Lucero Jr v. Social Security Administration

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough denying 15 Motion to Remand to Agency. (kfo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LAWRENCE L.,1
Plaintiff,
v.

Civ. No. 22-943 SCY

KILOLO KIJAKAZI,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff argues that the Commissioner committed error when denying his claim for
disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 401-434. Specifically,
Plaintiff asserts that the ALJ erred by finding the medical opinions on file unpersuasive and
entering a more restrictive RFC than those opinions suggested, without ordering a consultative
examination to obtain a medical opinion supporting that more restrictive RFC. The Court
disagrees; the ALJ has no duty to support the RFC with a precise corresponding medical opinion
and it is not error to temper an adverse medical opinion in the claimant’s favor. As a result, the
Court DENIES Plaintiff’s Motion To Reverse Or Remand Administrative Agency Decision and
affirms the decision below.2

1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all
proceedings and to enter an order of judgment. Docs. 6, 8, 9. The Court has jurisdiction to review
the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). The Court reserves

APPLICABLE LAW
A.

Disability Determination Process

An individual is considered disabled if 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) (pertaining to disability insurance
benefits); see also id. § 1382c(a)(3)(A) (pertaining to supplemental security income disability
benefits for adult individuals). The Social Security Commissioner has adopted the familiar fivestep sequential evaluation process (“SEP”) to determine whether a person satisfies the statutory
criteria as follows:
(1)

At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”3 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his medical condition.

(2)

At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment or
combination of impairments that is severe and meets the duration
requirement, he is not disabled.

(3)

At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.

(4)

If, however, the claimant’s impairments do not meet or equal in severity
one of the listings described in Appendix 1 of the regulations, the ALJ
must determine at step four whether the claimant can perform his “past

discussion of the background, procedural history, and medical records relevant to this appeal for
its analysis.
3

“Substantial work activity is work activity that involves doing significant physical or mental
activities.” 20 C.F.R. §§ 404.1572(a), 416.972(a). The claimant’s “[w]ork may be substantial
even if it is done on a part-time basis or if [he] doe[es] less, get[s] paid less, or ha[s] less
responsibility than when [he] worked before.” Id. “Gainful work activity is work activity that
[the claimant] do[es] for pay or profit.” Id. §§ 404.1572(b), 416.972(b).

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relevant work.” Answering this question involves three phases. Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all
of the relevant medical and other evidence and determines what is “the
most [the claimant] can still do despite [his physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the
claimant’s residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
416.945(a)(3). Second, the ALJ determines the physical and mental
demands of the claimant’s past work. Third, the ALJ determines whether,
given the claimant’s RFC, the claimant is capable of meeting those
demands. A claimant who is capable of returning to past relevant work is
not disabled.
(5)

If the claimant does not have the RFC to perform his past relevant work,
the Commissioner, at step five, must show that the claimant is able to
perform other work in the national economy, considering the claimant’s
RFC, age, education, and work experience. If the Commissioner is unable
to make that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is
deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
The claimant has the initial burden of establishing a disability in the first four steps of this
analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The burden shifts to the Commissioner
at step five to show that the claimant is capable of performing work in the national economy. Id.
A finding that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
801 (10th Cir. 1991).
B.

Standard of Review

The court must affirm the Commissioner’s denial of social security benefits unless (1) the
decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal
standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at
3

800-01. In making these determinations, the court neither reweighs the evidence nor substitutes
its judgment for that of the agency. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
“[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary
sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted).
“Substantial evidence . . . is ‘more than a mere scintilla.’” Id. (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). “It means—and means only—such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks
omitted).
A decision “is not based on substantial evidence if it is overwhelmed by other evidence in
the record,” Langley, 373 F.3d at 1118 (internal quotation marks omitted), or “constitutes mere
conclusion,” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision
must “provide this court with a sufficient basis to determine that appropriate legal principles
have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal
quotation marks omitted). Therefore, although an ALJ is not required to discuss every piece of
evidence, “[t]he record must demonstrate that the ALJ considered all of the evidence” and “a
minimal level of articulation of the ALJ’s assessment of the evidence is required in cases in
which considerable evidence is presented to counter the agency’s position.” Clifton v. Chater, 79
F.3d 1007, 1009-10 (10th Cir. 1996) (internal quotation marks omitted). But where the reviewing
court “can follow the adjudicator’s reasoning” in conducting its review, “and can determine that
correct legal standards have been applied, merely technical omissions in the ALJ’s reasoning do
not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The court
“should, indeed must, exercise common sense.” Id. “The more comprehensive the ALJ’s
explanation, the easier [the] task; but [the court] cannot insist on technical perfection.” Id.

