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Jones v. Berryhill

United States District Court, D. New Mexico

June 15, 2017

NANCY A. BERRYHILL[1], Acting Commissioner of the Social Security Administration, Defendant.


          Laura Fashing United States Magistrate-Judge.

         THIS MATTER comes before the Court on plaintiff Lora Jeanne Jones's Motion to Reverse and Remand (Doc. 15), which was fully briefed August 29, 2016. Docs. 19, 21, 22. The parties consented to my entering final judgment in this case. Docs. 5, 7, 9. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to apply the correct legal standards in weighing the opinion of Dr. Scott R. Walker, a non-examining agency psychiatrist. I therefore GRANT Ms. Jones's motion and remand this case to the Commissioner for proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A 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.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole 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] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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 (3) the impairment(s) either meet or equal one of the Listings[3] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that 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. Id.

         III. Background and Procedural History

         Ms. Jones was born in 1974, completed two years of college, and worked in the past as a cashier, receptionist, and call center employee. AR 189, 193, 330.[4] Ms. Jones filed applications for disability insurance benefits and supplemental security income on January 18, 2012, alleging disability since May 1, 2009 due to post-traumatic stress disorder (“PTSD”), depression, anxiety, and attention deficit disorder (“ADD”). AR 169-74, 175-78, 192. The Social Security Administration (“SSA”) denied her claims initially on March 30, 2012. AR 108-11. The SSA denied her claims on reconsideration on September 24, 2012. AR 117-19, 120-23. Ms. Jones requested a hearing before an ALJ. AR 124-26. On June 12, 2013, ALJ Ben Willner held a hearing. AR 36-65. ALJ Willner issued his unfavorable decision on October 23, 2013. AR 17- At step one, the ALJ found that Ms. Jones had not engaged in substantial, gainful activity since May 1, 2009. AR 22. Because Ms. Jones had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. Id. At step two, the ALJ found that Ms. Jones suffered from the following severe impairments: ADD, depression, anxiety disorder, and PTSD. Id. At step three, the ALJ found that none of Ms. Jones's impairments, alone or in combination, met or medically equaled a Listing. AR 22-24. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Jones's RFC. AR 24-29. The ALJ found that:

[C]laimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she is limited to work that requires her to understand, remember, and carry out only simple instructions and make simple decisions, and working primarily with things rather than with people. She can attend, concentrat[e], maintain pace and persistence on this limited range of tasks for two (2) hours at a time before taking a normally scheduled break, and then returning to work, throughout the workday.

         AR 24.

         At step four, the ALJ concluded that Ms. Jones was unable to perform her past relevant work as a receptionist. AR 29. The ALJ found Ms. Jones not disabled at step five, concluding that she still could perform jobs that exist in significant numbers in the national economy, such as an addresser, warehouse checker, and bundle clerk in a laundry. AR 30.

         Ms. Jones requested review by the Appeals Council, which, on February 26, 2015, denied the request. AR 9-16. Ms. Jones requested an extension of time to file her appeal. AR 4-7. The SSA granted Ms. Jones an additional 30 days from August 28, 2015 to file her appeal. AR 1-2. Ms. Jones timely appealed to this Court on September 22, 2015. Doc. 1.

         IV. Ms. Jones's Claims

         Ms. Jones raises several arguments for reversing and remanding this case: (1) the ALJ erred by failing to incorporate portions of Dr. Walker's medical opinion into her RFC; (2) the ALJ impermissibly picked and chose from the limitations noted by consultative psychiatric examiner Dr. Hughson; (3) the ALJ failed to provide adequate reasons for rejecting the opinions of treating therapists Ortiz and Gallegos; (4) the ALJ failed to express the RFC in terms of work-related mental activities; (5) the ALJ failed to perform the required analysis under Trimiar for cases with low numbers of jobs in the national economy. Because I remand based on the ALJ's failure to adequately address the limitations noted in the opinion of Dr. Walker, I do not address the other alleged errors, which “may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         V. The ALJ Erred by Failing to Either Incorporate, or Explain Why He Rejected, Limitations Noted in the Medical Report of Non-Examining State Agency Psychiatrist Dr. Scott Walker.

         Ms. Jones argues that the ALJ committed legal error by failing to incorporate, without explanation, several moderate limitations assessed by Dr. Scott Walker into her RFC. Doc. 15 at 12-14. The Commissioner argues that the ALJ is not required to incorporate or reject the limitations noted in Section I of Dr. Walker's Mental Residual Functional Capacity Assessment (“MRFCA”), as only Section III contains the doctor's actual “mental residual functional capacity assessment.” Doc. 19 at 16-17. For the reasons discussed below, I find that the ALJ committed legal error in assessing the opinion of Dr. Walker.

         Although an ALJ need not discuss every piece of evidence, he or she is required to discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). Specifically, when assessing a plaintiff's RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996). “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7. “[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on [a specific] functional capacity” because “the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (alteration and internal quotation marks omitted)); see also Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (“exact correspondence between a medical opinion and the mental RFC is not required”). Nevertheless, “[a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.” Chapo, 682 F.3d at 1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). An ALJ “must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). Ultimately, an ALJ is required to weigh medical source opinions and to provide “appropriate explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL 374183, at *5; see also Keyes-Zachary, 695 F.3d at 1161 (same) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)).

         In 2007, the Tenth Circuit Court of Appeals decided two cases that control here. First, in Haga, the court held that an ALJ erred in failing to explain why he adopted some of a consultative examiner's (“CE”) restrictions but rejected others. 482 F.3d at 1208. “[T]he ALJ did not state that any evidence conflicted with [the CE's] opinion or mental RFC assessment. So it is simply unexplained why the ALJ adopted some of [the CE's] restrictions but not others.” Id. The court remanded the case “so that the ALJ [could] explain the evidentiary support for his RFC determination.” Id. Later in 2007, in Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007), the Tenth Circuit expressly applied Haga and its reasoning to the opinions of non-examining physicians.

         The ALJ assigned “great weight” to the medical source opinion of Dr. Scott Walker, a non-examining state agency psychiatrist. AR 28. In Section I of his September 21, 2012 MRFCA, Dr. ...

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