Clendenin v. Social Security Administration
MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 21 Plaintiff's Motion to Remand to Agency (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 20-cv-0112 SMV
Commissioner of the Social Security Administration,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Claimant’s Motion to Reverse the Administrative
Law Judge (ALJ) Unfavorable Decision Dated March 15, 2019 or Alternatively to Remand the
Case Back to the Appeals Council [Doc. 21] and the Memorandum in Support [Doc. 22]
(collectively, “Motion”), both filed on September 1, 2020. The Commissioner responded on
November 30, 2020. [Doc. 26]. Plaintiff replied on December 14, 2020. [Doc. 27]. The parties
have consented to my entering final judgment in this case. [Doc. 12]. Before this Court, Plaintiff
bears the burden of showing either that the Administrative Law Judge did not apply the correct
legal standards or that his findings were not supported by substantial evidence.
meticulously reviewed the entire record and being fully advised in the premises, I find that Plaintiff
fails to meet that burden. Accordingly, the Motion will be denied, and the Commissioner’s final
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision1 is supported by substantial evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
the Commissioner’s findings and the correct legal standards were applied, the Commissioner’s
decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118
(10th Cir. 2004). Courts must meticulously review the entire record but may neither reweigh the
evidence nor substitute their judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. The decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Id. While a court may not 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. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, 20 C.F.R. § 404.981. This case fits the general framework, and therefore, the Court reviews the ALJ’s
decision as the Commissioner’s final decision.
“The failure to apply the correct legal standard or to provide this court with a sufficient
basis to determine that appropriate legal principles have been followed is grounds for reversal.”
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).
Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that he is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.
When considering a disability application, the Commissioner is required to use a five step
sequential evaluation process (“SEP”). 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,
140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) he is not
engaged in “substantial gainful activity”; and (2) he has a “severe medically determinable . . .
impairment . . . or a combination of impairments” that has lasted or is expected to last for at least
one year; and (3) his impairment(s) either meet or equal one of the Listings2 of presumptively
disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R.
§ 404.1520(a)(4)(i–iv); Grogan, 399 F.3d at 1261. If he cannot show that his impairment meets
or equals a Listing, but he proves that he is unable to perform his “past relevant work,” the burden
of proof then shifts to the Commissioner, at step five, to show that the claimant is able to perform
20 C.F.R. pt. 404, subpt. P, app. 1.
other work in the national economy, considering his residual functional capacity (“RFC”), age,
education, and work experience. Grogan, 399 F.3d at 1261.
Plaintiff applied for a period of disability and disability insurance benefits on
May 22, 2017. Tr. 15. He alleged a disability-onset date of May 1, 2014. Id. His claim was
denied initially and on reconsideration. Id. Administrative Law Judge (“ALJ”) Michael Mannes
held a hearing on February 4, 2019, in McAlester, Oklahoma. Tr. 15, 35. Plaintiff appeared by
videoconference from Las Cruces, New Mexico with his attorney. Tr. 15, 35. The ALJ heard
testimony from Plaintiff and an impartial vocational expert (“VE”), Melissa Brassfield, who
appeared by telephone. Tr. 35.
The ALJ issued his unfavorable decision on March 15, 2019. Tr. 26. He found that
Plaintiff met the insured status requirements through December 31, 20219. Tr. 17. At step one,
he found that Plaintiff had not engaged in substantial gainful activity since May 1, 2014, the alleged
onset date. Id. At step two, the ALJ found that Plaintiff suffered from the following severe
impairments: dysfunction of major joints, depression, bipolar, anxiety, obsessive-compulsive
disorder, and somatic symptom disorder. Id. The ALJ further found that Plaintiff’s hearing loss
and migraine headaches were not severe. Tr. 17–18. At step three, the ALJ determined that none
of Plaintiff’s impairments, alone or in combination, met or medically equaled a Listing. Tr. 18–19.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ went on to
assess Plaintiff’s RFC. Tr. 20–24. The ALJ found that Plaintiff had:
the [RFC] to perform to perform light work as defined in 20 [C.F.R. §] 404.1567(b)
except occasionally climbing ramps or stairs; never climbing ladders, ropes or
scaffolds; frequently balancing; occasionally stooping; kneeling, crouching or
crawling; able to understand, remember and carryout [sic] simple instructions with
routine supervision; occasional interaction with supervisors and co-workers; no
interaction with the general public; must alternate sitting and standing every 20 to
30 minutes throughout the workday in order to change position for a brief positional
change of less than five minutes but without leaving the work station; and time off
task can be accommodated by normal work breaks.
