Thompson v. Commissioner of Social Security

Filing 23

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 14 Motion to Remand to Agency by Magistrate Judge Gregory J. Fouratt. Objections to R&R due by 6/12/2018. (kdj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
TODD JOSEPH THOMPSON,
Plaintiff,
v.

Civ. No. 17‐356 WJ/GJF

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff’s “Motion to Reverse Commissioner’s
Administrative Decision and Remand Claim” [ECF No. 14] and “Brief in Support of the Motion
to Reverse and Remand” (collectively, “Motion”), 1 filed on August 2, 2017. ECF No. 15. The
Commissioner responded on September 27, 2017. ECF No. 21. Plaintiff replied on October 25,
2017. ECF No. 22. On August 22, 2017, Chief U.S. District Judge William P. Johnson referred
the above-captioned cause to this Court for recommended findings and disposition. ECF No. 18.
Having meticulously reviewed the entire record and the parties’ pleadings, the Court finds that
the Motion is not well-taken and recommends that it be denied.
I.

BACKGROUND
Plaintiff is a fifty-four year old resident of Albuquerque, New Mexico. Administrative R.

(“AR”) 56-57, ECF No. 11. Plaintiff earned his high school diploma and then enlisted in the
United States Air Force, where he served three periods of active duty between 1983 and 2011.
AR 184, 672. When not on active duty, Plaintiff also served as a federal law enforcement officer

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Plaintiff reserves the substance of his Motion for his Brief in Support. Therefore, all citations to Plaintiff’s Motion
refer to Plaintiff’s Brief in Support [ECF No. 15] and not the Motion itself [ECF No. 14].

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at the U.S. Department of Veterans Affairs (“VA”). AR 184. Plaintiff reported that he stopped
working on January 10, 2012. AR 183.
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) under Title II,
Sections 216 and 223 of the Social Security Act (“the Act”), 42 U.S.C. §§ 416(i), 423 (2012),
alleging disability beginning on January 6, 2012, due to post traumatic stress disorder (“PTSD”),
spinal injuries, sciatica, complications from knee replacement, and sleep apnea. AR 183.
Plaintiff’s application was denied initially and upon reconsideration. AR 67, 80. At his request,
Plaintiff received a de novo hearing before Administrative Law Judge (“ALJ”) Myriam
Fernandez-Rice on September 23, 2015, at which Plaintiff, his legal counsel, and a vocational
expert appeared. AR 27-55. On November 16, 2015, the ALJ issued her decision, finding that
Plaintiff was not disabled within the meaning of the Act. AR 12-22.
After the ALJ issued her decision, Plaintiff submitted additional evidence to the Social
Security Administration’s (“SSA’s”) Appeals Council and requested review. See AR 1-6, 24445. The additional evidence consisted of a VA disability rating dated November 6, 2015, just 10
days before the ALJ issued her decision. See AR 22, 672. The VA determined Plaintiff to be
unemployable under its regulations as of March 31, 2012, due to the combined effects of his
right and left knee issues, lumbar spine issues, and PTSD. AR 672-73. The Appeals Council
considered Plaintiff’s VA rating and added it to the record, but found that it did not provide a
basis for changing the ALJ’s decision, and thus declined review on January 20, 2017. See AR 16. Consequently, the ALJ’s decision became the final decision of the Commissioner. 20 C.F.R.
§ 422.210(a) (2017).
Plaintiff filed the instant appeal on March 21, 2017. ECF No. 1.

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II.

PLAINTIFF’S CLAIM
Plaintiff’s lone allegation of error is that the Appeals Council erred by failing to properly

evaluate the disability determination he received from the VA. Pl.’s Mot. 8-12, ECF No. 15.
III.

APPLICABLE LAW
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision

becomes the final decision of the agency. 2 The Court’s review of that final agency decision is
both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The
standard of review in a social security appeal is whether the correct legal standards were
applied and whether the decision is supported by substantial evidence.”)
The factual findings at the administrative level are conclusive “if supported by
substantial evidence.” 42 U.S.C. § 405(g) (2012). “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); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). 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.

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). A court should meticulously review the entire record but should

2

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2015); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).

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neither re-weigh the evidence nor substitute its judgment for that of the Commissioner.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the Court reviews “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of
evidence in disability cases.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Court
may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. 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. §§ 404.1520(a)(4), 416.920(a)(4)
(2015). 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. §§ 404.1520(a)(4), 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 phases of step four and determines the claimant’s residual
functional capacity (“RFC”).
416.920(e).

