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Roper v. Berryhill

United States District Court, D. New Mexico

March 14, 2017

RICHARD G. ROPER, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          KIRTAN KHALSA United States Magistrate Judge

         THIS 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.

         I. Background and Procedural Record

         Claimant 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.[3]) 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.)

         On July 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.[4] (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.[5] (Id.) The ALJ took testimony from Mr. Roper (Tr. 393-418), and an impartial vocational expert (“VE”), Nicole King (Tr. 418-28).

         On 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, [6] 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.)

         Because 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 stated that

[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.)

         On 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.)

         II. Standard of Review

         Judicial review of the Commissioner's denial of disability benefits is limited to whether the final decision[7] 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.

         “Substantial 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).

         “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). 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).

         III. Applicable Law and Sequential Evaluation Process

         Disability 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. 1993).

         When 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[8] 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.

         Although 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.


         Mr. 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 discussed below.

         A. RFC Assessment

         Mr. 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. at 18-20.)

         Assessing 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).

         1. Treating Physician Karla Vitale, D.O.

         a. Treatment Records

         On 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.)

         Mr. 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.)

         b. Treating ...

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