United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT, Judge
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.
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.
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).
timely filed her appeal with this Court on March 24, 2016.
ECF No. 1.
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.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. 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.”).
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
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).
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
Sequential Evaluation Process
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).
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
THE ALJ'S DECISION
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.
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). 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.
the ALJ considered Plaintiff's physical impairments under
relevant Listings. She began by evaluating Plaintiff's
lower back pain under Listing 1.04 for disorders of the spine.
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
then considered Plaintiff's Type I diabetes under Listing
9.00 for endocrine disorders. Looking specifically to Listing
9.00(B)(5),  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.
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.
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,  “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.
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
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.
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
R. Paxton, M.D. - significant weight
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.
concluded on the MRFCA that Plaintiff had no significant
limitation in the four categories and twenty subcategories
measured by the MRFCA,  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;
(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.
Robert Krueger, Ph.D. - moderate weight
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.
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.
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).
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.
Elizabeth Chiang, M.D. - moderate weight
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. 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
(1) Subcategory (C)(12) - Social interaction: the ability to
interact appropriately ...