See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e),

In phase two, the ALJ determines the physical and mental demands of the

claimant’s past relevant work, and in the third phase, compares the claimant’s RFC with the
functional requirements of his past relevant work to determine if the claimant is still capable of
performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f).
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If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R.
§§ 404.1520(f), 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).
IV.

THE ALJ’S DECISION
The ALJ issued her decision on November 16, 2015. See AR 9. At step one, she found

that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date
of January 6, 2012. AR 14. At step two, the ALJ found Plaintiff to suffer the following severe
impairments: (1) sciatica, (2) degenerative disc disease, (3) status post reconstructive surgery on
weight bearing joint, and (4) arthritis. AR 14. In contrast, the ALJ found Plaintiff’s sleep apnea,
depression, and PTSD to be non-severe. See AR 14-17.
To explain her assessment of Plaintiff’s mental impairments as non-severe, the ALJ
emphasized that Plaintiff reported in June 2013 that he was “not seeing a therapist, psychologist,
or psychiatrist,” nor “ha[d] he ever been hospitalized for psychiatric reasons.” AR 15 (citing AR
508). She further noted that “there is no evidence that [Plaintiff] has ever used medication to
manage his depression and PTSD symptoms,” and that “[d]espite this lack of medication,
[Plaintiff was] calm and appropriate in his mental disability evaluation, with a coherent thought
process and full orientation.” AR 15.

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Then, specifically as to Plaintiff’s depression, the ALJ observed that while Plaintiff
reported depression during his consultative psychological examination, he described it in terms
of being easily frustrated, lacking in motivation, and having difficulty sleeping. AR 15 (citing
AR 508). The ALJ contrasted this description with Plaintiff’s repeated denials of depression
during his VA visits, which the ALJ interpreted as an indication that his depression “may be
situational or brought on by psychological stressors.” AR 15 (citing AR 301, 343, 604, 631).
The ALJ made similar observations concerning Plaintiff’s PTSD, noting that at his
consultative examination, he reported PTSD “after being in combat situations in Panama,
Kuwait, and Iraq,” which allegedly made it difficult for him to drive, led him to avoid fireworks,
and produced “intrusive thoughts and memories.” AR 15 (citing AR 508). The ALJ also
recounted Plaintiff’s testimony that he felt panic upon driving due to a “fear of improvised
explosives along the roadside.” AR 15 (citing AR 39-40). The ALJ found these accounts
incongruent with Plaintiff’s self-reported activities of daily living, where Plaintiff related that he
was not only still capable of driving both cars and motorcycles, but also “actively involved with
a motorcycle group that regularly goes on rides and performs charity work.” AR 15 (citing AR
204, 214). Most importantly, the ALJ observed that “like his depression,” Plaintiff denied
having PTSD issues on numerous occasions to VA officials (citing 301, 330, 460, 631).
The ALJ then moved to step three, where she found that none of Plaintiff’s impairments,
alone or in combination, met or medically equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. AR 14-17. The ALJ began with Plaintiff’s physical
impairments, finding that Plaintiff’s sciatica and degenerative disc disease did not meet Listing
1.04 (disorders of the spine), as the “record [did] not contain evidence of nerve root compression,
spinal arachnoiditis, or lumbar spine stenosis resulting in pseudoclaudication.” AR 17. The ALJ

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also found that Plaintiff’s right knee replacement failed to satisfy Listing 1.02(A) (major
dysfunction of a joint) or Listing 1.03 (reconstructive surgery), as the record did not show that
Plaintiff “is unable to ambulate effectively as required by the [L]isting.” AR 17. The ALJ
recognized that Plaintiff “sometimes uses a cane,” but saw no evidence “to show he needs to use
an assistive device that limits the function of both upper extremities,” which would have been
required for Plaintiff to meet the definition of ineffective ambulation under Listing 1.00(B)(2).
AR 18.
The ALJ then turned to Plaintiff’s mental impairments and, despite having found them to
be non-severe, nevertheless considered their severity under “the four broad functional areas set
out in the disability regulations for evaluating mental disorders and in section 12.00C of the
Listing of Impairments.”

AR 53.

The ALJ determined the paragraph B criteria of these

Listings 3 were not met “[b]ecause [Plaintiff’s] medically determinable mental impairments cause
no more than ‘mild’ limitation in any of the first three functional areas and ‘no’ episodes of
decompensation which have been of extended duration in the fourth area.” AR 17.
First, the ALJ evaluated Plaintiff’s activities of daily living and found him to have only a
mild restriction. The ALJ looked to the reporting of Plaintiff’s wife, who stated that Plaintiff
could take care of the dog, perform light house work, and go shopping on a weekly basis for a
couple of hours.

