Aguirre v. Social Security Administration

Filing 27

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 20 Plaintiff's MOTION to Remand to Agency be DENIED as outlined in the PF&RD. Objections to the PF&RD due by 12/22/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MIGUEL ANTONIO AGUIRRE,
Plaintiff,
v.

No. CV 16-1319 MV/CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff Miguel Antonio Aguirre’s Motion to
Reverse or Remand Administrative Agency Decision With Supporting Memorandum
(the “Motion”), (Doc. 20), filed July 31, 2017; and Defendant Commissioner Nancy A.
Berryhill’s Brief in Response to Plaintiff’s Motion to Reverse and Remand the Agency’s
Administrative Decision (the “Response”), (Doc. 24), filed September 13, 2017. No reply
has been filed and the time for doing so has passed. United States District Judge
Martha Vazquez referred this case to Magistrate Judge Carmen E. Garza to perform
legal analysis and recommend an ultimate disposition. (Doc. 26).
Mr. Aguirre filed an application for supplemental security income on September
17, 2012, alleging disability beginning August 15, 2012. (Administrative Record “AR”
13). Mr. Aguirre claimed he was limited in his ability to work due to post traumatic stress
disorder (“PTSD”), depression, and anxiety. (AR 227). Mr. Aguirre’s application was
denied initially on January 22, 2013, and upon reconsideration on May 1, 2013. (AR 13).
Mr. Aguirre requested a hearing before an Administrative Law Judge (“ALJ”), which was
held on April 22, 2015, before ALJ Barry O’Melinn. (AR 32). Mr. Aguirre and Leslie J.

White, an impartial vocational expert (“VE”), testified at the hearing, and Mr. Aguirre was
represented by attorney Ione Gutierrez. (AR 35-57).
On June 22, 2015, the ALJ issued his decision, finding Mr. Aguirre not disabled
at any time between his alleged disability onset date through the date of the decision.
(AR 26). Mr. Aguirre requested review by the Appeals Council, (AR 8), which was
denied, (AR 2-5), making the ALJ’s decision the Commissioner’s final decision for
purposes of this appeal.
Mr. Aguirre, who is proceeding in this appeal pro se, now argues that the ALJ
erred by: (1) failing to properly consider the opinions of his treating physicians and
therapists; (2) failing to find that his PTSD and depression constitute severe
impairments; (3) using the Medical Vocational Guidelines to deny benefits; (4) failing to
consider the effect of Mr. Aguirre’s inability to find and maintain employment; and (5)
“not conducting an expert analysis of the mental disorders of PTSD and Major
Depression and how they can affect Plaintiff’s occupational base.” (Doc. 1 at 1). The
Court has reviewed the Motion, the Response, and the relevant law. Additionally, the
Court has meticulously reviewed the administrative record. Because the Court finds that
the Commissioner followed the correct legal standards and supported his decision with
substantial evidence, the Court recommends that Mr. Aguirre’s Motion be DENIED.
I.

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); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.

2

1992). 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); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). The Commissioner’s “failure to apply the correct legal standards, or
show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d
1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th
Cir. 1994)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for the Commissioner’s. Langley,
373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court’s review is limited to the
Commissioner’s final decision, 42 U.S.C. § 405(g), which is generally the ALJ’s
decision, rather than the Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ’s 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. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record must include “anything that may undercut or detract from the
ALJ’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 ALJ]’s findings from

3

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)).
Because Mr. Aguirre proceeds pro se, the Court must construe his pleadings
liberally and hold them to a less stringent standard than is required of a party
represented by counsel. Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th
Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal
construction requires courts to make some allowance for a pro se litigant’s “failure to
cite proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at
1110. However, “the Court cannot take on the responsibility of serving as the litigant’s
attorney in constructing arguments and searching the record.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
II.

Applicable Law and Sequential Evaluation Process

For purposes of supplemental security income, a claimant establishes a disability
when 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) (2015), 42 U.S.C. § 1382c(a)(3)(A)
(2004); 20 C.F.R. § 416.905(a) (2012). In order to determine whether a claimant is
disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”).
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920 (2012).
At the first four steps of the SEP, the claimant bears the burden of showing: (1)
she is not engaged in “substantial gainful activity”; (2) she has a “severe medically

4

determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and either (3) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i-iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant
cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant is able to perform other
work in the national economy, considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.
III.

