Garcia v. Social Security Administration
MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 19 Plaintiff's Motion to Remand (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 16-cv-1020 SMV
NANCY A. BERRYHILL,1
Acting Commissioner of the Social Security,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse or Remand
Administrative Agency Decision [Doc. 19] and her Memorandum Brief in Support [Doc. 20],
filed on August 16, 2017. The Commissioner responded on October 18, 2017. [Doc. 27].
Plaintiff replied on November 21, 2017. [Doc. 28]. The parties have consented to my entering
final judgment in this case. [Doc. 25]. Having meticulously reviewed the entire record and
being fully advised in the premises, the Court finds that Plaintiff fails to meet her burden as the
movant before this Court to show that the Administrative Law Judge (“ALJ”) did not apply the
correct legal standards, or that his decision was not supported by substantial evidence.
Accordingly, the Motion will be denied and the Commissioner’s final decision affirmed.
Standard of Review
In reviewing a decision by the Commissioner’s to terminate benefits, courts must decide
whether substantial evidence supports the decision.2 Hayden v. Barnhart, 374 F.3d 986, 988
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
(10th Cir. 2004). “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). The decision “is not based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of evidence supporting it.” Id. While a court
may not reweigh the evidence or try the issues de novo, its examination of the record as a whole
must include “anything that may undercut or detract from the [Commissioner]’s findings in order
to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262
(10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent [the] findings from being supported by substantial evidence.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir.
2004)). Courts must meticulously review the entire record but may neither reweigh the evidence
nor substitute their judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067,
1070 (10th Cir. 2007).
In addition, when terminating benefits, the Commissioner’s “failure to apply correct legal
standards, or to show us that she has done so, are also grounds for reversal.” Hayden, 374 F.3d
at 988. Thus, reviewing courts must be satisfied that the Commissioner applied the correct legal
standards in deciding to terminate benefits. Id.
Applicable Law and Sequential Evaluation Process
This case involves the termination of benefits. Plaintiff was found to be disabled in 2010.
However, in 2012, Defendant determined that Plaintiff was no longer disabled and terminated
A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, 20 C.F.R. § 416.1481. This case fits the general framework, and therefore, the Court reviews the ALJ’s
decision as the Commissioner’s final decision.
A seven-step sequential evaluation process is used in reviewing a termination of
supplemental security income (“SSI”) benefits.3
If the Commissioner meets her burden of
establishing that the claimant’s medical condition has improved, and that the improvement is
related to the claimant’s ability to work, the Commissioner must then demonstrate that the
claimant is currently able to engage in substantial gainful activity. Hayden, 374 F.3d at 988.
The burden of proof is on the Commissioner in a termination-of-benefits review. Id. at 991;
Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994). The Honorable Sam A. Crow, Senior
United States District Judge for the District of Kansas, summarizes the seven-step sequential
evaluation process as follows:
(1) Does the claimant have an impairment or combination of
impairments which meets or equals the severity of a listed
impairment? (If yes, the claimant is still disabled.) (2) If not, has
there been medical improvement? If there has been medical
improvement, as shown by a decrease in medical severity, see
step 3. If there has been no decrease in medical severity, there has
been no medical improvement (see step 4). (3) If there has been
medical improvement, the agency must determine whether it is
related to the claimant’s ability to work (whether there has been an
increase in the residual functional capacity (RFC) based on the
impairment that was present at the time of the most favorable
medical determination). If medical improvement is not related to
the claimant’s ability to work, see step 4. If medical improvement
is related to claimant’s ability to work, see step 5. (4) If no
medical improvement was found at step 2, or that the medical
improvement was found at step 3 not to be related to claimant’s
ability to work, the agency considers a number of exceptions; if
none of them applies, claimant’s disability will be found to
Although the instant case involves only a claim for SSI, many of the relevant precedents involve claims for social
security disability insurance benefits (“DIB”). The medical improvement standard for SSI is virtually identical to
that for DIB, compare 42 U.S.C. § 1382c(a)(4), with id. § 423(f), as are the regulations defining the standard,
compare 20 C.F.R. § 416.994(b)(1)(i), with id. § 404.1594(b)(1). Likewise, the steps to be followed in determining
whether a claimant’s disability continues (or has ceased) are nearly identical. Compare id. § 416.994(b)(5), with id.
