United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's Motion to
Reverse and Remand for Rehearing, with Supporting Memorandum
(Doc. 21), filed November 16, 2016. Pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure
73(b), the parties have consented to me serving as the
presiding judge and entering final judgment. Doc. 9.
Having reviewed the parties' submissions, the applicable
law, and the relevant portions of the Administrative Record,
the Court will deny the Motion.
Plaintiff's second appeal. On June 29, 2011, Plaintiff
protectively filed an application with the Social Security
Administration for disability insurance benefits under Title
II of the Social Security Act. AR at
148-49. Plaintiff alleged a disability onset date
of October 20, 2007, due to “Fibromyalgia, Arthritis,
and Compressed Dics (sic) in neck.” AR at 148,
173. However, Plaintiff continued to work full time until
February 18, 2011. AR at 173.
agency denied Plaintiff's claims initially and upon
reconsideration. AR at 74-83. Plaintiff requested
review and, after holding a de novo hearing,
Administrative Law Judge Myriam C. Fernandez Rice (“the
ALJ”) issued an unfavorable decision on May 3, 2013.
AR at 42-50. The Appeals Council denied
Plaintiff's request for review of the ALJ's decision
on November 12, 2013. AR at 1-6. As such, the
ALJ's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003).
then appealed the ALJ's decision to this Court.
AR at 491-94. The Acting Commissioner of Social
Security requested voluntary remand of the case pursuant to
sentence four of 42 U.S.C. § 405(g), see AR at
497-98, and the case was accordingly remanded. AR at
495-96. On remand, the Appeals Council instructed the ALJ to
review new and material evidence submitted by Plaintiff
(specifically mentioning a consultative examination conducted
by John Vigil, M.D.) and to weigh a fibromyalgia
questionnaire submitted by Kathy Finch, M.D., one of
Plaintiff's treating providers. AR at 502-03.
to do just that, the ALJ held a second de novo
hearing and, ultimately, issued another unfavorable decision
on December 8, 2015. AR at 424-37. The Appeals
Council did not assume jurisdiction over the case, and so the
ALJ's second decision became the final decision of the
Commissioner. 20 C.F.R. § 404.984. This Court now has
jurisdiction to review that decision pursuant to 42 U.S.C.
§ 405(g) and 20 C.F.R. § 422.210(a).
claimant seeking disability benefits must establish that 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. §
1382c(a)(3)(A); 20 C.F.R. § 404.1505(a). The
Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R.
One of the process, the ALJ found that Plaintiff engaged in
substantial gainful activity from October 20, 2007 through
February 18, 2011, but that she had not engaged in
substantial gainful activity since that time. AR at
426. However, the ALJ did note that Plaintiff continues to
work for six hours per week and that “[a]lthough this
work does not rise to the level of substantial gainful
activity, it does illustrate her ability to find and maintain
some employment.” AR at 427. At Step Two, she
determined that Plaintiff suffers from the severe impairments
of “cervical spondylosis, fibromyalgia, osteoarthritis,
chronic pain, depression, anxiety, and obesity.”
AR at 427. At Step Three, the ALJ concluded that
Plaintiff's impairments, individually and in combination,
did not meet or medically equal the regulatory
“listings.” AR at 427-30.
claimant does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). RFC is a
multidimensional description of the work-related abilities a
plaintiff retains in spite of his medical impairments. 20
C.F.R. § 404.1545(a)(1). “RFC is not the
least an individual can do despite his or her
limitations or restrictions, but the most.”
SSR 96-8P, 1996 WL 374184, at *1 (emphasis in original). In
this case, the ALJ determined that Plaintiff retains the RFC
to “perform light work as defined in 20 C.F.R. §
404.1567(b) except that she cannot climb ladders, ropes, or
scaffolds and is limited to occasional overhead reaching. She
is able to maintain, understand, and remember simple work
instructions with occasional changes in work setting.”
AR at 430.
this RFC at Steps Four and Five, the ALJ determined that
Plaintiff is unable to perform her past relevant work as a
court clerk. AR at 435. Relying upon the testimony
of a vocational expert (“VE”), however, the ALJ
found that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform despite
her limitations. AR at 436. Specifically, the ALJ
determined that Plaintiff maintains the RFC to work as an
electronics worker, press operator, or fruit distributer.
AR at 436. Thus, the ALJ determined that Plaintiff
is not disabled and denied benefits. AR at 437.