AR 16.

Plaintiff’s wife also related that Plaintiff was “capable of

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Each listing under Listing 12.00 (Mental Disorders), except 12.05 and 12.09, consists of a statement describing the
disorder(s) addressed by the listing, paragraph A (a set of medical of medical findings) and paragraph B criteria (a
set of impairment-related functional limitations). 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, § 12.00 (2015).
“Paragraph B” criteria describe impairment-related functional limitations that are incompatible with the ability to do
any gainful activity. The functional limitations must be the result of the mental disorder described in the diagnostic
description. To meet either relevant Listings, a claimant must exhibit at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id. §§ 12.04(B), 12.06(B) (2015). The language of this regulation has been significantly altered since the time of the
ALJ’s decision, but the text above represents the regulation as it existed at the time of the ALJ’s decision.

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independently operating cars and motorcycles.” AR 16. The ALJ found this consistent with
other record evidence that revealed Plaintiff was “capable of adaptive activities such as cleaning,
shopping, taking public transportation, paying bills, maintaining a residence, caring appropriately
for [his] grooming and hygiene, cooking simple meals, using the telephone and using a post
office.” AR 16. Because Plaintiff could do so “without significant interruption from his alleged
mental conditions, the ALJ found Plaintiff “to have no more than mild restrictions in this area.”
AR 16.
Second, the ALJ found Plaintiff to have mild difficulties in social functioning. The ALJ
noted Plaintiff’s self-reporting that “he gets angry with people easily,” but contrasted this with
Plaintiff’s statements that “he is the president of the Freedom Riders motorcycle group and [ ]
meets with them at least once a month” and that he regularly “meets with his sister’s family or
his children for dinner.” AR 16. The ALJ further referenced evidence that Plaintiff “is capable
of getting along with others, such as [his] family members, friends, neighbors, grocery clerks,
landlords[,] [and] bus drivers.” AR 16.
Third, as to Plaintiff’s concentration, persistence, and pace, the ALJ again found Plaintiff
to suffer only mild difficulties. The ALJ cited Plaintiff’s statement that “he can only concentrate
for five minutes at a time, and sometimes does not finish what he starts.” AR 16. This
corresponded to Plaintiff’s clinical presentation, where he “had difficulty completing the serial
sevens test during his mental disability evaluation.” AR 16 (citing AR 510). But, “[d]espite his
concentration issues,” the ALJ observed that Plaintiff “enjoys solving crossword puzzles.” AR
16. More importantly, the ALJ found, based on her review of the evidence, that Plaintiff was
“capable of sustaining focused attention and concentration sufficiently long enough to permit the
timely and appropriate[ ] completion of tasks commonly found in work settings.” AR 16-17.

