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Baca v. Berryhill

United States District Court, D. New Mexico

March 31, 2017

BRANDY BACA, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REVERSE OR REMAND

         Plaintiff asks this Court to reverse the ALJ's decision denying her disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits. Doc. 16. She argues that the ALJ failed to appropriately consider the opinions of treating doctors, a consultative examiner, a non-examining reviewer, a behavioral therapist, and a licensed independent social worker (“LISW”). Doc. 16 at 2. In his decision, the ALJ set forth a series of reasons why he found Plaintiff to not be credible as well as various inconsistencies between her conduct and the opinions of these medical sources.[1] Although the ALJ raises legitimate points and concerns, the Court finds he did not provide sufficient grounds to discount the opinions of the medical sources to the degree necessary to support his residual functional capacity (“RFC”) assessment of Plaintiff.

         Plaintiff's opening brief, however, only addressed one of the two bases for the ALJ's decision. The primary reason the ALJ denied Plaintiff benefits is that she knowingly and willfully refused to attend a series of agency consultative examinations. Because Plaintiff did not challenge (much less mention) the ALJ's decision to deny her benefits on this basis in her opening brief, the Court will affirm the ALJ's decision.

         I. Background

         Plaintiff was 33 years old at the time she filed her motion on June 13, 2016. She meets the insured status requirements of the Social Security Act through September 30, 2012 and has not engaged in substantial gainful activity since August 6, 2007. Administrative Record (AR) 358. She alleges disability due to post traumatic stress disorder (“PTSD”), depression, and anxiety. AR 139, 162. Plaintiff has seen a number of doctors and therapists since 2007. As set forth below in further detail, these individuals have consistently opined that Plaintiff has various levels of social limitations.

         Plaintiff filed her applications for disability insurance benefits and supplemental social security income in December 2008. AR 139, 143. Administrative Law Judge (“ALJ”) Barry O'Melinn first denied Plaintiff's claim in August 2011. AR 22. Plaintiff then appealed to the United States District Court for the District of New Mexico and Magistrate Judge Carmen Garza remanded the case so that the ALJ could engage in further discussion regarding medical sources. AR 492.

         On remand, in a June 24, 2015 decision, ALJ O'Melinn again denied Plaintiff's claims. He explicitly based his decision on two separate and distinct grounds. AR 354-373. First, he concluded that Plaintiff knowingly and willfully refused to attend a consultative exam and that good cause did not exist for her to miss the exam; therefore, he dismissed her case for failure to cooperate. AR 356. As an alternative basis for denying Plaintiff benefits, the ALJ reviewed the record and concluded that Plaintiff is not disabled. AR 373. The ALJ's June 24, 2015 decision later became the final agency decision for purposes of judicial review. This appeal followed.

         II. Applicable Law

         A. Disability Determination Process

         A claimant is considered disabled for purposes of Social Security disability insurance benefits if that individual 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). The Social Security Commissioner has adopted a five-step sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R. § 404.1520. The steps of the analysis are as follows:

(1) Claimant must establish that she is not currently engaged in “substantial gainful activity.” If Claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or mental impairment . . . or combination of impairments” that has lasted for at least one year. If Claimant is not so impaired, she is not disabled and the analysis stops.
(3) If Claimant can establish that her impairment(s) are equivalent to a listed impairment that has already been determined to preclude substantial gainful activity, Claimant is presumed disabled and the analysis stops.
(4) If, however, Claimant's impairment(s) are not equivalent to a listed impairment, claimant must establish that the impairment(s) prevent her from doing her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the Claimant's residual functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the physical and mental demands of Claimant's past work. Third, the ALJ determines whether, given claimant's RFC, Claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled and the analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that Claimant is able to “make an adjustment to other work.” If the Commissioner is unable to make that showing, Claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).

         B. Standard of Review

         A court must affirm the denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court's disagreement with a decision is immaterial to the substantial evidence analysis. A decision is supported by substantial evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he 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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         Similarly, even if a court agrees with a decision to deny benefits, if the ALJ's reasons for the decision are improper or are not articulated with sufficient particularity to allow for judicial review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific weighing of the evidence and “the record must demonstrate that the ALJ considered all of the evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence in the record. But, it does require that the ALJ identify the evidence supporting the decision and discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.

