agrees with Plaintiff—as far as his argument goes. The medical records he
cites, indeed, are susceptible to a finding that Plaintiff could only stand/walk for two hours and
should not be exposed to pulmonary irritants. Importantly, however, Plaintiff does not argue—
much less point to any evidence to support a finding—that these limitations are disabling.
Equally importantly, Plaintiff makes no argument one way or the other about the restriction in
his RFC for the use of portable oxygen. The VE, however, explicitly testified that the use of
portable oxygen was the disabling limitation.
Q [by ALJ] Okay. All right, let me just ask this before I go on to
the next hypothetical. Once—once an individual requires the use
of portable oxygen, does that—is that going to rule out all work?
A [by VE] I would say so. The DOT, of course, does not mention
that, but typically that usually creates fatigue and could be
difficult, depending on the work environment for the individual to
get along around safely and I—I don’t believe that would be
acceptable.
Q Okay. So any—any further hypotheticals that I gave you, no
matter what they were, if I included the—that the individual would
require the use of portable oxygen at all times in the workplace,
your answer is going to be no work, is that correct?
A I would say yes—
Q Okay.
A —that’s correct.
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Tr. 1074. In sum, for three reasons, the Court finds that the exclusive disabling limitation here
was the use of portable oxygen. First, the VE’s testimony explicitly supports the finding.
Second, Plaintiff does not argue that the other limitations—walking/standing for 2 hours out of
an 8-hour day and no exposure to dust, odors, fumes, and any other pulmonary irritants—were
disabling. Third, Plaintiff does not argue that the use of portable oxygen is not the exclusive
disabling limitation.
Having found that the exclusive disabling limitation was the use of portable oxygen, the
Court further finds that this record is not ambiguous as to Plaintiff’s onset date. Plaintiff was not
prescribed portable oxygen until March 23, 2013. Tr. 966, 974. Plaintiff does not argue
otherwise. An earlier onset date could not be supported by the record. The ALJ was not
required to call a medical advisor. See SSR 83-20. There is no error.
Plaintiff fails to show any error in the ALJ’s application of the DAA standard.
The Court is not persuaded by Plaintiff’s argument that the ALJ failed to apply the proper
standard for Drug Addiction and Alcoholism (“DAA”) cases.

[Doc. 20] at 11–13 (citing

SSR 13-2p). As to the time period prior to March 23, 2013, the ALJ found that Plaintiff was not
disabled even considering his drug addiction. Tr. 969 (“[T]the residual functional capacity
above describes what the claimant could do during period when he was not abstinent [from dugs]
and complying with drug treatment.”) (emphasis added); Tr. 973 (“[T]he residual functional
capacity describes what the claimant was able to do in light of his substance abuse disorder.”).
As to March 23, 2013, and later, the ALJ found that Plaintiff’s drug addiction was not material to
his disability. Tr. 976. Plaintiff fails to show that anything more was required by SSR 13-2p,
2013 SSR LEXIS 2.

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IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 20] is
DENIED. The Commissioner’s final decision is affirmed.
IT IS SO ORDERED.

____________________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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