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Lastly, regarding episodes of decompensation, the ALJ found that Plaintiff “has
experienced no episodes of decompensation which have been of extended duration.” AR 17.
Because none of Plaintiff’s impairments satisfied an applicable Listing, the ALJ moved
on to the first phase of step four and assessed Plaintiff’s RFC. AR 17-20. “After careful
consideration of the entire record,” the ALJ determined that Plaintiff:
Has the residual functional capacity to perform light work as defined in 20
[C.F.R. §] 404.1567(b) except [Plaintiff] is only capable of standing and/or
walking for 4 hours in an 8-hour workday; he can sit for 6 hours in an 8 hour
workday; he can lift 20 pounds occasionally and 10 pounds frequently; he can
never climb ladders, ropes or scaffolds; he can occasionally climb ramps or stairs;
[Plaintiff] can frequently balance and stoop; he can occasionally crouch, kneel, or
crawl; the claimant must avoid concentrated exposure to extreme cold, wetness,
or humidity; he should avoid even moderate exposure to excessive noise.
AR 17-18.
To develop Plaintiff’s RFC, the ALJ relied on two separate grounds. First, the ALJ
rendered an adverse credibility finding against Plaintiff, opining that Plaintiff’s “statements
concerning the intensity, persistence[,] and limiting effects of [his] symptoms are not entirely
credible.” AR 18. The ALJ explained that Plaintiff’s “range of daily activities is inconsistent
with someone alleging total disability due to back pain.” AR 18. She cited to various activities,
including Plaintiff’s shopping, motorcycle riding, exercise routine, volunteer activities, and
lastly, to Plaintiff’s ability to push a lawnmower, which she found particularly “inconsistent with
[Plaintiff’s] allegations that he is severely limited due to the impairments to his back and knees.”
AR 19. To the ALJ, this “wide range of daily activities indicates that [Plaintiff] is physically
active and that his impairments are not as severe as alleged.” AR 19.
Additionally, the ALJ detailed the various methods Plaintiff used to “effective[ly]
control” his symptoms of back pain and knee pain through “a combination of braces, physical
therapy, and medication.” AR 19. She noted Plaintiff’s use of braces as set forth both in
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Plaintiff’s administrative testimony, where he testified that he used a back brace two to three
times a week to alleviate pain, and in his wife’s third-party function report, where she also
described his use of braces for his back and knees. AR 19 (citing AR 33-34, 198). The ALJ
further noted that Plaintiff “has undergone physical therapy after his knee surgery, and he
occasionally uses a cane to help to increase his mobility.” AR 19. Principally, however, the ALJ
relied upon Plaintiff’s VA records, which revealed multiple instances where Plaintiff reported to
the VA that his pain was well-controlled by medication. AR 19 (citing AR 335, 542, 599). VA
records also demonstrated that, throughout 2012 and 2013, despite reports of sciatic pain,
Plaintiff had “full extension, flexion, and a normal gait” as well as “no evidence of tenderness to
percussion along the lumbar spine.” AR 19 (citing AR 336, 537). These same records evinced a
notable reluctance to intervene surgically to treat Plaintiff’s spinal conditions, as he had already
achieved a fifty percent improvement in his spine-related pain with conservative treatment. AR
19 (citing AR 538). In the aggregate, the ALJ interpreted the medical reports “showing effective
control of [Plaintiff’s] symptoms through medication,” as indicating that Plaintiff’s
“[degenerative disc disease], sciatica, and status post knee replacement surgery are not as severe
as alleged.” AR 19.
The ALJ bolstered her adverse finding as to Plaintiff’s credibility by discounting the
third-party report provided by his wife. In her report of Plaintiff’s activities, Plaintiff’s wife
claimed that he had difficulty sleeping, could only walk half a mile, and was often agitated. AR
20. Moreover, she lamented that “she ha[d] watched her husband become a man who barely
leaves the house.” AR 20. The ALJ considered and ultimately dismissed her statements as being
“not consistent with the record as a whole.” AR 20. The ALJ opined that “[d]espite [Plaintiff’s
wife’s] statement that [Plaintiff] barely leaves his house, [Plaintiff] reports going out of the

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house on his own multiple times per week to shop or participate in volunteer activities.” AR 20.
Thus, the incongruity of her statements coupled with her inability to be considered a
“disinterested third party witness” led the ALJ to discount the information provided by Plaintiff’s
wife.
Along with Plaintiff’s adverse credibility finding, the ALJ also relied on the medical
opinions in the record to determine Plaintiff’s RFC. The ALJ began with the nonexamining
consultative physicians, and accorded their opinions “some” weight. AR 19-20. She recounted
that Dr. Nancy Armstrong, M.D., opined at the initial stage that Plaintiff was “capable of
performing light exertional work and that he can stand and/or walk for 4 hours in an 8-hour
workday; sit for 6 hours in an 8-hour workday; climb ramps, stairs, ladders, ropes, and scaffolds
occasionally; and crouch and crawl occasionally.” AR 19. On reconsideration, John Pataki,
M.D., found the same. AR 19. The ALJ accorded these opinions only “some weight,” as they
were “consistent with medical evidence showing that [Plaintiff’s] impairments are controlled
through medication” and Plaintiff’s activities of daily living, but she found only the minimal
restrictions on climbing of ladders, ropes, and scaffolds to be insufficient to address Plaintiff’s
physical impairments. AR 20.
The ALJ next evaluated the opinion of Plaintiff’s orthopedist, Dr. John Grasinger, M.D.,
and accorded the opinion great weight. The ALJ focused on Dr. Grasinger’s opinion that
Plaintiff could no longer “continue working as a police officer, that he should be limited to a
sedentary or light job, and that he will probably not improve to the point where he can continue
to be a police officer.” AR 20. She found the opinion convincing as it was “consistent with the
[Plaintiff’s] medical reports showing significant improvement through conservative treatment”
as well as his activities of daily living. AR 20. Furthermore, the ALJ specifically found Dr.