§ 404.1594(f); see Social Security Program Operations Manual System DI § 28010.015(A)(1)(a) (observing that the
“wording concerning MI [medical improvement]” in §§ 404.1594 and 416.994 is “slightly different, but the
substance and intent is the same”).
(5) The agency will next determine whether all of the
claimant’s current impairments in combination are severe. If
claimant has no severe impairments, claimant will no longer be
(6) If claimant’s impairments are severe, the agency will
assess the claimant’s current ability to do substantial gainful
activity. The agency will assess the claimant's RFC and consider
whether the claimant can perform past work. If claimant can
perform past work, claimant will no longer be considered disabled.
(7) If claimant cannot perform past work, the agency will
consider, given claimant’s RFC, whether claimant can perform
other work in the national economy.
Adams v. Colvin, No. 15-1074-SAC, 2016 U.S. Dist. LEXIS 79508, *5–6 (D. Kan. June 17,
2016) (unpublished) (emphases added) (citing 20 C.F.R. § 416.994(b)(5)).
To apply the medical improvement test, the ALJ must first compare the medical severity
of the current impairment(s) to the severity of the impairment(s) which existed at the time of the
most favorable medical decision finding the claimant disabled. Then, in order to determine
whether the medical improvement is related to ability to work, the ALJ must reassess a
claimant’s residual functional capacity (“RFC”) based on the current severity of the
impairment(s) which was present at the claimant’s last favorable medical decision. The ALJ
must then compare the new RFC with the RFC before the putative medical improvements. The
ALJ may find medical improvement related to an ability to work only if an increase in the
current RFC is based on objective medical evidence. Shepherd v. Apfel, 184 F.3d 1196, 1201
(10th Cir. 1999).
In a decision dated September 12, 2010, Plaintiff was found to be disabled as of June 1,
1995, and she was awarded SSI benefits. Tr. 27. As of July 20, 2012, the agency determined
that Plaintiff was no longer disabled. Id. Plaintiff appealed, and ALJ Barry O’Melinn held a
hearing on November 4, 2014, in Albuquerque, New Mexico. Tr. 27, 50–72. Plaintiff and her
attorney appeared via video conference from Roswell, New Mexico. Tr. 27, 52. The ALJ heard
testimony from Plaintiff and an impartial vocational expert (“VE”), Judith Beard. Tr. 27, 50–72.
The ALJ issued his unfavorable decision on December 9, 2014. Tr. 38. He found that
the most recent favorable medical decision of disability, i.e., the “comparison point decision”
(“CPD”), was the decision dated September 12, 2010. Tr. 28. He found that, at the time of the
CPD, Plaintiff had the following medically determinable impairments: developmental delays
(motor, communication) and cerebral palsy (with right hemiplegia), which met Listing4 112.02
(neurocognitive disorders). Tr. 28–29.
The ALJ found that, as of July 20, 2012, Plaintiff had the following severe medically
determinable impairments: cerebral palsy, learning disability, anxiety, and depression. Tr. 29.
However, the ALJ found that as of July 20, 2012, none of Plaintiff’s impairments, alone or in
combination, met or medically equaled a Listing. Tr. 29–30.
He found that Plaintiff had
experienced medical improvement as of July 20, 2012, and that her medical improvement was
related to her ability to work. Tr. 30–32.
