United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Jessica White's
Motion to Reverse and Remand for a Rehearing With
Supporting Memorandum (the “Motion”), (Doc.
17), filed January 20, 2017; Defendant Commissioner Nancy A.
Berryhill's Brief in Response to Plaintiff's
Motion to Reverse and Remand to Agency for Rehearing, With
Supporting Memorandum, (the “Response”),
(Doc. 19), filed March 30, 2017; and Ms. White's
Reply in Support of Motion to Reverse and Remand for a
Rehearing (the “Reply”), (Doc. 21), filed
April 24, 2017.
White filed applications for supplemental security income and
disability insurance benefits on June 18, 2012, alleging
disability beginning May 25, 2008. (Administrative Record
“AR” 22). Ms. White claimed she was limited in
her ability to work due to bipolar disorder, Post-Traumatic
Stress Disorder (“PTSD”), Attention Deficit
Hyperactivity Disorder (“ADHD”), depression, and
Obsessive Compulsive Disorder (“OCD”). (AR 262).
Ms. White's applications were denied initially on
December 3, 2012, and upon reconsideration on July 10, 2013.
(AR 22). Ms. White requested a hearing before an
Administrative Law Judge (“ALJ”), which was held
on October 3, 2014, before ALJ John W. Rolph. (AR 36). Ms.
White and Nicole King, an impartial vocational expert
(“VE”), testified at the hearing, and Michael
Armstrong, an attorney, represented Ms. White at the hearing.
January 21, 2015, ALJ Rolph issued his decision, finding Ms.
White not disabled at any time between her alleged disability
onset date through the date of the decision. (AR 30). Ms.
White requested review by the Appeals Council, (AR 14), which
was denied, (AR 1-3), making the ALJ's decision the
Commissioner's final decision for purposes of this
White now argues that the ALJ erred in considering and
weighing the opinions of State Agency Consultative Examining
Psychologist John Owen, Ph.D., and Licensed Professional
Clinical Counselor (“LPCC”), Lisa Harvey. (Doc.
17 at 13-20). The Court has reviewed the Motion, the
Response, the Reply, and the relevant law. Additionally, the
Court has meticulously reviewed the administrative record.
Because the ALJ erred in his consideration and weighing of
Dr. Owen's and Ms. Harvey's opinions, the Court finds
that Plaintiff's motion should be
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008); Hamilton v. Sec'y of Health & Human
Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). 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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's
“failure to apply the correct legal standards, or show
. . . that she has done so, are grounds for reversal.”
Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.
1996) (citing Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for the Commissioner's.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214. A court's review is limited to the
Commissioner's final decision, 42 U.S.C. § 405(g),
which is generally the ALJ's decision, rather than the
Appeals Council's denial of review. O'Dell v.
Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214; Doyal, 331 F.3d at 760. An ALJ's
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.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
at 1214. While the Court may not re-weigh the evidence or try
the issues de novo, its examination of the record
must include “anything that may undercut or detract
from the ALJ'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
ALJ]'s 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)).
Applicable Law and Sequential Evaluation Process
purposes of supplemental security income and disability
insurance benefits, a claimant establishes a disability when
she 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) (2015), 42 U.S.C. § 1382c(a)(3)(A) (2004);
20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In
order to determine whether a claimant is disabled, the
Commissioner follows a five-step sequential evaluation
process (“SEP”). Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
first four steps of the SEP, the claimant bears the burden of
showing: (1) she is not engaged in “substantial gainful
activity”; (2) she 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 either (3) her impairment(s) either
meet or equal one of the “Listings” of presumptively
disabling impairments; or (4) she is unable to perform her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the
ALJ determines the claimant cannot engage in past relevant
work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant
is able to perform other work in the national economy,
considering the claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.
White applied for supplemental security income and disability
insurance benefits due to bipolar disorder, PTSD, ADHD,
depression, and OCD. (AR 262). At step one, the ALJ
determined that Ms. White had not engaged in substantial
gainful activity since May 25, 2008, the alleged onset date.
(AR 20). At step two, the ALJ concluded that Ms. White was
severely impaired by PTSD, Bipolar Disorder, Major Depressive
Disorder (“MDD”), ADHD, and OCD. (AR 20-21). At
step three, the ALJ determined that none of Ms. White's
impairments, solely or in combination, equaled one of the
listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR
four the ALJ found that Ms. White has the RFC to perform a
full range of work at all exertional levels. (AR 22). The ALJ
further found that Ms. White: is capable of learning,
remembering, and performing simple, routine, and repetitive
tasks, involving simple work instructions, which are
performed in a routine, predictable, and low stress
environment, defined as one in which there is a regular pace,
few work place changes, and no “over the
shoulder” supervision; can maintain concentration,
persistence, and pace for two hours at a time with normal
breaks; may have occasional and superficial contact with
supervisors and co-workers; may have minimal to no contact
with the public; and will perform optimally in work tasks
that do not require teamwork and which allow her to work
independently of others. (AR 22-23). In formulating Ms.
White's RFC, the ALJ stated that he considered Ms.
White's mental health history, Ms. White's subjective
complaints of her psychological symptoms, and the medical
evidence in the record. (AR 23-27). The ALJ found that Ms.
White's statements as to the intensity, persistence, and
limiting effects of her symptoms were “not entirely
credible.” (AR 25). The ALJ found that, while Ms.
White's medical records tend to corroborate her reports
that she has PTSD, bipolar disorder, ADHD, OCD and
depression, “they do not entirely confirm that their
intensity and limiting effects are as great as [Ms. White]
alleges.” (AR 25). For example, the ALJ reasoned that
Ms. White has consistently attended and completed her college
courses and has repeatedly reported that her mood was stable
with her medications. (AR 25). The ALJ stated that Ms.
White's “many mental status examinations, while
generally revealing abnormalities with respect to her mood
and affect, have rarely shown serious problems with respect
to [Ms. White's] thought processes, appearance, insight
and judgment, or cognitive functioning, ” and that Ms.
White and her doctors have described her as having stable
thoughts at many appointments. (AR 25).
to opinion evidence, the ALJ first evaluated the assessment
provided by consultative examiner Dr. Owen. (AR 25). Dr. Owen
diagnosed Plaintiff with PTSD, OCD, and a history of sexual
abuse as a child, and stated that he could not formally
diagnose bipolar disorder, but “it should be
considered.” (AR 466-67). The ALJ stated that he gave
significant weight to Dr. Owen's opinions that Ms. White
has impairments that are between slight and moderate levels
of severity. (AR 25). The ALJ stated that Dr. Owen opined
that Ms. White has marked difficulty in concentration and in
her ability to interact with the public, and the ALJ gave
“only some weight to Dr. Owen on this particular
assessment” because this opinion “appears
excessive in light of [Ms. White's] ability to attend
college classes without significant distress.” (AR 26).
the ALJ considered the opinions of Ms. Harvey, LPCC. (AR 26).
The ALJ gave Ms. Harvey's September 11, 2014, opinions
“little weight, ” stating that Ms. Harvey is not
an acceptable medical source, the record does not contain any
treatment notes from Ms. Harvey to support her findings, Ms.
White's records show that she has good focus and
concentration when she is on her medications, and Ms. White
scored a 29 out of 30 on the Mini Mental Status Exam. (AR
26). As to Ms. Harvey's September 27, 2014, opinion that
Ms. White has been disabled since before June 30, 2010, the
ALJ again noted that Ms. Harvey is not an acceptable medical
source, and stated that he gave this opinion little weight
because it is not supported by the evidence in the record.
(AR 26). The ALJ further stated that this opinion ...