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Grasinger’s opinion that Plaintiff could not perform his past work as a police officer “consistent
with medical reports showing the limiting effects of his physical impairments.” AR 20.
Lastly, the ALJ evaluated the opinion of examining psychological consultant Amy
DeBernardi, Psy.D. AR 15-16. The ALJ cited approvingly to Dr. Bernardi’s finding that
Plaintiff “has PTSD and mild depression, secondary to chronic pain and physical limitations, but
is handling these issues fairly well.” AR 15. The ALJ also discussed the Global Assessment of
Functioning (“GAF”) 4 score of 65 that Dr. Bernardi had assigned to Plaintiff, but found it both
nonsevere and clinically insignificant.

AR 16.

Instead, the ALJ focused on three of Dr.

Bernardi’s findings. First, the ALJ recounted Dr. Bernardi’s opinion that “while [Plaintiff’s]
PTSD and depression are unlikely to have a significant impact on his ability to maintain
employment, he would likely have the most difficulty in environments that were loud or
chaotic.”

AR 15.

Second, she noted Dr. Bernardi’s finding that “while [Plaintiff] was

distractible, it appeared to be because of his chronic pain.” AR 15. Lastly, the ALJ highlighted
Dr. Bernardi’s finding that “[Plaintiff’s] stress tolerance skills were good and that he is capable
of managing his own financial issues without assistance.” AR 15. Based on these findings, the
ALJ assigned great weight to Dr. Bernardi’s opinion, as she found it to be “consistent with
medical evidence of [Plaintiff] denying depression and PTSD symptoms.” AR 15.
In the second phase of step four, the ALJ identified past relevant work as “law
enforcement,” DOT #375.263-014, a skilled, medium exertional position. AR 20. Then, at the

4

The Global Assessment of Functioning test is “widely used for scoring the severity of illness in psychiatry.” See
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2880316/#B14 (last visited May 18, 2018). A GAF score of 65
indicates “[s]ome mild symptoms (e.g. depressed mood or mild insomnia) [or] some difficulty in social,
occupational[,] or school functioning (e.g. occasional truancy, or theft within the household), but generally
functioning
well,
[and]
has
meaningful
interpersonal
relationships.”
See
https://msu.edu/course/sw/840/stocks/pack/axisv.pdf (last visited May 18, 2018).

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third and final phase of step four, the ALJ found that Plaintiff could not return to this line of past
relevant work, as “it is at the medium exertional level.” AR 21.
At step five, the ALJ relied on the testimony of the VE to determine what jobs, if any,
Plaintiff could still perform. The VE testified that an individual with Plaintiff’s RFC could
perform the jobs of routing clerk, DOT #222.687-022, and router, DOT #222.587-038. AR 21.
Based on that testimony, the ALJ concluded that “considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, [Plaintiff] is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” AR 22.
Accordingly, the ALJ found that Plaintiff had not been under a disability, as defined by the Act,
during the relevant time period and denied her claim. AR 22.
V.

ANALYSIS
Plaintiff’s Complaint asserts only one challenge, but the parties’ briefing and recent

Tenth Circuit precedent compel this Court beyond its four corners. On its face, Plaintiff’s
Complaint asserts no other basis for remand beyond that stated above: that the Appeals Council
erred by failing to properly evaluate the disability determination he received from the VA. See
Pl.’s Compl. 8-12; supra p. 3. Nevertheless, based on her reading of Vallejo v. Berryhill, 849,
F.3d 951 (10th Cir. 2017), the Commissioner discerns that Plaintiff is raising an additional
challenge to the substantial evidence underlying the ALJ’s decision writ large. See Def.’s Resp.
15-20, ECF No. 21. Moreover, the Commissioner extensively counters said challenge. See id.
Unsurprisingly, Plaintiff’s Reply bursts through this open door and expresses a heretofore
unarticulated second challenge to the substantial evidence supporting the ALJ’s decision. See
Pl.’s Reply 3-6, ECF No. 22.

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Ordinarily, the Court would not consider an argument propounded by Plaintiff for the
first time in his Reply. See, e.g., United States v. Redcorn, 528 F.3d 727, 738 n.4 (10th Cir.
2008) (citing Hanh Ho Tran v. Trustees of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir.
2004) (“Issues not raised in opening brief are deemed abandoned or waived.”) (citations
omitted)); Guidry v. Astrue, Civ. No. 08–1846, 2009 WL 4884282, at *5, n.8 (D. Colo. Dec. 10,
2009) (citing M. D. Mark, Inc. v. Kerr–McGee Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009))
(noting that “the general rule in this circuit is that a party waives issues and arguments raised for
the first time in a reply brief”). Accord Wheeler v. C.I.R., 521 F.3d 1289, 1291 (10th Cir. 2008)
(issues raised for the first time in a reply brief are generally deemed waived). Yet, based on the
Tenth Circuit’s holding in Vallejo, see infra pp. 17-18, the Court will also carry out its charge to
conduct a substantial evidence review of the ALJ’s decision in conjunction with Plaintiff’s VA
disability rating.

