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McDaniel v. Berryhill

United States District Court, D. New Mexico

July 12, 2017

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



         THIS MATTER is before the Court on Plaintiff's “Memorandum in Support of Her Motion to Reverse and [Remand] the Commissioner's Final Decision” (“Motion”), filed on October 7, 2016. ECF No. 12. The Commissioner responded on December 9, 2016. ECF No. 17. Plaintiff replied on January 3, 2017. ECF No. 18. Having meticulously reviewed the briefing and the entire record, the Court finds that Plaintiff's Motion is well taken and that the Administrative Law Judge's (“ALJ's”) ruling should be REVERSED and REMANDED. Therefore, and for the further reasons articulated below, the Court will GRANT Plaintiff's Motion.

         I. BACKGROUND

         Plaintiff was born on December 17, 1991, in the Stanford University Children's Hospital in Palo Alto, California. Administrative R. (“AR”) 1034. In 2010, Plaintiff graduated from a California high school and received a regular diploma, although her mother reports that she received special services. AR 36, 1234. She has no past relevant work. AR 41, 289.

         Plaintiff filed an application for Child Disability Benefits (“CDB”) and Supplemental Security Income (“SSI”) on August 15, 2011. AR 103, 117. Plaintiff claimed disability beginning on December 17, 1991 (later amended to January 1, 2010), based on fetal alcohol and cocaine syndromes, uterine growth retardation, attention deficit hyperactivity disorder (“ADHD”), mood disorder (not specified), psychosocial stressors, scoliosis, learning disorder (not specified), headaches, and dizziness. AR 32, 103, 117. Plaintiff had previously filed CDB and SSI claims in 2010 which were denied. AR 104, 118. The Social Security Administration (“SSA”) denied Plaintiff's 2011 application initially on January 6, 2012 [AR 116, 130], and upon reconsideration on October 11, 2012. AR 146, 162. At her request, Plaintiff received a de novo hearing before ALJ Michelle Lindsay on May 2, 2014, at which Plaintiff, her attorney, her mother, and a vocational expert (“VE”) appeared. AR 51-102. On August 5, 2014, the ALJ issued her decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 20-44. Plaintiff appealed to the SSA Appeals Council, but it declined review on January 19, 2016. AR 1-3. As a consequence, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2017).

         Plaintiff timely filed her appeal with this Court on March 24, 2016. ECF No. 1.


         Plaintiff advances two grounds for relief. First, she argues that the ALJ erred by impermissibly “picking and choosing” only those portions of uncontradicted medical opinions that led to a finding of nondisability. Pl.'s Mot. 7-11, ECF No. 12. Additionally, she alleges that substantial evidence does not support the ALJ's step five determination. Id. at 12-14.


         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[1] The Court's review of that final agency decision is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”).

         The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 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). 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. Substantial evidence does not, however, require a preponderance of the evidence. See 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)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         As for the review of the ALJ's legal decisions, the Court examines “whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed “to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).

         Ultimately, if substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.

         B. Sequential Evaluation Process

         The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's residual functional capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of his past relevant work to determine if the claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).

         If the claimant cannot return to his past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).


         The ALJ issued her decision on August 15, 2014. AR 44. At step one, she found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of January 1, 2010. AR 32. At step two, the ALJ found Plaintiff's Type I diabetes mellitus and scoliosis to be severe impairments. AR 22. In contrast, the ALJ found Plaintiff's mood disorder to be non-severe. AR 22.