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ANALYSIS
Plaintiff argues that the ALJ should have ordered a physical consultative examination
rather than relying on her lay assessment of Plaintiff’s physical functioning4 for the RFC. Doc.
15-1 at 7. Plaintiff’s argument is unpersuasive. Under the relevant standard, Plaintiff must show
the record was insufficient to make a disability finding in order to establish that a consultative
examination was warranted. Plaintiff does not do so; the record did not become insufficient
merely because the ALJ found the physical medical opinions unpersuasive. The ALJ based the
RFC on chronologically pertinent medical evidence contained in Plaintiff’s medical records, and
Plaintiff does not attempt to argue that this medical evidence was insufficient for a finding of
disability.
A.

ALJ opinion

The ALJ assigned a physical RFC for:
sedentary work as defined in 20 CFR 416.967(a) except he could occasionally
crouch, crawl, kneel, stoop, bend, climb ramps or stairs, and balance as defined in
the Selected Characteristics of Occupations (SCO); but he should avoid
workplace hazards such as dangerous, moving machinery and unprotected heights
so claimant is not able to climb ladders/ropes/scaffolding.
AR 17.
In the narrative portion of her opinion, the ALJ examined Plaintiff’s testimony at the
hearing, Plaintiff’s function reports, and medical records and test results from March 2019 to
January 2020. AR 18-20. The ALJ then evaluated the physical medical opinions of record as
follows:
The record also contains Disability Determination Evaluations (DDEs) at the
initial stage of adjudication and at reconsideration. At both stages of adjudication,
the medical and psychological consultants determined the claimant was not
disabled because he retained the residual functional capacity to perform work at
4

Plaintiff does not raise any arguments with respect to the mental RFC.

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the light exertional level with occasional kneeling, crouching, crawling, and
climbing ramps, stairs, ladders, ropes, or scaffolds. . . . While the State agency
consultants reached the same conclusion regarding disability, the undersigned
finds these opinions unpersuasive because evidence received at the hearing level
reveals the claimant is more limited than determined by the consultants.
AR 25. Specifically, the ALJ assigned an RFC for sedentary, rather than light, work. AR 17.
B.

Consultative Examinations

Under the Social Security regulations, a consultative examination may be ordered “to try
to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to
allow us to make a determination or decision on your claim.” 20 C.F.R. § 404.1519a(b).
Some examples of when we might purchase a consultative examination to secure
needed medical evidence, such as clinical findings, laboratory tests, a diagnosis,
or prognosis, include but are not limited to:
(1) The additional evidence needed is not contained in the records of your
medical sources;
(2) The evidence that may have been available from your treating or other
medical sources cannot be obtained for reasons beyond your control, such
as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is not
available from your treating or other medical sources; or
(4) There is an indication of a change in your condition that is likely to
affect your ability to work, but the current severity of your impairment is
not established.
Id.
The Tenth Circuit has examined the previous, but substantially similar, version of this
regulation and held that “there was no need to further develop the record [where] sufficient
information existed for the ALJ to make her disability determination.” Cowan v. Astrue, 552
F.3d 1182, 1187 (10th Cir. 2008). In Cowan, sufficient evidence existed to make a disability
determination because

