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Mills v. Berryhill

United States District Court, D. New Mexico

June 9, 2017

ROY MILLS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Roy Mills' Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (the “Motion”), (Doc. 17), filed January 11, 2017; Defendant Commissioner Nancy A. Berryhill's Response to Plaintiff's Motion to Reverse and Remand the Administrative Decision (the “Response”), (Doc. 21), filed April 5, 2017; and Mr. Mills' Reply in Support of Plaintiff's Motion to Reverse and Remand for a Rehearing With Supportive Memorandum (the “Reply”), (Doc. 22), filed May 1, 2017.

         Mr. Mills filed applications for supplemental security income and disability insurance benefits on April 23, 2012, alleging disability beginning August 2, 2011. (Administrative Record “AR” 16). Mr. Mills claimed he was limited in his ability to work due to major depressive disorder, generalized anxiety disorders, disassociated amnesia, intermittent explosive disorder, drug abuse, and a compressed disc in his back. (AR 185). Mr. Mills' applications were denied initially on December 11, 2012, and upon reconsideration on June 17, 2013. (AR 16). Mr. Mills requested a hearing before an Administrative Law Judge (“ALJ”), which was held on November 5, 2014, before ALJ Ann Farris. (AR 864). Mr. Mills and Pamela Bowman, an impartial vocational expert (“VE”), testified at the hearing, and Michael Armstrong, an attorney, represented Mr. Mills at the hearing. (AR 864-93).

         On July 17, 2015, ALJ Farris issued her decision, finding Mr. Mills not disabled at any time between his alleged disability onset date through the date of the decision. (AR 29). Mr. Mills requested review by the Appeals Council, (AR 12), which was denied, (AR 7-9), making the ALJ's decision the Commissioner's final decision for purposes of this appeal.

         Mr. Mills now argues that the ALJ erred in considering and weighing the opinions of Psychiatric Mental Health Nurse Practitioner (“PMHNP”) Jayanna Warwick and non-examining State Agency psychologist Carol Mohney, Ph.D. (Doc. 17 at 14-19). 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 her consideration and weighing of Ms. Warwick's and Dr. Mohney'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

         Mr. Mills applied for supplemental security income and disability insurance benefits due to major depressive disorder, generalized anxiety disorders, disassociated amnesia, intermittent explosive disorder, drug abuse, and a compressed disc in his back. (AR 185). At step one, the ALJ determined that Mr. Mills had not engaged in substantial gainful activity since August 2, 2011, the alleged onset date. (AR 19). At step two, the ALJ concluded that Mr. Mills was severely impaired by: depression; anxiety; soma to form disorder, not otherwise specified; dependent avoidant personality disorder; borderline intellectual functioning; and impulse control disorder. (AR 19-21). At step three, the ALJ determined that none of Mr. Mills' 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 21-23).

         At step four, the ALJ found that Mr. Mills has the RFC to perform a full range of work at all exertional levels, with the following nonexertional limitations: “he is limited to work with short and simple instructions and only occasional and superficial interaction with the general public and co-workers.” (AR 23). In formulating Mr. Mills' RFC, the ALJ stated that she considered Mr. Mills' mental and physical health history, Mr. Mills' subjective complaints of his symptoms, and the medical evidence in the record. (AR 23-27).

         In considering the medical opinion evidence, the ALJ first noted that Mr. Mills underwent a psychosocial assessment in July 2012 by Licensed Professional Clinical Counselor Annette Kerr, who diagnosed him with major depressive disorder, generalized anxiety disorder, dissociated amnesia, intermittent explosive disorder, and cannabis abuse, and assigned him a Global Assessment of Functioning (“GAF”) score of 40. (AR 24). The ALJ next considered the consultative psychiatric examination performed by Dr. Paula Hughson in December 2012. Id. Dr. Hughson diagnosed Mr. Mills with dysthymic disorder, soma to form disorder, and dependent avoidant personality disorder with a rule out for narcolepsy, and she assigned Mr. Mills a GAF score of 52. Id. The ALJ stated that she gave Dr. Hughson's opinion great weight because it is consistent with Dr. Hughson's interview and testing of Mr. Mills. Id. The ALJ noted that Amy Bissada, DO, performed an initial adult psychiatric diagnostic interview with Mr. Mills in November 2013, and that she diagnosed him with major depressive disorder and intermittent explosive disorder, and assigned him a GAF score of 49. Id. The ALJ stated that “GAF scores are subjective clinical impressions of the claimant's overall functioning with dubious applicability to the claimant's social and occupational functioning, ” and that a GAF score “applies only to the time when it was rendered.” (AR 25) (emphasis in original). The ALJ stated that, therefore, she gives “little weight to these GAF scores and find[s] that they do not representative [sic] of the claimant's long term functioning.” Id.

         Next, the ALJ considered the October 2014 opinions of Ms. Warwick, who found that Mr. Mills has marked limitations with respect to understanding, memory, and his ability to accept instructions and respond appropriately to criticism from supervisors, and that he has slight to moderate limitations with respect to sustained concentration and persistence, adaptation, and social interactions. (AR 25). Ms. Warwick also found that Mr. Mills has symptoms that would meet Listing 12.06. Id. The ALJ stated that she gave Ms. Warwick's opinions little weight because they are not consistent with Ms. Warwick's treatment notes, she is not an acceptable medical source, and she has not observed Mr. Mills in a work setting. (AR 25-26).

         The ALJ then considered the February 2015 opinions of Thomas Dhanens, Ph.D., who performed a psychological evaluation and diagnosed Mr. Mills with borderline intelligence, impulse control disorder, and ruled out neurasthenia and post-traumatic stress disorder. (AR 26). The ALJ stated that he gave these opinions great weight because they are consistent with Dr. Dhanens' interview and testing ...


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