The ALJ found that, as of July 20, 2012, Plaintiff had the following RFC:
[Plaintiff has the RFC] to perform sedentary work as defined in 20
[C.F.R. §] 416.967(a) except she is able to perform work that
involves no more than occasional balancing, stooping, kneeling,
crouching, crawling, or climbing of ramps/stairs; no climbing of
ladders, ropes, or scaffolds; and no concentrated exposure to
operational control of moving machinery and unprotected heights,
or hazardous machinery. Additionally, [Plaintiff] is able to
understand, carry out, and remember simple instructions and make
commensurate work related decisions, respond appropriately to
supervision, coworkers and work situations, deal with routine
changes in work setting, maintain concentration persistence and
20 C.F.R. pt. 404, subpt. P, app. 1.
pace for up to and including 2 hours at a time with normal breaks
throughout the work day.
Tr. 33. The ALJ found that Plaintiff had no past relevant work. Tr. 36. He then went on to find
that, based on her age, education, work experience, RFC, and the testimony of the VE, Plaintiff
could perform work that exists in significant numbers in the national economy. Tr. 36–37.
Specifically, the ALJ found that Plaintiff could perform the demands of three representative jobs:
jewelry repairer, semiconductor loader, and touch-up screener. Tr. 37. Therefore, he found
Plaintiff was no longer disabled. Id. Plaintiff requested review from the Appeals Council, but
that request was denied on May 16, 2016. Tr. 5. With an extension of time from the Appeals
Council dated August 12, 2016, Tr. 1, Plaintiff timely filed the instant action on September 13,
2016. [Doc. 1].
The arguments and authorities presented by Plaintiff do not persuade the Court that
remand is warranted. Plaintiff’s arguments all hinge on special education testing performed at
Plaintiff’s high school in October of 2010. Tr. 355–62. The time period relevant to this case
begins on July 20, 2012, nearly two years later. The ALJ was not required to adopt the October
2010 report, nor does Plaintiff argue that he was. Plaintiff’s repeated references to the report fail
to show that the ALJ’s decision is not supported by substantial evidence or that the ALJ applied
an incorrect legal standard. The Commissioner’s final decision should be affirmed.
Plaintiff quotes extensively from a “Re-evaluation Diagnostic Report” from Lovington
Municipal School District, dated October 6, 2010.5 [Doc. 20] at 4–7. Plaintiff’s arguments for
Plaintiff’s extensive quotations were quite difficult to identify because they were not reproduced in any discernable
pattern, nor did Plaintiff provide accurate citations. See [Doc. 20] at 4–7. Identifying these quotations as quotations
(as opposed to argument) and then identifying their source (i.e., the report found at Tr. 355–62) was unnecessarily
tedious and time-consuming. It is strongly advisable that counsel adhere to Rule 5 of The Bluebook in the future.
remand all depend on this report, which she refers to as the “Special Education testing.”
[Doc. 20] at 8. First, she argues that the “Special Education testing demonstrates that [she]
cannot perform the mental requirements of the three jobs [identified as representative of the other
work she can perform, which exists in significant numbers in the national economy.]” Id. at 8.
She then goes on to quote extensively from unidentified sources (presumably the Selected
Characteristics of Occupations and the Dictionary of Occupational Titles) in describing the
demands of the three jobs. Id. at 8–10. She concludes that:
It is obvious, that as nice and cooperative as [Plaintiff] has been in
school, she does not have the intellectual ability to perform the
jobs as identified by the Vocational Expert and as found by the
ALJ. It is indeed unfortunate that in our high tech, post-industrial
society a person with the developmental impairments of [Plaintiff]
is limited to a sheltered workshop type job environment with
[Doc. 20] at 10. Although Plaintiff does not explain herself, the Court infers that Plaintiff argues
she cannot perform the demands of the three jobs as evidenced by the October 2010 report,
Next, Plaintiff argues that “[t]he Purpose clause of [Social Security Ruling] 85-15
resoundingly explains the reasons why [Plaintiff] remains disabled and the ALJ’s decision and
findings are not supported by and contrary to the substantial evidence in the hearing record.”