Court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence and whether the correct legal standards
were applied.” Vigil v. Colvin, 805 F.3d 1199,
1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area
is grounds for remand. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012). In making this
determination, however, this Court “cannot reweigh the
evidence or substitute [its] judgment for the administrative
law judge's.” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016) (citation omitted).
argues that the ALJ improperly rejected the opinions of her
treating physician, Kathy Finch, M.D., other treating sources
Nancy Stockton, PA-C, Debra Jaccard, CNP, and Marissa Romero,
CFNP, and consultative examiner John Vigil, M.D. See
Doc. 21 at 1. Plaintiff also contends that the ALJ's
Step Five finding is not supported by substantial evidence
because the VE testimony as to the number of jobs in the
national economy is unreliable. Id. The Court
addresses each argument in turn.
Treating Physician Finch
Finch, M.D., treated Plaintiff from September 2008 until at
least April 2012. See AR at 249, 381. During her
initial appointment, on September 30, 2008, Plaintiff
presented to Dr. Finch with complaints of increasing neck
pain and a history of Fibromyalgia. AR at 365. At
that time, Plaintiff described her pain as
“moderate.” AR at 365. Dr. Finch
confirmed Plaintiff's Fibromyalgia diagnosis, increased
her dosage of hydrocodone, and started her on Lyrica.
AR at 366.
December 23, 2008, Plaintiff presented for a recheck of her
neck pain and again described her pain as
“moderate.” AR at 364. On November 5,
2009, Dr. Finch increased Plaintiff's hydrocodone
prescription for a month. AR at 355. On November 11,
2009, Plaintiff presented for an annual exam. She reported
that the extra hydrocodone “really helps” and her
dosage was permanently increased. AR at 352.
March 18, 2010, Plaintiff sought FMLA paperwork from Dr.
Finch's office. AR at 295. She reported that she
was having more bad days than good and was taking a lot of
time off of work. AR at 295. On May 27, 2011,
however, Plaintiff presented for a physical and at that time
reported that she felt well with “minor complaints,
” including a decreased energy level. AR at
290. On August 1, 2011, and again on September 1, 2011,
Plaintiff presented with complaints of depression.
AR at 339. Of note, Dr. Finch reported that
Plaintiff was “on a good mix of meds for
fibromyalgia.” AR at 340.
Finch completed a Fibromyalgia Questionnaire on September 30,
2011 at the request of the Administration. AR at
247-49. Dr. Finch indicated that she had been treating
Plaintiff since September 30, 2008, but that Plaintiff
suffered from fibromyalgia prior to establishing treatment
with her. AR at 249. Dr. Finch noted that Plaintiff
had 12 of 18 tender points, opined that Plaintiff would be
unable to sustain an 8-hour workday or 40-hour workweek and
that the pain, fatigue, and other fibromyalgia symptoms would
interfere with Plaintiff's ability to focus attention on
work-related tasks in a competitive work environment for
increments of at least 2 hours at a time. AR at 249.
Dr. Finch indicated that Plaintiff would have variations from
day-to-day in terms of her ability to function and that she
would have both good and bad days. AR at 249. Dr.
Finch indicated that Plaintiff had suffered from this degree
of functional limitation even before becoming Dr. Finch's
patient in 2008. AR at 249. Dr. Finch stated that
she reached her conclusions through a combination of clinical
interviews, objective clinical observations, consultation
with other members of treatment staff, and objective testing.
AR at 249.
April 13, 2012, at Plaintiff's last appointment with Dr.
Finch, she presented with symptoms of “myalgias,
arthralgias, generalized fatigue, widespread pain and morning
stiffness” that had begun about six months prior.
AR at 382. Plaintiff described her pain as
“moderate” in severity and “unchanged,
” but was unsure whether the pain was “worsening
from actual fibromyalgia or recent stress.” AR
addressed these visits and Dr. Finch's Fibromyalgia
Questionnaire in her decision, see AR at 431,
433-34, and ultimately found that Dr. Finch's conclusions
as to the severity of Plaintiff's impairments
“reduces the credibility of her opinion, as the
claimant was able to continue working full time until
February 2011.” AR at 434 (citing AR
at 249). The ALJ also gave the “opinion little weight
because treatment notes from Dr. Finch document that the
claimant felt well and had a normal attention span and
ability to concentrate and at another visit describe (sic)
herself as having moderate pain.” AR at 434
(citing AR at 290, 382).
assigning Dr. Finch's opinions as to the functional
limitations imposed by Plaintiff's fibromyalgia
“little weight” the ALJ effectively rejected
those opinions. Chapo v. Astrue, 682 F.3d 1285, 1291
(10th Cir. 2012) (equating “according little
weight” to an opinion with “effectively
rejecting” it); Crowder v. Colvin, 561 F.
