United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate-Judge.
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
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). 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.
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)).
Applicable Law and Sequential Evaluation Process
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. §§
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 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.
Background and Procedural History
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. 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.
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.
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.
Ms. Jones's Claims
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).
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
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.
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. §§
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.
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. ...