[Doc. 20] at 10. She then quotes from Social Security Ruling (“SSR”) 85-15. Id. at 10–11.
However, she never gets around to explaining how SSR 85-15 supports her position. She fails to
discuss how the quoted language applies to this case. As best the Court can tell, without
anything more from Plaintiff, she seems to suggest that the ALJ should have adopted the October
2010 report and incorporated it in his RFC assessment. And if he had adopted the October 2010
report, he would have found a more restrictive RFC than the one in his decision. See [Doc. 20]
Finally, Plaintiff complains that the hypothetical presented to the VE did not include all
of the limitations form the October 2010 report. [Doc. 20] at 11–12. “[Hackett v. Barnhart, 395
F.3d 1168 (10th Cir. 2005)] is directly on point, in that the trailer requirements for the jobs
identified by the VE directly conflict with Special Education objective test[ing.]” Id. at 13.
Plaintiffs’ arguments all fail for the same reasons. The ALJ was not required to adopt the
2010 report—nor does Plaintiff argue that he was. See [Doc. 20]. The 2010 report does not
overwhelm the substantial evidence of record supporting the ALJ’s RFC assessment.
Langley, 373 F.3d at 1118 (holding that 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”). The RFC assessment found by the ALJ is supported by Dr. Ponce’s report dated
June 4, 2012.6 Tr. 31–32 (ALJ’s decision, discussing and explicitly following Dr. Ponce’s
report), Tr. 404–407 (Dr. Ponce’s report). The ALJ discussed the other medical opinions on
Plaintiff’s mental functional capacity, explaining what weight he accorded each opinion and
In her Reply, Plaintiff argues, for the first time, that the RFC assessment is not consistent with Dr. Ponce’s opinion.
[Doc. 28] at 4–5. Specifically, Plaintiff argues that the ALJ “never addresses the limitations of ‘likely to have
significant difficulty understanding complex instructions’ and limits of ‘persisting at tasks of basic work[.]’” Id. at 4
(quoting Tr. 406). However, Dr. Ponce’s finding that Plaintiff was “likely to have significant difficulty
understanding complex instructions,” Tr. 406 (emphasis added), is entirely consistent with the RFC’s mental
limitations, to wit: “understand, carry out, and remember simple instructions and make commensurate work related
decisions, respond appropriately to supervision, coworkers and work situations, deal with routine changes in work
setting, maintain concentration persistence and pace for up to and including 2 hours at a time with normal breaks
throughout the work day.” Tr. 33 (emphasis added). Moreover, Plaintiff is incorrect that Dr. Ponce assessed any
limits in the ability to persist at tasks of basic work. Instead, she said, “[Plaintiff] would not appear to have
problems persisting at tasks of basic work due to intellectual difficulties.” Tr. 406 (emphasis added). Plaintiff fails
to show that the RFC assessment found by the ALJ is not consistent with Dr. Ponce’s opinion.
why. Tr. 34–35. Plaintiff does not challenge the ALJ’s evaluation of these opinions.7 See
Plaintiff fails to show that ALJ’s findings are not supported by substantial evidence. She
also fails to show that the ALJ failed to apply the correct legal standards. Accordingly, remand
is not appropriate.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse or Remand Administrative Agency Decision [Doc. 19] is DENIED. The
Commissioner’s final decision is affirmed.
IT IS SO ORDERED.
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent
To the extent Plaintiff raises any other arguments in her Reply for the first time, they are waived. See Hamilton v.
Sec’y of Health & Human Servs., 961 F.2d 1495, 1501 (10th Cir. 1992) (district court acts as a first-tier appellate
court); Berna v. Chater, 101 F.3d 631, 632–33 (10th Cir. 1996) (recognizing “that waiver principles developed in
other litigation contexts are equally applicable to social security cases”); Kruse v. Astrue, 436 Fed. App’x 879, 885
(10th Cir. 2011) (“[a]rguments presented for the first time in a reply brief are waived”) (citing State Farm Fire &
Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)).
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