Background

Mr. Aguirre applied for supplemental security income due to PTSD, depression,
and anxiety. (AR 227). At step one, the ALJ determined that Mr. Aguirre had not
engaged in substantial gainful activity since September 17, 2012, the alleged onset
date. (AR 15). At step two, the ALJ concluded Mr. Aguirre has the following two severe
impairments, an affective disorder and anxiety. Id. At step three, the ALJ determined
that neither of Mr. Aguirre’s impairments, solely or in combination, equaled one of the
listed impairments in 20 C.F.R. §§ 416.920(d), 416.925 and 416.926. (AR 16-18).
At step four, the ALJ found that Mr. Aguirre has the RFC to perform a full range
of work at all exertional levels. (AR 18). Regarding Mr. Aguirre’s nonexertional
limitations, the ALJ found that Mr. Aguirre can: understand, carry out, and remember
simple, routine, one-to-two step instructions and make commensurate work related
decisions; respond appropriately to supervision, coworkers, and work situations; deal
with routine changes in the work setting; and maintain concentration, persistence, and
1

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

5

pace for up to and including two hours at a time with normal breaks throughout the
workday. Id. The ALJ further found that Mr. Aguirre “is suitable for jobs involving work
primarily with things and not people.” (AR 19).
In formulating Mr. Aguirre’s RFC, the ALJ stated that he considered Mr. Aguirre’s
symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with objective medical and other evidence, as required by 20 C.F.R. §
416.929 and SSRs 96-4p and 96-7p. Id. The ALJ also stated that he considered opinion
evidence in accordance with 20 C.F.R. § 416.927 and SSRs 96-2p, 96-5p, 96-6p, and
06-3p. Id. The ALJ engaged in a thorough discussion of Mr. Aguirre’s testimony at the
hearing and of the statements submitted as part of Mr. Aguirre’s Social Security
application. (AR 19-20). The ALJ found that Mr. Aguirre’s daily activities are not limited
to the extent one would expect given his complaints of disabling symptoms and
limitations, “which weakens [Mr. Aguirre’s] credibility.” (AR 20). The ALJ also stated that
inconsistencies in the record further weakened Mr. Aguirre’s credibility. Id.
Turning to the medical evidence, the ALJ gave significant weight to the opinions
of State Agency psychological consultants, Jerry Henderson, Ph.D., and Jon Etienne
Mourot, Ph.D. (AR 21). The ALJ stated that their opinions are supported by objective
medical evidence in the record, such as treatment notes, mental status examinations,
and Mr. Aguirre’s statements. (AR 21-22). The ALJ gave some weight to the opinions of
State Agency consultative examiner, Davis Brimberg, Ph.D. (AR 22). The ALJ explained
that Dr. Brimberg’s opinions that Mr. Aguirre has good abilities to reason, understand,
and remember information, and basic abilities to concentrate and persist at tasks,
support a finding that Mr. Aguirre can perform unskilled work, and that these portions of

6

Dr. Brimberg’s opinions are supported by treatment notes and mental status
examinations. Id. However, the ALJ found that Dr. Brimberg’s assignment of a Global
Assessment of Functioning (“GAF”) score of between 50 and 55 is inconsistent with Dr.
Brimberg’s finding that Mr. Aguirre can adapt well to social situations. Id.
Next, the ALJ gave little weight to the opinions of Certified Nurse Practitioner
(“CNP”) Asha Pollem, reasoning that Ms. Pollem is not an acceptable medical source
and her opinions are inconsistent with subsequent treatment notes that indicate Mr.
Aguirre was stable and doing well. Id. The ALJ further found that Mr. Aguirre is more
limited socially than Ms. Pollem’s opinions indicate. Id. The ALJ also gave little weight to
the opinions of Licensed Professional Clinical Counselor (“LPCC”) Peggy Harter, stating
that she is not an acceptable medical source, and finding that her opinions are
inconsistent with subsequent treatment notes. (AR 23). The ALJ considered a report by
Mr. Aguirre’s mother, stating that significant weight cannot be given to her report
because she is not medically trained and is not a disinterested third party, and because
her report is not consistent with the opinions and observations of the medical doctors in
this case. Id. Finally, the ALJ stated that he gave some weight to Mr. Aguirre’s GAF
score of 55 because that score is consistent with the evidence in the record, but little
weight to his GAF score of 40 because that score is inconsistent with the evidence and
with Mr. Aguirre’s reported activities of daily living. Id. The ALJ noted that the record
also contains GAF scores ranging from 42 to 55, but that he gave these scores little
weight because they were given prior to the period at issue. (AR 24).
The ALJ found that Mr. Aguirre has no past relevant work, so the ALJ proceeded
to step five. (AR 24). At step five, the ALJ noted that Mr. Aguirre was 49 years old on