At step four, the ALJ found that Plaintiff could not return to his past relevant work as a
teacher aid or sports instructor. Tr. 24. Accordingly, the ALJ proceeded to step five. Tr. 24–25.
The ALJ considered Plaintiff’s RFC, age, education, work experience, and the testimony of the
VE. Id. He found that Plaintiff could perform the duties of small product assembler, electrical
accessory assembler, and mail sorter. Tr. 25. He further found that such jobs existed in significant
numbers in the national economy, and therefore, Plaintiff was not disabled. Id. The Appeals
Council denied review on December 28, 2019. Tr. 1–3. Plaintiff timely filed the instant action on
February 7, 2020. [Doc. 1].
Plaintiff urges nine points of error, but none is meritorious. Plaintiff fails to show that the
ALJ applied any incorrect legal standard. Further, Plaintiff fails to show that the ALJ’s decision
is not supported by substantial evidence. Remand is not warranted.
First, Plaintiff argues that considering together the medical records and the fact that the
ALJ found six severe impairments at step two, he should be considered disabled. [Doc. 22] at 2, 5;
[Doc. 27] at 1. This is the entirety of the argument. The Court is not persuaded. Disability under
the Social Security Act is not determined by meeting a threshold number of severe impairments at
step two. Rather, disability is determined by the five-step SEP. § 404.1520; Yuckert, 482 U.S.
at 140. The argument is without merit.
Second, Plaintiff complains that although the ALJ recognized his severe “dysfunction of
major joints,” the ALJ erroneously ignored its limiting effects. [Doc. 22] at 2, 5. Plaintiff cites to
various medical notes and reports to show “the extreme nature” of this impairment. Id. at 5–6;
[Doc. 27] at 1–2. Plaintiff fails to show that remand is warranted. Plaintiff must show that the
ALJ’s findings are not supported by substantial evidence or that the ALJ applied an incorrect legal
standard. See Maes, 522 F.3d at 1096. Plaintiff’s arguments show neither.
Third, Plaintiff complains that although the ALJ accorded persuasive weight to the opinion
of consultative examiner, Dr. Manole, the ALJ improperly rejected portions of the opinion without
explanation. [Doc. 22] at 2, 7–8. The Court disagrees. Dr. Manole assessed Plaintiff with mild
limitations in standing, lifting, carrying, bending, and squatting. Tr. 376. Dr. Manole assessed no
limitations in all other areas of functioning (sitting, walking, reaching, handling, feeling, grasping,
visual, communicating, environmental). Tr. 375–76. The ALJ found that Plaintiff could perform
a limited range of light work, including certain postural limitations3 and a sit-stand option every
The Court finds that the RFC assessment adequately incorporates
Dr. Manole’s opinion.
The specific postural limitations included in the RFC assessment are:
[no more than] occasionally climbing ramps or stairs; never climbing ladders, ropes or scaffolds;
frequently balancing; occasionally stooping; kneeling, crouching or crawling; . . . must alternate
sitting and standing every 20 to 30 minutes throughout the workday in order to change position for
a brief positional change of less than five minutes but without leaving the work station; and time off
task can be accommodated by normal work breaks.
Plaintiff argues that the ALJ erred in failing to incorporate “the most significant aspects of
Dr. Manole’s findings and conclusion,” [Doc. 22] at 7, but the Court is not persuaded. Plaintiff
points to the portion of the doctor’s report labeled “Claimant Reported History of Present Illness,”
which contains Plaintiff’s self-assessment of his symptoms.
Plaintiff argues that these
self-assessments constitute Dr. Manole’s opinion and, as such, should have been incorporated into
the RFC assessment. Id. at 7–8 (quoting Tr. 366–67). The Court disagrees that this section of the
report contains any of the doctor’s assessed limitations. But even assuming arguendo that the
“Claimant Reported History of Present Illness” section contained any part of Dr. Manole’s opinion,
there would still be no reversible error. This is because the sections of the report labeled
“Assessment” and “Limitations,” which show no more than mild functional limitations,
Tr. 375–76, constitute substantial evidence to support the ALJ’s RFC assessment.
