United States District Court, D. New Mexico
RICHARD G. ROPER, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER 
KHALSA United States Magistrate Judge
MATTER is before the Court on the Social Security
Administrative Record (Doc. 20) filed April 13, 2016, in
support of Plaintiff Richard G. Roper's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claims for Title II disability
benefits and Title XVI supplemental security income benefits.
On June 23, 2016, Plaintiff filed his Motion to Reverse and
Remand for Payment of Benefits, or In the Alternative, For
Rehearing, With Supporting Memorandum (“Motion”).
(Doc. 25.) The Commissioner filed a Response in opposition on
September 26, 2016 (Doc. 29), and Plaintiff filed a Reply on
October 6, 2016. (Doc. 30.) The Court has jurisdiction to
review the Commissioner's final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed
the entire record and being fully advised in the premises,
the Court finds the Motion is well taken and is GRANTED.
Background and Procedural Record
Richard G. Roper (“Mr. Roper”) alleges that he
became disabled on February 23, 2009, at the age of
twenty-nine, because of blindness in left eye, depressive
disorder, social problems, hearing loss in right ear,
anxiety, bipolar disorder, and headaches. (Tr. 62,
112.) Mr. Roper graduated from high school in
1997, served a short time in the U.S. Army, and has worked as
a laborer for various companies, a clerk in a grocery store,
a dishwasher in restaurants, and a deck hand for water
drilling companies. (Tr. 113, 118, 394.)
1, 2011, Mr. Roper filed an application for Social Security
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. § 401, and
concurrently filed an application for Supplemental Security
Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. § 1381 et seq. (Tr. 62-66,
364-70.) Mr. Roper's applications were initially denied
on November 22, 2011. (Tr. 26, 30-33, 371, 372-75.) Mr.
Roper's applications were denied again at reconsideration
on October 23, 2013. (Tr. 27, 35-37, 377, 378-80.) On October
13, 2013, Mr. Roper requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 38, 382.)
The ALJ conducted a hearing on September 2, 2014. (Tr.
388-428.) Mr. Roper appeared in person at the hearing with
attorney representative James Rawley. (Id.) The ALJ took
testimony from Mr. Roper (Tr. 393-418), and an impartial
vocational expert (“VE”), Nicole King (Tr.
January 1, 2015, the ALJ issued an unfavorable decision. (Tr.
11-25.) In arriving at her decision, the ALJ determined that
Mr. Roper met the insured status requirement through
September 30, 2010,  and that he had not engaged in substantial
gainful activity since his alleged disability onset date.
(Tr. 16.) The ALJ found that Mr. Roper suffered from severe
impairments of polysubstance abuse, blind left eye, obesity,
and schizophrenia. (Id.) The ALJ found that these
impairments, individually or in combination, did not meet or
medically equal one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. (Tr. 17.)
she found that Mr. Roper's impairments did not meet a
Listing, the ALJ then went on to assess Mr. Roper's
residual functional capacity (“RFC”). The ALJ
[a]fter careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform a full range of work at all exertional levels but the
claimant has no depth perception or peripheral vision on the
left. From a mental standpoint, he requires work that
involves only simple decisions with few workplace changes,
involving no interaction with the public, and only occasional
superficial contact with co-workers.
(Tr. 42.) Based on the testimony of the VE, the ALJ concluded
that Mr. Roper was unable to perform any past relevant work,
and that considering Mr. Roper's age, education, work
experience, and RFC, there were jobs that existed in
significant numbers in the national economy that Mr. Roper
could perform and he was therefore not disabled. (Tr. 23-25.)
September 11, 2015, the Appeals Council issued its decision
denying Mr. Roper's request for review and upholding the
ALJ's final decision. (Tr. 5-7.) On November 16, 2015,
Mr. Roper timely filed a Complaint seeking judicial review of
the Commissioner's final decision. (Doc. 1.)
Standard of Review
review of the Commissioner's denial of disability
benefits is limited to whether the final
decision is supported by substantial evidence and
whether the Commissioner applied the correct legal standards
to evaluate the evidence. 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). In making these determinations,
the Court must meticulously examine the entire record, but
may neither reweigh the evidence nor substitute its judgment
for that of the Commissioner. Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007). In other
words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep't. of Health & Human
Servs., 10 F.3d 739, 741 (10th Cir. 1993).
The Court will not disturb the Commissioner's final
decision if it correctly applies legal standards and is based
on substantial evidence in the record.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. Substantial evidence is
“more than a scintilla, but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007). A decision “is not
based on substantial evidence if it is overwhelmed by other
evidence in the record[, ]” Langley, 373 F.3d
at 1118, or “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374
(10th Cir. 1992). The Court's 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, 489 F.3d at 1084
(quoting Zoltanski v. Fed. Aviation Admin., 372 F.3d
1195, 1200 (10th Cir. 2004)). Thus, the Court
“may not displace the agency's choice between two
fairly conflicting views, ” even if the Court would
have “made a different choice had the matter been
before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
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). As such, even if a reviewing court agrees
with the Commissioner's ultimate decision to deny
benefits, it cannot affirm that decision if the reasons for
finding a claimant not disabled were arrived at using
incorrect legal standards, or are not articulated with
sufficient particularity. Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). “[T]he record
must demonstrate that the ALJ considered all of the evidence,
but an ALJ is not required to discuss every piece of
evidence.” Id. at 1009-10. Rather, the ALJ
need only discuss the evidence supporting his decision, along
with any “uncontroverted evidence he chooses not to
rely upon, as well as significantly probative evidence he
rejects.” Id.; Mays v. Colvin, 739
F.3d 569, 576 (10th Cir. 2014).