         At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 23-24. The ALJ began with Plaintiff's mood disorder, which she considered under “the four broad functional areas set out in the disability regulations for evaluating mental disorders” and in Listing 12.00(C).[2] In the first functional area, activities of daily living (“ADLs”), the ALJ found Plaintiff had no limitation. She based this finding on Plaintiff's wide variety of ADLs, which included preparing meals on a daily basis, vacuuming, doing laundry, washing dishes, driving a car, shopping for groceries, walking the dog, feeding horses, and bathing and dressing herself. AR 23. In the second area, social functioning, the ALJ found that Plaintiff had “mild limitation.” AR 23. The ALJ reached this conclusion based on Plaintiff's admission that she “spent time with others on the telephone or on the computer, ” but weighed it alongside Plaintiff's competing admission that she “had problems getting along with family, friends[, ] and neighbors” and that “she “was unstable and concerned about what others were doing.” AR 23. Additionally, the ALJ considered Plaintiff's mother's statement that it was difficult for Plaintiff to make friends. AR 23. Third, as to Plaintiff's concentration, persistence, and pace, the ALJ also found Plaintiff to have a mild limitation. She based this on Plaintiff's reports that “she could follow written instructions better than verbal instructions” and “had a hard time following and remembering verbal instructions.” AR 23. Lastly, regarding episodes of decompensation, the ALJ found “little in the record or [Plaintiff's] testimony that would indicate the claimant has suffered from any episodes of decompensation.” AR 23. Thus, because Plaintiff's “medically determinable mental impairment causes no more than ‘mild' limitation in any of the first three functional areas and ‘no' episodes of decompensation which have been of extended duration, ” the ALJ found that Plaintiff's mental impairment was both non-severe and insufficient to qualify as presumptively disabling under a relevant Listing. AR 23-24.

         Next, the ALJ considered Plaintiff's physical impairments under relevant Listings. She began by evaluating Plaintiff's lower back pain under Listing 1.04[3] for disorders of the spine.

         The ALJ found that “[t]he medical evidence does not establish the requisite evidence of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis” required to satisfy the Listing. AR 24. “Moreover, ” she opined, “the medical evidence does not support [a finding that Plaintiff's] back disorder has resulted in an inability to ambulate effectively, as defined in [Listing] 1.00(B)(2)(b).” AR 24. Accordingly, the ALJ found Plaintiff did not meet or medically equal the requirements of Listing 1.04.

         The ALJ then considered Plaintiff's Type I diabetes under Listing 9.00 for endocrine disorders. Looking specifically to Listing 9.00(B)(5), [4] the ALJ found that “the medical evidence failed to support the necessary requirements or severity level for that listing.” AR 24. “Therefore, ” she concluded, Plaintiff's “diabetes does not meet the listing.” AR 24.

         Because none of Plaintiff's impairments satisfied an applicable Listing, the ALJ moved on to step four and assessed Plaintiff's RFC. AR 24-43. “After careful consideration of the entire record, ” the ALJ determined that “[Plaintiff] has the residual functional capacity to perform the full range of light work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).” AR 24.

         Adverse Credibility Finding

         To develop Plaintiff's RFC, the ALJ relied on two principal grounds. First, the ALJ rendered an adverse credibility finding against Plaintiff, opining that Plaintiff's “statements concerning the intensity, persistence[, ] and limiting effects of [her] symptoms are not entirely credible.” AR 26. Several bases informed the ALJ's findings, and chief among them were Plaintiff's own statements. The ALJ recounted that, on an undated disability report [AR 309-16], Plaintiff claimed that she suffered from “fetal alcohol, fetal cocaine, uterine growth retardation, attention deficit/hyperactivity disorder (ADHD), mood disorder, psychosocial stressors, scoliosis, learning disorder, headaches and dizziness which limits her ability to work.” AR 25. Plaintiff alleged that these conditions affected, among other things, [5] “her memory, completing tasks, her concentration, following instructions, [ ] getting along with others, ” and moreover, that “her diabetes affected her memory, concentration[, ] and completing tasks.” AR 25. “Despite these allegations, ” the ALJ remarked, Plaintiff “also stated on the same function report that she could prepare her own meals on a daily basis, fold clothes, put dishes away[, ] and pull weeds.” AR 25. In the same report, Plaintiff also “stated she could go shopping in stores for groceries and clothes and she could drive a car.” AR 25. In a separate function report dated August 26, 2012 [AR 345-52], Plaintiff additionally noted “she had no problems with her personal care, such as getting dressed or taking a bath . . . [and] that her hobbies and interests included horses, goats, music, IPOD and being on the computer, ” and further, “that she did those hobbies on a daily basis and she did them fairly well.” AR 25. The ALJ also suggested Plaintiff “has not been entirely compliant in taking prescribed medications, which suggests that the symptoms may not have been as limiting as [Plaintiff] has alleged in connection with this application, which weakens her credibility.” AR 25.