Ultimately, however, neither claim proves meritorious, and this Court

recommends that the presiding judge deny Plaintiff’s Motion and dismiss his Complaint.
A.

The Appeals Council Properly Considered Plaintiff’s VA Rating

In his original claim, Plaintiff contends that “[t]he Appeals Council failed to explain why
it did not find the VA’s determination that Thompson was unemployable persuasive and failed to
explain what, if any, weight was assigned to the VA decision.” Pl.’s Mot. 11. To support the
challenge, Plaintiff directs this Court to multiple sources, including the regulation governing the
introduction of evidence to the Appeals Council and various case citations, with the most
prominent being the Tenth Circuit case of Martinez v. Barnhart, 444 F.3d 1201 (10th Cir. 2006).
See Pl.’s Mot. 9-12; 20 C.F.R. § 404.970(b) (2016). By his reading of these sources, the VA’s
disability rating should be considered “highly probative and relevant to the disability
determination in this case,” and the Appeals Council’s failure to weigh and explain its

14

assessment of Plaintiff’s disability rating “creates a critical deficiency in the record that
constitutes error, and requires reversal and remand.” Pl.’s Mot. 12.
The Commissioner responds that Plaintiff’s argument is “foreclosed” by the Tenth
Circuit case of Vallejo v. Berryhill, 849 F.3d 951 (10th Cir. 2017). Def.’s Resp. 10-13. She
further argues that rather than bolstering his position, the Martinez case actually diminishes
Plaintiff’s position. See id. at 12. The Commissioner closes by urging this Court to “reject
Plaintiff’s argument as it is contrary to agency regulations, contradicted by Martinez and Vallejo,
and unsupported by the cases he cites.” Id. at 15.
1.

Relevant law

Pursuant to 20 C.F.R. § 404.970(b) (2016), “new evidence [submitted to the Appeals
Council] becomes a part of the administrative record to be considered when evaluating the
Secretary’s decision for substantial evidence.” Threet v. Barnhart, 353 F.3d 1185, 1191 (10th
Cir. 2003) (quoting O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)). The Appeals Council
is required to consider evidence submitted with a request for review “if the additional evidence is
(a) new, (b) material, and (c) related to the period on or before the date of the ALJ’s decision.”
Id. (quoting Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995)). If the evidence satisfies all three
criteria, the Appeals Council “shall consider the additional evidence” and “evaluate the entire
record.” 20 C.F.R. § 404.970(b). The Appeals Council will only grant review, however, “if it
finds that the [ALJ’s] action, findings, or conclusion is contrary to the weight of the evidence
currently of record.” Id.
SSA consideration of VA disability ratings is further governed by 20 C.F.R. § 404.1504
(2017). At the time of Plaintiff’s administrative claim and appeal, the regulation provided:
A decision by any nongovernmental agency or any other governmental agency
about whether you are disabled or blind is based on its rules and is not our
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decision about whether you are disabled or blind. We must make a disability or
blindness determination based on social security law. Therefore, a determination
made by another agency that you are disabled or blind is not binding on us.
20 C.F.R. § 404.1504 (2016). 5 Social Security Ruling (“SSR”) 06-03p explained the SSA’s pre2017 approach to 20 C.F.R. § 404.1504, and noted that adjudicators “are required to evaluate all
the evidence in the case record that may have a bearing on our determination or decision of
disability, including decisions by other governmental and nongovernmental agencies.” SSR 0603p, 2006 WL 2329939 at *6 (Aug. 9, 2006), rescinded Mar. 27, 2017. “Therefore,” SSR 0603p detailed, “evidence of a disability decision by another governmental or nongovernmental
agency cannot be ignored and must be considered.” Id.
2.

The Appeals Council Properly Applied Governing Regulations

Consequently, at the time of Plaintiff’s administrative claim and appeal, the ALJ and the
Appeals Council were required to consider Plaintiff’s VA disability rating. Here, as the only
administrative adjudicator presented with the evidence, the Appeals Council did so.