Applicable Law and Sequential Evaluation
under the Social Security Act is defined as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment.” 42 U.S.C. § 423(d)(1)(A). A
claimant is disabled under the Act if his “physical or
mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage
in any other kind of substantial gainful work in the national
economy.” 42 U.S.C. § 423(d)(2)(A). To qualify for
disability insurance benefits, a claimant must establish a
severe physical or mental impairment expected to result in
death or to last for a continuous period of twelve months,
which prevents the claimant from engaging in substantial
gainful activity. 42 U.S.C. §423(d)(1)(A); Thompson
v. Sullivan, 987 F.2d 1482, 1486 (10th Cir.
considering a disability application, the Commissioner uses a
five-step sequential evaluation process. 20 C.F.R. §
416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
At the first four steps of the evaluation process, the
claimant must show that: (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) meet or equal one of the
Listings 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), 416.920(a)(4)(i-iv); Grogan
399 F.3d at 1261. If the claimant can show that his
impairment meets or equals a Listing at step three, the
claimant is presumed disabled and the analysis stops. If at
step three, the claimant's impairment is not equivalent
to a listed impairment, before moving on to step four of the
analysis, the ALJ must consider all of the relevant medical
and other evidence, including all of the claimant's
medically determinable impairments whether
“severe” or not, and determine what is the
“most [the claimant] can still do” in a work
setting despite his physical and mental limitations. 20
C.F.R. §§ 404.1545(a)(1)-(3), 416.945(a)(1)-(3).
This is called the claimant's residual functional
capacity (“RFC”). 20 C.F.R. §§
404.1545(a)(1) & (a)(3), 416.945(a)(1) & (a)(3). The
claimant's RFC is used at step four to determine if he
can perform the physical and mental demands of his past
relevant work. 20 C.F.R. §§ 404.1520(a)(4),
404.1520(e), 416.920(a)(4), 416.920(e). If the claimant
establishes that he is incapable of meeting those demands,
the burden of proof then shifts to the Commissioner, at step
five of the sequential evaluation process, to show that the
claimant is able to perform other work in the national
economy, considering his residual functional capacity
(“RFC”), age, education, and work experience.
Id., Grogan, 399 F.3d at 1261.
the claimant bears the burden of proving disability in a
Social Security case, because such proceedings are
nonadversarial, “[t]he ALJ has a basic obligation in
every social security case to ensure that an adequate record
is developed during the disability hearing consistent with
the issues raised.” Henrie v. U.S. Dep't of
Health & Human Servs., 13 F.3d 359, 360-61
(10th Cir. 1993); Madrid v. Barnhart, 447
F.3d 788, 790 (10th Cir. 2006). “This is
true despite the presence of counsel.” Henrie,
13 F.3d at 361. “The duty is one of inquiry and factual
development, ” id., “to fully and fairly
develop the record as to material issues.” Hawkins
v. Chater, 113 F.3d 1162, 1167 (10th Cir.
1997). This may include, for example, an obligation to obtain
pertinent medical records or to order a consultative
examination. Madrid, 447 F.3d at 791-92. The duty is
triggered by “some objective evidence in the record
suggesting the existence of a condition which could have a
material impact on the disability decision requiring further
investigation.” Hawkins, 113 F.3d at 1167.
Roper asserts two arguments in support of reversing and
remanding his case as follows: (1) the ALJ's finding that
Mr. Roper failed to establish the presence of a medically
determinable impairment prior to the expiration of his
insured status was not supported by substantial evidence; and
(2) the ALJ's RFC finding is contrary to the evidence and
law. (Doc. 25 at 5-21.) The Court finds grounds for remand as
Roper argues that the ALJ's RFC omitted several
limitations for which there was substantial evidence in the
record. (Doc. 25 at 7.) In assessing his limitations related
to his ability to do work-related mental activities, Mr.
Roper argues that the ALJ failed to properly evaluate his
treating doctor's opinion, improperly discounted the
State agency examining consulting psychologist's
assessments, and improperly considered Mr. Roper's
demeanor at the hearing. (Id. at 8-18.) As to Mr.
Roper's physical impairments, he argues that the ALJ
failed to discuss the limitations assessed by State agency
examining medical consultant Gregory McCarthy. (Id.
a claimant's residual functional capacity is an
administrative determination left solely to the Commissioner.