Fourth, Plaintiff argues that the ALJ erred in failing to find his hearing loss to be severe at
step two of the SEP. [Doc. 22] at 8–9. Even if Plaintiff were correct, which the Court does not
necessarily find, such error would not trigger remand, because the ALJ found other severe
impairments and proceeded past step two in the SEP. The argument fails as a matter of law. See
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).
Fifth, Plaintiff argues that the ALJ abused his discretion in finding that Plaintiff did not
meet Listing 12.04 for depressive disorder. [Doc. 22] at 9–11; see [Doc. 27] at 3. Abuse of
discretion is not the applicable standard of review in social security appeals, and thus, Plaintiff’s
argument is without merit. Further, Plaintiff fails to show that the ALJ applied an incorrect legal
standard in evaluating Listing 12.04. Lastly, Plaintiff fails to show that the ALJ’s step-three
findings lack substantial evidentiary support.
Plaintiff argues that the evidence of marked
limitations in at least two areas of mental functioning is “overwhelming.” [Doc. 22] at 10. In
support, Plaintiff provides excerpts from two mental health notes, which reflect abuse and neglect
as a child and symptoms of anxiety and depression as an adult. Id. at 10–11. On review of the
evidence identified by Plaintiff, the Court is not persuaded. The evidence identified by Plaintiff
could support more restrictive findings, but it also could support the ALJ’s step-three findings.
Plaintiff fails to show that the ALJ’s step-three findings are not supported by substantial evidence.
Remand is not appropriate.
Sixth, Plaintiff argues that the ALJ “failed to consider” his severe medically determinable
impairments in combination. [Doc. 22] at 11; see [Doc. 27] at 3–4. Plaintiff points to the six
severe impairments found by the ALJ at step two and argues that “[i]t is clear that a combination
of any or all of these impairments would require a finding of disability.” [Doc. 22] at 11. The
ALJ described his duty to consider all impairments in combination. Tr. 15 (“Disability is defined
as the inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment or combination of impairments . . . .”) (emphasis
added); Tr. 16 (“In making [the RFC] finding, I must consider all of the claimant’s impairments,
including impairments that are not severe”) (emphasis added). The ALJ explicitly stated that he
had considered all the evidence of record. Tr. 15 (“After careful consideration of all the evidence
. . . .”); Tr. 17 (“After careful consideration of the entire record . . . .”); Tr. 20 (“In making this
finding, I have considered all symptoms . . . .”). The Court takes him at his word. See Wall v.
Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (“Where, as here, the ALJ indicates he has considered
all the evidence our practice is to take the ALJ at his word.”) (internal quotation marks and brackets
omitted). Plaintiff fails to show application of an incorrect legal standard and also fails to show
factual findings without substantial evidentiary support.
Seventh, Plaintiff argues that the ALJ erred in finding that he could perform other work at
step five. [Doc. 22] at 12–13. Although the argument is not explicit, it appears that Plaintiff takes
issue with the step-five finding that he can perform certain light jobs. See id. The RFC assessment
found by the ALJ contemplates a limited range of light, unskilled work. Tr. 20. Based on the RFC
assessment, the VE testified that a hypothetical individual in Plaintiff’s circumstances could
preform the duties of small products assembler, electrical accessory assembler, and mail sorter.
Tr. 66–68. Based on the VE’s testimony, the ALJ found that Plaintiff could perform such work
and that it existed in significant numbers in the national economy. Tr. 25. The testimony of the
VE constitutes substantial evidence to support the ALJ’s findings at step five. See Ellison v.
Sullivan, 929 F.2d 534, 537 (10th Cir. 1990). Plaintiff fails to show error.
Eighth, Plaintiff argues that remand is warranted because the Appeals Council failed to
provide adequate reasoning for denying review. [Doc. 22] at 13. The Appeals Council need not
provide any reasoning. Martinez v. Barnhart, 444 F.3d 1201, 1207–08 (10th Cir. 2006). Remand
is not warranted on this ground.
Finally, it appears that Plaintiff challenges the ALJ’s evaluation of Plaintiff’s own
subjective reports about his symptoms. See [Doc. 27] at 2 (referring to the “intensity, persistence,
and limiting effects” of Plaintiff’s impairments), 3–4 (same), 5 (same), 12 (same). As explained
below, Plaintiff’s arguments are not persuasive.
