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White v. Berryhill

United States District Court, D. New Mexico

May 24, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         THIS 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.

         Ms. 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. (AR 36-70).

         On 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 appeal.

         Ms. 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 GRANTED.

         I. Standard of Review

         The 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).

         “Substantial 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)).

         II. Applicable Law and Sequential Evaluation Process

         For 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, 416.920 (2012).

         At the 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”[1] 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.

         III. Background

         Ms. 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 21-22).

         At step 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).

         Turning 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).

         Next, 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 ...

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