20 C.F.R. §§ 404.1546(c) and 416.946(c) (“If
your case is at the administrative law judge hearing level or
at the Appeals Council review level, the administrative law
judge or the administrative appeals judge at the Appeals
Council . . . is responsible for assessing your residual
functional capacity.”); see also SSR 96-5p,
1996 WL 374183, at *2 (stating that some issues are
administrative findings, such as an individual's RFC). In
assessing a claimant's RFC, the ALJ must consider the
combined effect of all of the claimant's medically
determinable impairments, and review all of the evidence in
the record. Wells v. Colvin, 727 F.3d 1061, 1065
(10th Cir. 2013); see 20 C.F.R.
§§ 404.1545(a)(2) and (3) and 416.945(a)(2) and
(3). The ALJ must consider and address medical source
opinions and must always give good reasons for the weight
accorded to a treating physician's opinion. 20 C.F.R.
§ 404.1527(c)(2); SSR 96-8p, 1996 WL 374184, at *7. If
the RFC assessment conflicts with an opinion from a medical
source, the ALJ must explain why the opinion was not adopted.
SSR 96-8p, 1996 WL 374184 at *7. Most importantly, the
ALJ's “RFC assessment must include a narrative
discussion describing how the evidence supports each
conclusion, citing specific medical facts . . . and
nonmedical evidence.” Wells, 727 F.3d at 1065
(quoting SSR 96-8p, 1996 WL 374184, at *7). When the ALJ
fails to provide a narrative discussion describing how the
evidence supports each conclusion, citing to specific medical
facts and nonmedical evidence, the court will conclude that
her RFC conclusions are not supported by substantial
evidence. See Southard v. Barnhart, 72 F. App'x
781, 784-85 (10th Cir. 2003). The ALJ's
decision must be sufficiently articulated so that it is
capable of meaningful review. See Spicer v.
Barnhart, 64 F. App'x 173, 177-78 (10th
Cir. 2003) (unpublished).
Treating Physician Karla Vitale, D.O.
November 11, 2010, Mr. Roper presented to Cibola Family
Health Center seeking to establish care for concerns about
his “mental health.” (Tr. 144-45.) DO Karla
Vitale evaluated Mr. Roper. (Id.) Mr. Roper reported
that he was not currently taking any medications, but that in
the past he had taken Risperdal for bipolar disorder, Valium
for anxiety, and Trazodone for insomnia. (Tr. 144.) Dr.
Vitale noted that Mr. Roper reported being depressed,
receiving counseling, having unexplained bursts of energy,
talking too fast, seeing things other people do not see,
hearing things other people do not hear, and having racing
thoughts and sleep disturbances. (Id.) Dr. Vitale
noted that Mr. Roper reported having passive suicidal
ideations and had attempted a methamphetamine overdose in
2003. (Id.) Dr. Vitale noted that Mr. Roper reported
that methamphetamines were a problem for him and that he
currently smoked cannabis every day. (Id.) Dr.
Vitale psychologically examined Mr. Roper and assessed him
with, inter alia, bipolar disorder, depression with
anxiety, and insomnia. (Tr. 145.) Dr. Vitale prescribed
Wellbutrin and Hydroxyzine for bipolar disorder, Trazodone
for insomnia, and ordered lab work. (Id.)
Roper saw Dr. Vitale four more times over the next six
months. (Tr. 132-34, 135-37, 138-40, 141-43.) On December 7,
2010, Dr. Vitale indicated that Mr. Roper's bipolar
disorder was worsening. (Tr. 141.) She increased the
Wellbutrin, stopped Hydroxyzine, and prescribed Lamictal.
(Tr. 142.) On December 30, 2010, Dr. Vitale noted that Mr.
Roper reported using methamphetamines on Christmas. (Tr.
138.) She also noted that Mr. Roper reported he was paranoid
and believed that people were out to get him. (Id.)
Dr. Vitale assessed that Mr. Roper's bipolar disorder was
unchanged. (Id.) Dr. Vitale added
“[a]mphetamine and other psychostimulant dependence,
episodic abuse” and “[c]annabis dependence”
to her assessment, increased the Lamictal, continued
Wellbutrin for depression, and encouraged Mr. Roper to
discontinue his use of illicit drugs explaining that their
use with prescription drugs was contraindicated and could be
fatal. (Tr. 139.) On February 11, 2011, Dr. Vitale noted that
Mr. Roper reported he continued to use illicit drugs and had
last used methamphetamines three weeks earlier. (Tr. 135-36.)
She assessed that Mr. Roper's bipolar disorder was
unchanged. (Id.) She increased the Lamictal,
continued Wellbutrin, and added Effexor for depression. (Tr.
136.) On May 5, 2011, Dr. Vitale assessed that Mr.
Roper's bipolar disorder was unchanged. (Tr. 132-34.) As
to Mr. Roper's bipolar disorder, Dr. Vitale noted that he
was “noncompliant and difficult to treat.” (Tr.
133.) She continued Lamictal, Wellbutrin and Hydroxyzine, and
increased Effexor. (Id.)