App'x 740, 742 (10th Cir. 2014) (unpublished) (citing
Chapo for this proposition); Ringgold v.
Colvin, 644 F. App'x 841, 844 (10th Cir. 2016)
(unpublished) (same). It was certainly the ALJ's
prerogative to do so, if warranted. However, the Tenth
Circuit has cautioned that “[i]f the ALJ rejects the
opinion completely, [s]he must then give specific, legitimate
reasons for doing so.” Robinson v. Barnhart,
366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)).
Moreover, “[i]n choosing to reject the treating
physician's assessment, an ALJ may not make speculative
inferences from medical reports and may reject a treating
physician's opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”
Id. (quoting McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir. 2002)).
in order to ensure that an ALJ properly evaluates a treating
physician's opinions “case law, the applicable
regulations, and the Commissioner's pertinent Social
Security Ruling (SSR) all make clear that in evaluating the
medical opinions of a claimant's treating physician, the
ALJ must complete a sequential two-step inquiry, each step of
which is analytically distinct.” Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). First, the
ALJ should determine whether the opinion is entitled to
“controlling weight.” Watkins, 350 F.3d
at 1300. An ALJ is required to give the opinion of a treating
physician controlling weight if it is both: (1)
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques”; and (2)
“consistent with other substantial evidence in the
record.” Id. (quotation omitted). “[I]f
the opinion is deficient in either of these respects, then it
is not entitled to controlling weight.” Id.
the ALJ does not affirmatively state whether Dr. Finch's
opinions are entitled to controlling weight, it appears that
the ALJ may have skipped the first step under the treating
physician analysis and leapt directly to the second. In the
past, this Court has held that skipping the first step in the
analysis constitutes reversible error. Wellman v.
Colvin, CIV 13-1122 KBM, Doc. 19 (D.N.M. Dec. 3, 2014).
In fact, this result appeared mandatory under Tenth Circuit
law. See Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003) (“A finding at this stage (as to
whether the opinion is either unsupported or inconsistent
with other substantial evidence) is necessary so
that we can properly review the ALJ's determination on
appeal.”) (emphasis added); see also
Robinson, 366 F.3d at 1083 (noting that the ALJ
failed to expressly state whether an opinion would be
afforded controlling weight); Daniell v. Astrue, 384
F. App'x 798, 801 (10th Cir. 2010) (unpublished) (quoting
Watkins, 350 F.3d at 1300).
more recently the Tenth Circuit has indicated that where a
reviewing court can determine that an ALJ “implicitly
declined to give the opinion controlling weight” there
is no ground for remand. Mays v. Colvin, 739 F.3d
569, 575 (10th Cir. 2014). Here, the ALJ's decision to ascribe
Dr. Finch's opinion “little weight” shows
that she implicitly declined to give it controlling weight
because she specifically found it the opinion to be both
unsupported by her treatment notes and, more importantly,
inconsistent with the fact that Plaintiff was able to work
full-time from 2008 through 2011. Therefore, the Court
hesitates to reverse the ALJ solely for failing to discuss
explicitly whether Dr. Finch's opinion was entitled to
controlling weight. See Perez v. Colvin, CIV 15-0429
MCA-KBM, 2016 WL 8229939, at *6 (D.N.M. Oct. 12, 2016),
report and recommendation adopted, 2016 WL 8229937
(D.N.M. Nov. 7, 2016).
a treating physician's opinion is not entitled to
controlling weight, “[t]reating source medical opinions
are still entitled to deference and must be weighed using all
of the factors provided in 20 C.F.R. § 404.1527”
at the second step of the ALJ's analysis. Watkins
v, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188,
at *4). The Tenth Circuit has summarized these factors as:
(1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the
treatment relationship, including the treatment provided and
the kind of examination or testing performed; (3) the degree
to which the physician's opinion is supported by relevant
evidence; (4) consistency between the opinion and the record
as a whole; (5) whether or not the physician is a specialist
in the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ's attention which tend to
support or contradict the opinion.
Krauser, 638 F.3d at 1331 (quoted authority
omitted). An ALJ is “not required ‘to apply
expressly each of the six relevant factors in deciding what
weight to give a medical opinion.'” Razo v.
Colvin, 663 F. App'x 710, 715 (10th Cir. 2016)
(unpublished) (quoting Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007)). Rather, an ALJ must simply