7

the alleged disability onset date, and therefore classified as “a younger individual” in
accordance with the Regulations. Id. The ALJ determined that Mr. Aguirre has at least a
high school education and is able to communicate in English. Id. The ALJ noted that the
VE testified at the hearing that an individual with Mr. Aguirre’s same age, education,
work experience, and RFC could perform the jobs of hand packer, laundry checker, and
cleaner. (AR 25). The VE stated that those jobs existed in significant numbers in the
national economy. Id. After finding the VE’s testimony consistent with the Dictionary of
Occupational Titles, the ALJ adopted the VE’s testimony and concluded that, because
Mr. Aguirre is capable of performing work existing in significant numbers in the national
economy, he is not disabled pursuant to 20 C.F.R. § 416.920(g). Id.
IV.

Analysis

Mr. Aguirre’s Motion consists of one paragraph stating that the ALJ erred by: (1)
failing to properly consider the opinions of Mr. Aguirre’s treating physicians and
therapists; (2) failing to find that Mr. Aguirre’s PTSD and depression constitute severe
impairments; (3) using the Medical Vocational Guidelines to deny benefits; (4) failing to
consider the effect of Mr. Aguirre’s inability to find and maintain employment; and (5)
“not conducting an expert analysis of the mental disorders of PTSD and Major
Depression and how they can affect Plaintiff’s occupational base.” (Doc. 1 at 1). In
response, the Commissioner argues that the ALJ’s step two findings encompassed all
of Mr. Aguirre’s mental impairments, the ALJ properly evaluated all of the medical
source opinions, and the ALJ did not err in using the Medical Vocational Guidelines at
step five. (Doc. 24 at 5-10). The Commissioner further argues that Mr. Aguirre’s

8

remaining two claims should be denied because Mr. Aguirre fails to support these
claims or explain how they affected the ALJ’s decision. Id. at 10-11.
A. The ALJ’s Step Two Findings
Mr. Aguirre contends the ALJ erred by failing to find that his “condition of PTSD
and Major Depression” constituted severe impairments. (Doc. 1 at 1). The
Commissioner responds that the ALJ’s finding of severe impairments encompasses Mr.
Aguirre’s PTSD and depression. (Doc. 24I at 5-6).
At step two, the ALJ considers a claimant’s impairments to determine whether
they are severe, which is defined as an impairment that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). At this
step, the claimant’s burden is de minimus, and “only those claimants with slight
abnormalities that do not significantly limit any basic work activity can be denied
benefits without undertaking the subsequent steps of the sequential evaluation
process.” Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (citations omitted).
The claimant need only establish—and the ALJ need only find—one severe impairment
to avoid a denial of benefits at step two. See Oldham v. Astrue, 509 F.3d 1254, 1256-67
(10th Cir. 2007). Therefore, “the failure to find a particular impairment severe at step two
is not reversible error when the ALJ finds at least one other impairment is severe.”
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).
Here, the ALJ concluded at step two that Mr. Aguirre has two severe
impairments: affective disorder and anxiety. (AR 15). As noted by the Commissioner,
affective disorder encompasses the impairments of PTSD and depression. See (Doc.
24 at 5) (citing Affective Disorders: Mood Disorders,

