Salazar v. Colvin

• Decision Date: 09 September 2014
• Docket Number: Case No. CIV-13-878-F
• Parties: TERESA L. SALAZAR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

TERESA L. SALAZAR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

Case No. CIV-13-878-F

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

September 9, 2014

REPORT AND RECOMMENDATION

Plaintiff Teresa L. Salazar brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying Plaintiff's applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. United States District Judge Stephen P. Friot has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. The Commissioner has answered and filed the administrative record (Doc. No. 8, hereinafter "R._"). The parties have briefed their positions and the case is now ready for decision. For the reasons discussed below, it is recommended that the Commissioner's decision be AFFIRMED.

PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION

Plaintiff protectively filed her applications for DIB and SSI on January 10, 2011,alleging a disability onset date of May 20, 2008, and seeking benefits on the basis of major depression, bipolar disorder, and back pain. R. 151, 157, 204, 208. Following denial of her applications initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on February 9, 2012. R. 35-77, 78-84. At the hearing Plaintiff, through her attorney, amended her alleged disability onset date to July 1, 2010. R. 16, 37-38. In addition to Plaintiff, a vocational expert ("VE") appeared and testified at the hearing. R. 60-76. The ALJ issued an unfavorable decision on April 30, 2012. R. 16-28.

The Commissioner uses a five-step sequential evaluation process to determine entitlement to disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from her amended alleged disability onset date through the date of the decision. R. 19; see 20 C.F.R. §§ 404.1571, 416.971. At step two, the ALJ determined that Plaintiff had the following severe impairments: status post left ankle arthroscopy, complete synovectomy, microfracture/microabrasion of the talus, and loose body removal from the anterior gutter; anxiety; and depression. R. 18-19; see 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ also determined that Plaintiff's alleged mild mental retardation ("MMR") was not a medically determinable impairment. R. 19.¹ At step three, the ALJ determined thatPlaintiff's condition did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). R. 19-21; see 20 C.F.R. §§ 404.1520(d), 416.920(d).

The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of her impairments. R. 21-26; see 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The ALJ found that Plaintiff had the RFC to perform light work, subject to further exertional and nonexertional limitations:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except sit 6 hours; stand 6 hours; perform simple and some detailed tasks with routine supervision; no public contact or customer service; able to interact appropriately with supervisors and co-workers on a superficial work basis; and able to adapt to work situations.

R. 21; see 20 C.F.R. § 404.1567(b) (defining "light work"); id § 416.967(b) (same). The ALJ determined at step four that Plaintiff was unable to perform any of her relevant work (administrative clerk, patient care assistant, and corrections officer), as the demands of that work exceeded Plaintiff's RFC. R. 26; see 20 C.F.R. §§ 404.1565, 416.965.

At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of her age, education, work experience, and RFC—could perform. R. 27. Taking into consideration the VE's testimony regarding the degree of erosion to Plaintiff's occupational base caused byPlaintiff's additional limitations, the ALJ concluded that Plaintiff could perform light, unskilled occupations such as textile sewing machine operator, hand packer, and motel cleaner, all of which offer jobs that exist in significant numbers in the national economy. R. 27; see 20 C.F.R. §§ 404.1545(a)(5)(ii), 416.945(a)(5)(ii). On that basis, the ALJ held that Plaintiff had not been disabled within the meaning of the Social Security Act at any time from July 1, 2010, through the date of the decision. R. 27; see 20 C.F.R. §§ 404.1520(g), 416.920(g).

STANDARD OF REVIEW

Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "A 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." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence that may undercut or detract from the administrative law judge's findings, to determine if the substantiality test has been met. Wall, 561 F.3d at 1052 (internal quotation marks omitted). While the court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute itsown judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).

ANALYSIS

Plaintiff raises several claims of error on appeal. Plaintiff's first contention is that the ALJ failed to conduct an impartial hearing due to the ALJ's prejudice and bias toward Plaintiff's lesbian relationship. Plaintiff next argues that the ALJ's determination is not supported by substantial evidence, based upon: the ALJ's error in analyzing Plaintiff's IQ test; the ALJ's failure to adequately support the conclusion that Plaintiff retains the RFC to perform restricted light work; and the ALJ's failure to properly assess Plaintiff's credibility and complaints of pain. See Pl.'s Br. (Doc. No. 10) at 4-14.

I. Whether Reversal Is Required Due to the ALJ's Prejudice and Bias

At the hearing, and as reflected in her medical records, Plaintiff testified that the death of her girlfriend in 2008 caused her great emotional distress and that thereafter she suffered depression and inability to participate in certain activities. R. 50-51; see also R. 385, 398, 405. According to Plaintiff, "As this testimony was presented the ALJ was holding papers [that] she tossed onto her desk in a dramatic display of disgust. In light of this prejudice against gay people, [Plaintiff] did not receive a fair hearing." Pl.'s Br. at 5. Plaintiff offers no other factual support and points to nothing in the ALJ's written determination—beyond the fact that her applications were denied—for this contention of prejudice.

If Plaintiff believed the assigned ALJ was prejudiced against her, she was required by the applicable regulations to "notify the [ALJ] at [her] earliest opportunity." See 20C.F.R. §§ 404.940, 416.1440. Plaintiff did not object when the alleged throwing of papers occurred or at any time during the administrative hearing. R. 35-77. Nor did Plaintiff object during the two and one-half month period between the conclusion of the hearing and the issuance of the ALJ's decision. See, e.g., R. 264 and 202 (post-hearing letters from Plaintiff's counsel to ALJ addressing evidentiary questions raised during hearing). The first objection indicated by the record occurred after the ALJ's unfavorable decision, when bias was raised by Plaintiff in requesting Appeals Council review. See R. 265-68.

The applicable regulations require that an ALJ "shall not conduct a hearing if he or she is prejudiced or partial with respect to any party." 20 C.F.R. §§ 404.940, 416.1440; see Caldwell v. Sullivan, 736 F. Supp. 1076, 1081 (D. Kan. 1990) ("An ALJ is required to be fair and impartial, not prejudiced against a claimant . . . ."). Even if assumed to be true, however, Plaintiff's mere allegation that the ALJ "tossed" papers onto her desk "in a dramatic display of disgust" does not demonstrate prejudice requiring reversal of this matter. There is nothing in the hearing transcript, the administrative record, or the ALJ's decision that would connect a tossing of papers with Plaintiff's testimony regarding her girlfriend or otherwise evidence prejudice against Plaintiff on the part of the ALJ. Nor is there any allegation or indication that Plaintiff was denied the opportunity to develop a full and adequate record in this case. See Puckett v. Chater, 100 F.3d 730, 734 (10th Cir. 1996) (rejecting a claimant's assertion of bias when claimant received a full opportunity to develop the record). To the contrary, the ALJ specifically requested that Plaintiff submit additional medical records, R. 56-57, 63-65, and after the hearing accepted furthersubmissions from Plaintiff's attorney, R. 202-03, 264.

In sum, Plaintiff's naked, conclusory allegation cannot overcome the "presumption of honesty and integrity in those serving as adjudicators" in administrative proceedings. See Withrow v. Larkin, ...