         Other inconsistencies in Plaintiff's statements factored into the ALJ's credibility finding. Among these, the ALJ recalled Plaintiff's testimony that she stopped riding horses in November 2013, and measured that testimony against “an initial assessment comp[le]ted on June 3, 2014, [where Plaintiff] stated that her current exercise habits included occasional walks or riding horses.” AR 26 (citing AR 1220). Plaintiff's testimony also conflicted with that of her mother, who “testified that her daughter still rode horses, but [not] as much as she used to.” AR 26. In a similar instance, Plaintiff testified “that she barely used the computer to check her email and that was about it.” AR 26. The ALJ observed, however, that “it was noted in the medical evidence that [Plaintiff] had done [computer] research because she thought she had Asperger's syndrome instead of attention deficit disorder or obsessive-compulsive disorder.” AR 226 (citing AR 1219). The same document recorded that Plaintiff had “printed off some information on Asperger's from the Internet and she presented with a list of symptoms she had checked off.” AR 26. Although the ALJ cautioned that these inconsistent statements “may not be the result of a conscious intention to mislead, ” nevertheless, she opined, “the inconsistencies suggest the information provided by the claimant generally may not be entirely reliable.” AR 26.

         The ALJ also reasoned that Plaintiff's credibility was diminished by the declarations of her mother, Mary McDaniel. Ms. McDaniel completed a Third Party Function Report on August 26, 2012 [AR 337-41], and therein ratified many of her daughter's statements, including the fact that Plaintiff “did not have any problems with her personal care, such as getting dressed or taking a bath.” AR 25. Ms. McDaniel also observed that Plaintiff “could prepare her own meals on a daily basis, do laundry, some weeding . . . vacuum[ ] her room . . . drive a car, and go shopping in stores for items.” AR 25. She also recognized that Plaintiff could “go horseback riding and that she attended church activities.” AR 25.

         Lastly, the ALJ looked to other portions of the record to substantiate an adverse credibility finding. In one example, the ALJ looked to Plaintiff's wage records, which demonstrated that Plaintiff had earned $1, 492.02 in 2011, $2, 034.02 in 2012, and $6, 065.48 in 2013. AR 25 (citing AR 254-56). In the ALJ's opinion, “[t]he fact that the impairments did not prevent the claimant from working at that time strongly suggests that it would not currently prevent her from working now, which weakens her credibility.” AR 25. In another instance, the ALJ highlighted a disability report evincing that Plaintiff left her place of employment in 2011 not on account of her impairments, but because of a residential move. AR 26 (citing AR 298). The ALJ opined that “this shows the [Plaintiff] stopped working for reasons not related to the allegedly disabling impairments.” AR 26. For these and the other reasons detailed above, the ALJ returned an adverse credibility determination against Plaintiff.

         Medical Opinions

         Dr. R. Paxton, M.D. - significant weight

         Along with Plaintiff's adverse credibility finding, the ALJ relied on a host of medical opinions to determine Plaintiff's RFC. In fact, the ALJ ultimately drew on no less than five medical opinions just to assess Plaintiff's mental impairments. The first of these was the opinion of Dr. R. Paxton, M.D., a psychiatrist and specialist in disability determination. On December 10, 2010, Dr. Paxton completed a standard SSA “Psychiatric Review Technique” (“PRT”) form as well as a Mental Residual Function Capacity Assessment (“MRFCA”). AR 863-876. After reviewing Plaintiff's medical history in light of her anxiety-related disorders [AR 863], Dr.

         Paxton concluded on the MRFCA that Plaintiff had no significant limitation in the four categories and twenty subcategories measured by the MRFCA, [6] with three exceptions. These three exceptions - each of which was identified as a moderate limitation - included:

(1) Subcategory (A)(3) - Understanding and memory: the ability to understand and remember detailed instructions;
(2) Subcategory (B)(5) - Sustained concentration and persistence: the ability to carry out detailed instructions; and
(3) Subcategory (C)(12) - Social interaction: the ability to interact appropriately with the general public.