9

https://www.isad.org.uk/aboutus/affective-disorders.asp). Moreover, because the ALJ
found that Mr. Aguirre has at least one severe impairment, and proceeded in the
sequential evaluation process, any error by the ALJ in not finding any additional severe
impairments at step two is harmless. The Court, therefore, finds that the ALJ did not err
at step two.
B. The ALJ’s Consideration of Treating Medical Source Opinions
Next, Mr. Aguirre contends the ALJ committed legal error “by not giving weight to
the opinions of all treating physicians and therapists and not giving an adequate
explanation why.” (Doc. 1). In response, the Commissioner states that it appears that
Mr. Aguirre is referring to the opinions of Ms. Pollem and Ms. Harter as they are the only
treating medical sources in the record. (Doc. 24 at 6). The Commissioner contends the
ALJ properly considered Ms. Pollem’s and Ms. Harter’s opinions by giving sufficient
reasons for the weight he gave them. Id. at 6-8.
1. Ms. Pollem’s Opinions
Ms. Pollem completed a “Medical Source Statement: Mental Limitations” on
October 17, 2013. (AR 406-10). Ms. Pollem stated that she had seven visits with Mr.
Aguirre since August 2012, and she assigned him a GAF score of 50. (AR 406). She
opined that Mr. Aguirre is able to understand, remember, and carry out short and simple
instructions, remember work-like procedures, be aware of normal hazards, and take
appropriate precautions. (AR 408). However, she opined that Mr. Aguirre is seriously
limited or unable to meet the competitive standards in most of the other mental abilities
and aptitudes necessary to do unskilled work. Id. Finally, Ms. Pollem found that Mr.
Aguirre has a satisfactory ability to interact appropriately with the general public and

10

maintain socially appropriate behavior, and would miss about four days of work per
month. (AR 409-10).
Consistent with Ms. Pollem’s opinions, the ALJ determined that Mr. Aguirre could
understand, carry out, and remember simple, routine, one-to-two step instructions, and
make commensurate work-related decisions. (AR 18). However, the ALJ found Mr.
Aguirre more limited in his social interactions than Ms. Pollem found, so the ALJ further
limited Mr. Aguirre to jobs involving work primarily with things and not people. (AR 22).
The ALJ explained that he gave little weight to portions of Ms. Pollem’s opinions
because she is not an acceptable medical source, and because her opinions are
inconsistent with evidence in the record, such as subsequent treatment notes from 2014
and 2015 indicating Mr. Aguirre was stable and doing well. Id.
Social Security Regulations require ALJs to evaluate every medical opinion in
the record. See 20 C.F.R. § 416.927(b)-(c); Social Security Ruling “SSR” 96-6p, 1996
WL 374180 (July 2, 1996). Every medical source opinion should be weighed by the ALJ
in consideration of the following applicable “deference factors”:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citation omitted); see
also 20 C.F.R. § 416.927(c)-(d). Ultimately, the ALJ must give good reasons that are
“sufficiently specific to [be] clear to any subsequent reviewers” for the weight that she
ultimately assigns the opinions. Langley, 373 F.3d at 1119 (citation omitted). Failure to
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do so constitutes legal error. See Kerwin v. Astrue, 244 Fed. Appx. 880, 884 (10th Cir.
2007) (unpublished).
As a Certified Nurse Practitioner, Ms. Pollem is not an “acceptable medical
source” pursuant to 20 C.F.R. § 416.913(a)(1)-(5), which provides that “[a]cceptable
medical sources” include physicians, psychologists, certain optometrists and podiatrists,
and certain speech-language pathologists. Instead, Ms. Pollem is an “other” medical
source, pursuant to 20 C.F.R. § 416.913(d)(1). The distinction between acceptable
medical sources and other medical sources “is necessary because ‘[i]nformation from
. . . ‘other [medical] sources' cannot establish the existence of a medically determinable
impairment.’ . . . Further, ‘only acceptable medical sources can give . . . medical
opinions’ and ‘be considered treating sources . . . whose medical opinions may be
entitled to controlling weight.’” Bowman v. Astrue, 511 F.3d 1270, 1275 n.2 (10th Cir.
2008) (quoting SSR 06-03p, 2006 WL 2329939 at *2 (Aug. 9, 2006)). Nevertheless, the
opinions of “other” medical sources must still be weighed using the factors set out in 20
C.F.R. § 416.927(d). See Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007); SSR
06-03p, 2006 WL 2329939, at *4.
The ALJ explained that he rejected portions of Ms. Pollem’s opinions because
they are inconsistent with medical evidence in the record, such as subsequent
treatment notes from 2014 and 2015 indicating that Mr. Aguirre was stable and doing
well. (AR 22). Specifically, the ALJ relied on treatment notes that showed the following:
February 2014, Mr. Aguirre was able to focus and concentrate better, appeared to be
stable, and was making a lot of progress with managing his anxiety and depression,
(AR 439, 445); March 2014, Mr. Aguirre was psychiatrically stable overall, but had some