The

Appeals Council acknowledged that Plaintiff submitted his VA disability rating as additional
evidence and elected to make it part of the record. See AR 6. The Appeals Council also
communicated that it considered the reasons Plaintiff disagreed with the ALJ’s decision, along
with “the additional evidence listed on the enclosed Order,” which included the VA rating. AR
2; see AR 6. Ultimately, the Appeals Council determined that the information did “not provide a
basis” for changing the ALJ’s decision, and declined review. AR 1-2. Most important among
these steps for purposes of the instant analysis is that the Appeals Council (1) considered the
evidence, and (2) declined review.
5

The SSA fundamentally altered this regulation in 2017 to make clear that “in claims filed . . . on or after March
27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other
governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to
any benefits.’ 20 C.F.R. § 404.1504 (2017).

16

Plaintiff maintains that this process was insufficient. He argues instead that the Appeals
Council was required to go beyond these mandates by weighing and explaining its assessment of
Plaintiff’s VA rating, notwithstanding the Appeals Council’s decision to decline review. But in
doing so, Plaintiff disregards binding Tenth Circuit precedent.
In Martinez, the plaintiff argued that the Appeals Council failed to consider new
treatment notes that were submitted to it. See 444 F.3d at 1207-08. The Martinez court
disagreed, noting the Appeals Council’s statement that it considered the additional evidence
submitted to it, described the evidence in an attached order, and concluded that the evidence did
not provide a basis for changing the ALJ’s decision. Id. at 1207. The Court rebuffed the
plaintiff’s challenge that the Appeals Council should have specifically discussed the new
treatment notes because the plaintiff “point[ed] to nothing in the statutes or regulations that
would require such an analysis where new evidence is submitted and the Appeals Council denies
review.” Martinez, 444 F.3d at 1207-08.
In Vallejo, the Tenth Circuit revisited the issue of what findings the Appeals Council was
required to make when it declined review. See 849 F.3d at 951. There, the plaintiff submitted
new evidence to the Appeals Council, which it accepted and considered before denying review.
Id. at 955-56. The plaintiff argued that the Appeals Council erred in denying his request for
review without first expressly evaluating his treating source’s medical opinion. Id. at 954. The
district court accepted the plaintiff’s argument and held that the Appeals Council should have
evaluated the opinion like an ALJ by articulating how much weight, if any, it gave to the opinion
and why. Id. The Tenth Circuit, however, reversed and remanded the district court’s decision,
holding that the Appeals Council did not err, because the regulations do not require the Appeals

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Council to expressly analyze evidence when denying review of the ALJ’s decision. Id. at 955.
The Vallejo court reasoned:
We recognized in Martinez that an express analysis from the Appeals Council
would be helpful to judicial review. 444 F.3d at 1207–08. But, as we said there and reiterate here - “nothing in the statutes or regulations” requires the Appeals
Council to provide that analysis. Id. at 1208. Remanding the case to the Appeals
Council for further fact-finding when the Appeals Council did all it was required
to do under the regulations wasn’t an option for the district court. The district
court’s only option was to conduct a substantial-evidence review by assessing the
entire agency record, including Ratner’s never-before assessed opinion. See
O'Dell, 44 F.3d at 858–59 (noting that when claimant submits new evidence to
Appeals Council and Appeals Council accepts it, that evidence becomes part of
the record to be considered by court in performing substantial-evidence review).
Id. at 956 (quotation marks and citations in original).
Martinez and Vallejo eviscerate Plaintiff’s argument. Neither regulations nor precedent
required the Appeals Council to do anything more than consider Plaintiff’s VA disability rating.
See Martinez, 444 F.3d at 1207-08; Vallejo, 849 F.3d at 955-56. The Appeals Council did so,
and it declined review. Because it declined review, no express analysis was required, see
Vallejo, 849 F.3d at 956, and none was given.

Plaintiff’s claim is foreclosed by binding

precedent, and the Court recommends that this claim be denied.
B.

Substantial Evidence Supports the ALJ’s Decision

As mentioned above, Vallejo held that the district court was required, when the Appeals
Council declined review but accepted a treating physician’s opinion into evidence (thus making
it part of the record), to “conduct a substantial-evidence review by assessing the entire agency
record, including [the treating physician’s] never-before assessed opinion.”

Id.

Thus, the

Commissioner asserts, and the Court agrees, that the Court’s focus must now shift to examining
whether Plaintiff’s VA rating, considered alongside the evidence presented to the ALJ,
“undercut[s] the ALJ’s finding” that Plaintiff was not disabled. See Martinez, 444 F.3d at 1208.