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There was record evidence regarding [claimant]’s daily activities and physical
abilities; there was Exhibit 9F, the PRT form in which the medical consultant had
found that [claimant]’s mental impairment had resulted in only a mild restriction
of activities of daily living, mild difficulties in maintaining social functioning,
mild difficulties in maintaining concentration, persistence, or pace, and no
repeated episodes of decompensation; and there was no evidence, medical or
otherwise, suggesting that his mental impairment had any greater effect on [the
claimant]’s ability to work.
Id.
Plaintiff does not address the relevant standard; that is, Plaintiff does not analyze the
applicable regulation or attempt to show that the record evidence was insufficient to make a
disability determination in this case. Instead, Plaintiff argues that there as were only two medical
opinions related to Plaintiff’s physical functioning and the ALJ found neither persuasive. The
rejection of these opinions, Plaintiff asserts, “left the ALJ without any informed medical opinion
as to Plaintiff’s functional limitations.” Doc. 15-1 at 9. But as described above, the ALJ relied on
evidence other than the medical opinions. That is, the ALJ based her physical RFC assessment
on evidence of record including Plaintiff’s testimony at the hearing, Plaintiff’s function reports,
and medical records and test results from March 2019 to January 2020. AR 18-20. Plaintiff does
not challenge the sufficiency of this evidence.
Finally, the Tenth Circuit has held that when a claimant is represented by counsel at the
administrative hearing, “the ALJ may ordinarily require counsel to identify the issue or issues
requiring further development.” Cowan, 552 F.3d at 1188. The Tenth Circuit in Cowen affirmed
the ALJ because “there was no request from [the claimant]’s counsel for any other existing
medical records to be obtained, for a consultative mental examination to be performed, or for any
other development of the record to be undertaken.” Id. Here, the Commissioner points out that
Plaintiff was represented during the hearing stage and his attorney did not request a consultative
examination. Doc. 20 at 5. Plaintiff does not refute this as a factual matter, but argues that

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“administrative disability hearings are ‘nonadversarial and the ALJ has a duty to ensure that an
adequate record is developed during the disability hearing consistent with the issues raised.’”
Doc. 21 at 2 (quoting Garcia v. Saul, No. 20cv64 SMV, 2021 WL 1215788, at *3 (D.N.M. Mar.
31, 2021)). Although this is a true statement of law, as discussed above, the ALJ’s duty to
develop an adequate record does not extend to ordering a consultative examination when the
record is already sufficient to evaluate disability and when the claimant’s attorney did not request
a consultative examination.
C.

No requirement to match a medical opinion

Plaintiff is also incorrect that an “informed medical opinion” matching the RFC is a
requirement for making a disability determination. The Tenth Circuit has squarely rejected the
argument that “the components of an RFC assessment lack substantial evidentiary support unless
they line up with an expert medical opinion.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir.
2012).
In Chapo, “the physical RFC . . . findings deviate from the one medical opinion given
weight by the ALJ” and with respect to “the mental RFC, . . . the only medical opinion was given
virtually no weight.” Id. Nonetheless, the Tenth Circuit found no error in the RFC assessment:
[T]here is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional capacity in
question. The ALJ, not a physician, is charged with determining a claimant’s RFC
from the medical record. We have thus rejected the argument that there must be
specific, affirmative, medical evidence on the record as to each requirement of an
exertional work level before an ALJ can determine RFC within that category.
Id. at 1288-89 (cleaned up) (citing Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004);
Wall v. Astrue, 561 F.3d 1048, 1068-69 (10th Cir. 2009) (upholding ALJ’s findings on mental
impairment where record did not contain any treating or examining medical opinions as to
allegedly disabling pain disorder); and Bernal v. Bowen, 851 F.2d 297, 302-03 (10th Cir. 1988)

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(holding ALJ properly made mental RFC findings without expert medical assistance)). In other
words, the evidence does not become “inconclusive” or “insufficient” to evaluate disability and
thus require a consultative examination, merely because the ALJ does not support the RFC with
a medical opinion.
As support for his argument, Plaintiff relies on Hawkins v. Chater, 113 F.3d 1162 (10th
Cir. 1997), and a line of district court cases applying Hawkins. Doc. 15-1 at 7-8. In Hawkins, the
ALJ found a hypertension/heart-condition impairment to be non-severe without ordering a
consultative examination on the topic. Id. at 1166. The Tenth Circuit held that was error because
the court “cannot say on the basis of this record whether [the hypertension] impairment is severe
or not severe without more medical information.” Id. at 1169-70. This holding is inapplicable,
however, in cases, such as the present case, where a plaintiff fails to demonstrate the existing
medical evidence was insufficient to make an RFC assessment. Moreover, Plaintiff does not
point to any impairment he thinks the ALJ should have found severe but did not.5
Plaintiff also contends that cases from this District have held that an RFC must be
supported by a corresponding medical source assessment. Doc. 15-1 at 13 (characterizing
Quintana v. Astrue, No. 09cv075, 2009 WL 10706693, at *4 (D.N.M. Dec. 28, 2009) as
“remanding where the ALJ could not point to any evidence in support of his RFC assessment
5

