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 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.
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.
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
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
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.
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).
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).
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
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).
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 ...