12

ongoing anxiety, (AR 428); April 2014, Mr. Aguirre appeared to be doing well overall,
was in a good mood, and was easily engaged in conversation, (AR 427); July 2014, Mr.
Aguirre was going to three different community center gyms and was feeling better in
general, (AR 502); August 2014, Mr. Aguirre reported that everything was still going
well, his anxiety had lessened, and he was making progress with his mental health, (AR
412); September 2014, Mr. Aguirre was doing well, getting out of his home, and running
errands, (AR 536); December 2014 and January 2015, Mr. Aguirre’s mood was
improved, (AR 488-89). See (AR 21). The Court finds that the ALJ’s reasoning is
sufficiently specific and clear so that the Court is able to meaningfully review the ALJ’s
consideration of Ms. Pollem’s opinions. Moreover, Mr. Aguirre cites to no medical
evidence supporting the rejected portions of Ms. Pollem’s opinions, and the opinions of
State Agency consultants Dr. Brimberg, Dr. Henderson, and Dr. Mourot, all support the
ALJ’s RFC determination. See (AR 359, Dr. Brimberg’s opinions that Mr. Aguirre has
good abilities to reason, understand, and remember information, and adapt to work and
social situations, and has basic abilities to concentrate and persist at tasks); (AR 72-73,
83-84, Dr. Henderson’s and Dr. Mourot’s opinions that Mr. Aguirre can do simple,
repetitive 1-2 step tasks with limited public or interpersonal contacts, and thus can
perform unskilled work). Accordingly, the Court finds the ALJ properly considered Ms.
Pollem’s opinions.
2. Ms. Harter’s Opinions
As a Licensed Professional Clinical Counselor, Ms. Harter is an “other” medical
source, pursuant to 20 C.F.R. § 416.913(d)(1). On October 23, 2013, Ms. Harter
completed a “Medical Source Statement: Mental Limitations.” (AR 400-04). Ms. Harter

13

stated she met with Mr. Aguirre “weekly since 8/10/2012,” and assigned him a GAF
score of between 50 and 55. (AR 400). She opined that Mr. Aguirre is able to be aware
of normal hazards and take appropriate precautions, and that he has limited but
satisfactory abilities to maintain regular attendance, be punctual, and ask simple
questions or request assistance. (AR 402). In all other mental abilities and aptitudes
necessary to do unskilled work, Ms. Harter opined that Mr. Aguirre is seriously limited,
unable to meet the competitive standards, or has no useful ability to function. Id. Finally,
Ms. Harter found that Mr. Aguirre has a satisfactory ability to deal with the stress of
semiskilled and skilled work, and would miss more than four days of work per month.
(AR 403-04).
Similar to Ms. Pollem’s opinions, the ALJ gave little weight to Ms. Harter’s
opinions because she is not an acceptable medical source, and because her opinions
are inconsistent with evidence in the record, such as subsequent treatment notes from
2014 and 2015 indicating Mr. Aguirre was stable and doing well. (AR 23). For the same
reasons stated above, the Court finds that the ALJ sufficiently explained the weight
given to Ms. Harter’s opinions and provided support for his decision. The ALJ did not err
by relying on subsequent treatment notes from 2014 and 2015 which indicate that Mr.
Aguirre was stable and doing well, and the ALJ’s decision is further supported by the
opinions of the State Agency consultants Dr. Brimberg, Dr. Henderson, and Dr. Mourot.
See (AR 412, 427-28, 439, 445, 488-89, 502, 536, 2014 and 2015 treatment notes
relied on by the ALJ), (AR 72-73, 83-84, 359, opinions of Dr. Brimberg, Dr. Henderson,
and Dr. Mourot). The Court finds that these reasons are sufficiently specific and clear so
that the Court is able to meaningfully review the ALJ’s consideration of Ms. Harter’s