Plaintiff implies that Hawkins and its progeny hold that the mere finding of a severe physical
impairment is what triggers the ALJ’s duty to order a consultative examination. Doc. 15-1 at 8
(“In this case, the ALJ found Plaintiff’s physical impairments to be severe and resulting in
functional limitations, so Plaintiff has unquestionably met his burden of proof that her
impairments are severe and impact her disability determination. The ALJ therefore, should have
ordered the physical consultative examination.” (citing Olguin v. Berryhill, No. 18cv370, 2019
WL 955281 (D.N.M. Feb. 27, 2019); Calderwood v. Barnhart, No. 02cv890, 2003 WL
27384839, at *6 (D.N.M. Aug. 8, 2003); Olquin v. Berryhill, 2019 WL 955281 (D.N.M. Feb. 27,
2019); and Martinez v. Colvin, No. 15cv545, 2016 WL 8231144, at *7 (D.N.M. Sept. 1, 2016)).
However, none of the cited cases stand for the proposition Plaintiff seeks the Court to adopt.
Indeed, adopting such a proposition would be contrary to the Commissioner’s regulations.

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because no medical source assessed Plaintiff’s functional capacity”). That is not quite what
Quintana said. In Quintana, “the ALJ determined that, in the absence of substance abuse,
Plaintiff would retain the mental RFC set forth above.” 2009 WL 10706693, at *4. However,
there was no evidence in that case regarding that claimant’s functioning in the absence of
substance abuse: neither a “medical source opinion which assesses or predicts Plaintiff’s mental
RFC in the absence of substance abuse” nor “evidence relating to a period of time when Plaintiff
was not abusing drugs or alcohol.” Id. Here, a hypothetical assessment of functioning in the
absence of substance abuse is not at issue. Instead, the ALJ evaluated and based the RFC on
chronologically relevant medical evidence and other evidence, such as function reports,
regarding Plaintiff’s physical functioning. AR 18-20. And again, Plaintiff makes no argument
that the ALJ’s determination of disability based on this evidence lacks sufficient evidence.
More importantly, Chapo clarified that it is not error for an ALJ to “temper” a medical
opinion “in the claimant’s favor” by assigning a more restrictive RFC than the opinion suggests.
682 F.3d at 1288 (emphasis in original). As the Tenth Circuit explained, “we are aware of no
controlling authority holding that the full adverse force of a medical opinion cannot be
moderated favorably in this way unless the ALJ provides an explanation for extending the
claimant such a benefit.” Id. “[I]f a medical opinion adverse to the claimant has properly been
given substantial weight [or evaluated for persuasiveness6], the ALJ does not commit reversible
error by electing to temper its extremes for the claimant’s benefit.” Id.

6

Chapo was decided when the applicable procedure involved assigning “weight” to a medical
opinion. The regulations have since been amended to instruct ALJs to evaluate the
“persuasiveness” of an opinion instead. Nonetheless, the Court finds that Chapo’s reasoning
remains applicable under the amended regulations.

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This is exactly what the ALJ did in this case. The medical opinions in the record are less
favorable to Plaintiff (the state-agency consultants concluded Plaintiff can perform light work)
than the ALJ’s RFC (sedentary work). And Plaintiff certainly does not contend the ALJ should
have agreed that Plaintiff can perform light work. Having tempered the physical medical
opinions in Plaintiff’s favor, the ALJ committed no error Plaintiff can successfully challenge on
appeal.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion To Reverse Or Remand Administrative
Agency Decision is DENIED.
_____________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge
Presiding by Consent

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