In evaluating the symptoms reported by a claimant, the ALJ utilizes a two-step process.
Social Security Ruling (“SSR”) 16-3p, 2016 SSR LEXIS 4, at *5–10. First, the ALJ determines
whether the claimant has a medically determinable impairment that could reasonably be expected
to produce the reported symptoms. Id. at *5. Second, the ALJ evaluates the “intensity and
persistence” of the symptoms, such as pain, and determines the extent to which the symptoms limit
the claimant’s ability to perform work-related activities. Id. at *9. In considering the “intensity,
persistence, and limiting effects” of a claimant’s symptoms, the ALJ examines “the entire case
record.” Id. at *9–10. For example, the ALJ should consider the claimant’s:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual
takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief
of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and
restrictions due to pain or other symptoms.
Id. at 18–19; see 20 C.F.R. § 1529(c)(3)(i)–(vii) (2011).
If the claimant’s “statements about the intensity, persistence, and limiting effects” of his
symptoms are consistent with the evidence of record, the ALJ will determine that the symptoms
are “more likely to reduce [his] capacities to perform work-related activities.” SSR 16-3p, 2016
SSR LEXIS 4, at *20. If they are not consistent, the ALJ will find that symptoms are “less likely
to reduce [his] capacities to perform work-related activities.” Id. Moreover, the ALJ will consider
the claimant’s attempts to seek medical treatment for his symptoms, whether he has followed the
recommended treatment, as well as the possible reasons for lack of treatment compliance. Id.
The ALJ’s decision must contain more than conclusory findings. Id. at *26. A recitation
of the factors is not adequate. Id. “The determination or decision must contain specific reasons
for the weight given to the individual’s symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how
the adjudicator evaluated the individual’s symptoms.” Id.
Here, the ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, [Plaintiff]’s statements
concerning the intensity, persistence[,] and limiting effects of these symptoms [were] not entirely
consistent with the medical evidence and other evidence in the record.”4 Tr. 20–21. Plaintiff
disagrees. Plaintiff urges that his “statement[s] . . . are entirely consistent with the medical
evidence and other evidence.” [Doc. 22] at 12 (citing id. at 5–11 (arguments numbered one
through five)). To support his position, Plaintiff points to the first five numbered arguments in his
brief, which correspond to the numbered points herein, but he does not further elaborate. [Doc. 22]
at 5–11 (arguments numbered one through five). The Court is not persuaded.
Plaintiff’s arguments numbered one through five fail to show that the ALJ applied an
incorrect legal standard in evaluating the Plaintiff’s subjective reports about his symptoms.
The ALJ went on to explain that “the evidence of [Plaintiff]’s daily activities along with the objective medical
evidence discussed [earlier in the decision] establishe[d] [Plaintiff] has a greater sustained capacity than he alleges.”
Tr. 23. For example, the ALJ found that Plaintiff was able to help take care of his father, could take medications
without reminders, drive, shop in stores, and watch television daily. Tr. 20. Plaintiff fails to show that these findings
are legally inadequate or unsupported substantial evidence.
Further, Plaintiff’s arguments numbered one through five fail to show that the ALJ’s findings are
not supported by substantial evidence. The question before this Court is whether the ALJ’s
findings are supported by substantial evidence, not whether the evidence could support another
outcome more favorable to Plaintiff. Even if Plaintiff’s arguments numbered one through five
demonstrated that his own subjective reports of his symptoms were consistent with the record,
which the Court does not necessarily find, remand would still not be warranted. See Lax, 489 F.3d
at 1084 (“The possibility of drawing two inconsistent conclusions from the evidence does not
prevent [the] findings from being supported by substantial evidence.”). To trigger remand,
Plaintiff would have to show that the finding at issue was not supported by substantial evidence.
He does not. Plaintiff’s arguments fail to show that remand is appropriate.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Claimant’s
Motion to Reverse the Administrative Law Judge (ALJ) Unfavorable Decision Dated
March 15, 2019 or Alternatively to Remand the Case Back to the Appeals Council [Doc. 21] be
DENIED. The Commissioner’s final decision is affirmed.
IT IS SO ORDERED.
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent
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