AR 874-75. Dr. Paxton determined that Plaintiff “has the capacity to do simple level work at two hour intervals in a non[-]public setting. Concentrative capacity is sufficient. Adaptive capacity is also sufficient.” AR 876. The ALJ assigned significant weight to Dr. Paxton's opinion, concluding that his findings were “persuasive . . . as they are well supported by explanation and by the medical evidence, and they reflect consideration of the entire medical record[ ] by a specialist who is familiar with [SSA] regulations.” AR 36.

         Dr. Robert Krueger, Ph.D. - moderate weight

         Consultative examining psychologist Dr. Robert Krueger, Ph.D., examined Plaintiff on December 1, 2011. AR 1011-17. Later, on April 16, 2014, he completed a questionnaire concerning Plaintiff's mental impairments for the instant disability review. AR 1142-44.

         At the 2011 consultation, Dr. Krueger administered the Wechsler Adult Intelligence Scale - Fourth Edition (“WAIS-IV”) test and determined that Plaintiff had a full scale IQ of 108. AR 37. Plaintiff “scored at an average to high average level with both verbal and performance skills[, ] . . . did well with vocabulary and work comprehension skills[, ] and she also did well with abstract reasoning.” AR 37. Although the doctor noted that Plaintiff “did not appear to qualify for having any major cognitive disorder at that time, ” he did “diagnose[ ] the claimant with a mood disorder - not otherwise specified.” AR 37.

         Along with the diagnosis of mood disorder, Dr. Krueger “determined that [Plaintiff] had some significant functional impairment.” AR 37. This derived primarily from Plaintiff's Global See AR 112-14, 126-28, 142-45, 159-61, 874-75. Assessment of Functioning (“GAF”) score, which Dr. Krueger assessed to be in the range of 50 to 55. A GAF score in that range “indicates serious to moderate symptoms or any serious impairment to moderate [impairment] on social, occupational[, ] or school functioning.” AR 37 (citation omitted). Thus, while Dr. Krueger found that Plaintiff “did have the intellectual capacity to understand and remember either simple or complex work instruction with little or no impairment, ” he noted that Plaintiff “appeared to be somewhat socially immature, ” and, at the time of the evaluation, “might not possess independent living skills.” AR 37-38. Dr. Krueger further found Plaintiff to have moderate impairments with: (1) maintaining pace and persistence in a work environment, (2) in relationships with coworkers, supervisors, and the general public, (3) traveling to distant places alone, and (4) being aware of and reacting appropriately to dangers in work environments. AR 1016. Notably, Dr. Krueger also concluded that “[b]ecause of behavior problems and mood disorder, [Plaintiff] may have moderate and at times marked impairment with following instructions.” AR 1016 (emphasis added).

         When he completed a questionnaire on Plaintiff's mental impairments in 2014, Dr. Krueger opined Plaintiff “had limitations in her ability to perform work on a full time basis and that her psychologically based symptoms would cause problems for her maintaining regular attendance and being punctual within customary tolerances.” AR 38. He further concluded that Plaintiff would miss work or arrive late an average of five days per month. AR 38. The ALJ assigned only moderate weight to the opinion of Dr. Krueger, reasoning that he “only saw [Plaintiff] once, and he based his answers on the questionnaire on that [one] meeting.” AR 38.

         Dr. Elizabeth Chiang, M.D. - moderate weight

         The ALJ also accorded moderate weight to the opinion of non-examining state medical consultant Dr. Elizabeth Chiang, M.D. AR 38. On January 4, 2012, at the initial determination stage of the instant disability claim, Dr. Chiang reviewed Plaintiff's medical records and assessed her MRFCA in the four broad categories developed by the SSA along with their twenty subcategories.[7] AR 112-14, 126-28. In many of these, Dr. Chiang either found Plaintiff to suffer no limitations, or that no evidence existed to support a limitation. AR 112-13, 126-27. She did, however, assess the following four moderate limitations:

(1) Subcategory (C)(12) - Social interaction: the ability to interact appropriately ...

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