         III. Analysis

         Plaintiff alleges that the ALJ made the following errors in reaching his decision that she is not disabled:

A. ALJ O'Melinn impermissibly collapsed the two-step “controlling weight” analysis of the medical opinions from treating sources Kieve and Brown, and failed to give adequate reasons for rejecting their medical opinions, contrary to SSR 96-2p and Tenth Circuit precedent.
B. ALJ O'Melinn failed to apply the correct standards in analyzing the opinion of behavioral therapist Rodriguez and LISW Sandoval, contrary to SSR 06-03p.
C. ALJ O'Melinn did not give good reasons for accepting only the portions favorable to a finding of nondisability from the medical opinions of psychiatric consultative examiner Steinman and non-examining reviewers Chiang and Wewerka.
D. ALJ O'Melinn's RFC Assessment is legally deficient because it fails to express all limitations in terms of work-related mental activities, contrary to 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.920(a)(4)(iv) and SSR 96-8p.

         Doc. 16 at 2 (initial word capitalizations altered). Plaintiff separates the different types of medical sources in her first three arguments. Common to each of these arguments, however, is the assertion that the ALJ failed to follow the correct legal process and committed error in failing to give appropriate weight to portions of the opinions of the various medical sources. These alleged errors provide the backdrop for the final error Plaintiff alleges: the ALJ's RFC assessment failed to take into account all of the limitations in Plaintiff's work-related mental activities. See Doc. 16 at 21 (“ALJ O'Melinn rejects the social limitations found by every opinion of record on the basis of Ms. Baca's perceived gregariousness” and his failure to recognize limitations Plaintiff has working with co-workers and supervisors constitutes error). Thus, although Plaintiff breaks her argument into four parts, these arguments can be analyzed together, taking into account the different legal standards that apply to the various medical sources. Regardless of the medical source, Plaintiff's assessed RFC is the product of the ALJ's determination that Plaintiff is not credible, that the opinions of the medical sources regarding Plaintiff's social limitations are not reliable, and that Plaintiff has engaged in various activities that demonstrate her ability to work. The issues Plaintiff raises, then, can be distilled into whether the ALJ followed the correct legal standards in reducing the weight of the various medical sources and whether substantial evidence supports the ALJ's determination that Plaintiff has the RFC set forth in the ALJ's opinion.

         More critical than the issues Plaintiff raises in her appeal, however, is the issue Plaintiff does not raise. Absent from the bases of Plaintiff's appeal is a challenge to the ALJ's decision to dismiss her case for failure to cooperate. After noting that Plaintiff failed to address this issue in her opening brief, Defendant argues in its Response that the Court should uphold the ALJ's decision to dismiss the case based on “Plaintiff's unexplained failure to attend three consultative examinations scheduled by the agency.” Doc. 20 at 8. In her Reply, Plaintiff responds to this argument. Doc. 21 at 7-9. This response comes too late. Plaintiff failed to appeal this part of the ALJ's decision; therefore, the decision stands. Before affirming the ALJ's decision to dismiss Plaintiff's case based on her failure to cooperate, however, the Court will address Plaintiff's arguments as they relate to the ALJ's alternative basis for denying Plaintiff benefits - his determination that Plaintiff is able to work.

         A. ALJ's Determination That Plaintiff Is Not Credible

         In general, the ALJ paints a picture of a claimant with little regard for the truth who is willing to say anything to obtain the benefits she seeks. He first points out that she lied to him about her work history. AR 365. Plaintiff initially testified that she had not worked since 2012 but, when confronted with tax records demonstrating $2, 600 in earnings from Quality Care (a health care provider) in 2012 and $5, 000 in 2013, testified that she had gotten the years mixed up. AR 424-25. She then testified that she had not worked at all since then. AR 426. When next confronted with her 2014 earnings, however, Plaintiff testified that she worked for New Choices (a health care provider) for “maybe a month” for a gentleman who needed someone to bring him wood, cook, clean, and do other “just normal things.” AR 427. The ALJ points out in his decision, however, that Plaintiff's work for New Choices spanned several ...


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