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Furthermore, Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) requires the Court, in
weighing the VA rating in the first instance 6, to “consider and explain why [it] did not find it
persuasive.” Having reviewed the record, the Court neither finds the VA’s rating persuasive nor
finds that it undercuts the substantial evidence supporting the ALJ’s decision.
In its rating decision, the VA found that Plaintiff became unemployable under its laws
and regulations as of March 31, 2012, because he could not “secure or follow a substantially
gainful occupation” due to the combined effect of his right and left knee injuries, lumbar spine
issues, and PTSD. AR 673-74. The decision referenced four sources of evidence for this
finding: (1) self-generated applications for unemployment received from Plaintiff on August 6,
2013, and June 9, 2015; (2) a request for Plaintiff’s employment information received on May 6,
2014; (3) VA medical records from the Veterans Affairs Medical Center (“VAMC”) in
Albuquerque, New Mexico, from May 12, 2011, through November 6, 2015; and (4) VA
examination records from VAMC El Paso dated March 11, 2014, August 11, 2015, and
November 3, 2015. AR 674. For its rationale, the VA stated:
Although any one disability was not shown to cause an inability to work, the
combined effects of these conditions do not allow continued employment. VA
examinations note that your knees and back would not allow employment
requiring physical efforts, and information shows that you were required to retire
from employment as a police officer in January of 2012[ ] for this reason. PTSD
symptoms would further limit employment in other areas, due to problems with
sleep and anxiety.
AR 674. Finally, the decision encouraged Plaintiff “to apply for vocational rehabilitation” and
noted that the “VA’s Vocational Rehabilitation and Education program has helped many
veterans with disabilities obtain suitable and rewarding employment.” AR 674.
6

The Court does so notwithstanding the fact that the Appeals Council bore no such burden to explain why it did not
find the VA rating persuasive. See Vallejo v. Berryhill, 849 F.3d 951, 955-56 (10th Cir. 2017) (holding that nothing
in the statutes or regulations requires the Appeals Council to provide analysis of newly submitted evidence when it
declines review, thereby compelling the district court, upon judicial appeal, to conduct a substantial evidence review
by assessing the entire agency record, including the theretofore unassessed opinion).

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In contrast, the ALJ followed SSA’s five-step sequential evaluation and found Plaintiff
not disabled. See 20 C.F.R. § 404.1520 (2017) (describing the disability evaluation process). As
part of that evaluation (and as detailed above), the ALJ reviewed volumes of evidence. See
supra, pp. 5-12. Strikingly, the overwhelming majority of that evidence consisted of the exact
same VA records reviewed by the VA to craft its own disability determination. See AR 251-506,
513-671 (VA medical records from February 28, 2011, to August 6, 2015). These VA records
informed the ALJ’s evaluation of Plaintiff’s physical impairments. See AR 19 (citing AR 335,
336, 537, 538, 542, 599 (all VA records)). VA records similarly buttressed the ALJ’s assessment
of Plaintiff’s mental impairments. See AR 15 (citing AR 301, 343, 604, 631). However, in
addition to the VA records, the ALJ also reviewed expert evidence from both examining
consultants and nonexamining consultants, none of which recommended an RFC more restrictive
than that assigned by the ALJ. See supra, pp. 11-12. Thus, the ALJ drew upon a greater corpus
of evidence than the VA in determining Plaintiff’s RFC and determining him to be not disabled
under SSA regulations. The VA’s disability finding, which is based on less medical evidence
than the ALJ’s, and formulated under an administrative regime distinct from the SSA’s, does not
persuade the Court that Plaintiff would be disabled under SSA regulations.
Recognizing all of the above, the Court cannot now say that the VA’s finding of
unemployability, considered contemporaneously with the ALJ’s decision, somehow renders the
ALJ’s decision infirm. To the contrary, the Court finds ample evidence in the record to support
the conclusion that Plaintiff is not disabled under SSA regulations. See Langley, 373 F.3d at
1118. Moreover, nothing in the VA’s disability rating “so overwhelm[s]” the “other evidence in
the record” as to deprive the ALJ’s decision of support by the substantial evidence standard. See

20

id.; Hamlin, 365 F.3d at 1214. As a consequence, the Court recommends that this claim be
denied by the presiding judge.
VI.

CONCLUSION
In the instant cause, the undersigned finds that the ALJ’s decision was supported by

substantial evidence and the correct legal standards were applied.
IT IS THEREFORE RECOMMENDED that Plaintiff’s Motion to Reverse or Remand
[ECF Nos. 14, 15] be DENIED, the Commissioner’s final decision be AFFIRMED, and this
action be DISMISSED.
IT IS SO RECOMMENDED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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)(c). Any request for an extension must be filed in writing no later than seven days
from the date of this filing. 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.

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