14

opinions. Accordingly, the Court finds the ALJ properly considered Ms. Harter’s
opinions.
C. The ALJ’s Step Five Findings
Next, Mr. Aguirre contends the ALJ erred “in using the Medical Vocational
Guidelines to deny Plaintiff benefits.” (Doc. 20). In response, the Commissioner argues
the ALJ properly used the Guidelines as a framework for his decision, and that the
ALJ’s step five decision was supported by substantial evidence. (Doc. 24 at 9-10).
At step five, an ALJ must first assess the claimant’s present job qualifications by
considering the claimant’s physical ability, age, education and work experience, and
then the ALJ must determine whether jobs exist in the national economy that a person
having the claimant’s qualifications could perform. Heckler v. Campbell, 461 U.S. 458,
460-61 (1983). The Medical-Vocational Guidelines (“the Grids”) were promulgated to
improve uniformity and efficiency at the second stage of step five by identifying jobs
requiring specific combinations of a claimant’s physical ability, age, education, and work
experience. Id. at 461-62. Importantly, the Grids may not be applied conclusively where
nonexertional impairments are present. Channel v. Heckler, 747 F.2d 577, 579 (10th
Cir. 1984). Instead, when a claimant has both exertional and nonexertional impairments,
and the claimant is not disabled by reason of the exertional impairments alone, the ALJ
may use the Grids as a framework for consideration of how much the claimant’s work
capability is further diminished by the nonexertional limitations. SSR 85-15, 1984 WL
56857, at *1.
Here, the ALJ stated that Mr. Aguirre’s ability to perform work at all exertional
levels has been compromised by nonexertional limitations. (AR 25). To determine the

15

extent to which Mr. Aguirre’s limitations erode the occupational base, the ALJ asked the
VE whether jobs exist in the national economy for an individual with Mr. Aguirre’s age,
education, work experience, and RFC, and the VE testified that such an individual
would be able to perform the requirements of hand packer, laundry checker, and
cleaner. Id. The ALJ concluded that, based on the testimony of the VE, Mr. Aguirre is
capable of performing work that exists in significant numbers in the national economy,
and that a finding of “not disabled” is therefore appropriate under the Grids. Id.
Based on the foregoing, the Court finds that, instead of conclusively relying on
the Grids, the ALJ properly used Grid Rule 204.00 as a framework and elicited VE
testimony to determine whether jobs exist in the national economy for someone with Mr.
Aguirre’s limitations. Therefore, the ALJ’s findings at step five are not in error.
D. Mr. Aguirre’s Remaining Claims
Finally, Mr. Aguirre contends that the ALJ erred “in failing to consider the effect of
the Plaintiff’s inability to find employment and maintain employment throughout the
years caused by his mental conditions of PTSD and Major Depression,” and “in not
conducting an expert analysis of the mental disorders of PTSD and Major Depression
and how they can affect Plaintiff’s occupational base.” (Doc. 1). The Commissioner
contends that Mr. Aguirre fails to support these claims or explain how they affected the
ALJ’s decision. (Doc. 24 at 11).
As stated, the standard of review in a Social Security appeal is whether the ALJ’s
decision is supported by substantial evidence and whether the correct legal standards
were applied. Maes, 522 F.3d 1096. Here, the ALJ thoroughly discussed Mr. Aguirre’s
testimony at the hearing, the statements Mr. Aguirre submitted as part of his Social

16

Security application, Mr. Aguirre’s mother’s report, and the medical evidence in the
record, including treatment notes and opinion evidence. (AR 19-24). Contrary to Mr.
Aguirre’s assertion, the ALJ considered how Mr. Aguirre’s mental limitations affect both
his ability to work and the occupational base. To the extent Mr. Aguirre contends the
ALJ should have ordered additional evidence, the Court finds that the criteria for doing
so are not met in this case. See Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir.
1997) (explaining that an ALJ should order additional examination of a claimant when
there is a direct conflict in the medical evidence requiring resolution, where the medical
evidence in the record is inconclusive, or where additional tests are required to explain
a diagnosis already contained in the record). Therefore, the Court finds no support for
these remaining claims and recommends they be denied.
V.

Recommendation

For the reasons stated above, the Court finds that the ALJ’s decision was
supported by substantial evidence and the ALJ applied the proper legal standards. IT IS
THEREFORE RECOMMENDED that Mr. Aguirre’s Motion to Reverse or Remand
Administrative Agency Decision With Supporting Memorandum, (Doc. 20), be DENIED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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