United States District Court, D. New Mexico
ORDER GRANTING PLAINTIFF'S MOTION TO REVERSE AND
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Richard Leroy
Bilton's “Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum”
(“Motion”) [ECF No. 20]. Having meticulously
reviewed the entire record, considered the parties'
arguments, and being otherwise fully advised, the Court
concludes that the Administrative Law Judge did not weigh
medical evidence in accordance with the law. Therefore, and
for the further reasons detailed below, the Court will
GRANT Plaintiff's Motion.
4, 2010, Plaintiff applied for Title II disability insurance
benefits and Title XVI supplemental security income, alleging
that his disability began on December 1, 1998. Administrative
R. (“AR”) 150-66. Plaintiff later changed his
alleged onset date to May 21, 2010. AR 819. Plaintiff's
applications were initially denied on September 15, 2010 [AR
88-95], and upon reconsideration on January 13, 2011. AR
101-104. Plaintiff then filed a written request for a hearing
and on August 24, 2011, Administrative Law Judge
(“ALJ”) Augustus Martin held a hearing in North
Charleston, South Carolina. Plaintiff testified at the
hearing and was represented by attorney Jeff Yungman. The ALJ
also heard testimony from Arthur Schmitt, an impartial
vocational expert (“VE”). AR 43-76.
September 21, 2011, the ALJ issued his decision, concluding
that Plaintiff had not been under a disability within the
meaning of the Social Security Act (“the Act”)
since the date his application was filed. AR 25-37. Plaintiff
requested the ALJ's decision be reviewed by the Appeals
Council, and, on December 31, 2012, the Appeals Council
denied his request for review. AR 1-7. Consequently, the
ALJ's decision became the final decision of the
timely appealed the Commissioner's denial of benefits in
the United States District Court for the District of New
Mexico on March 1, 2013. Bilton v. Social Security
Administration, No. 1:13-cv-201-LAM (D.N.M. May 9,
2014). The Court remanded the case with instructions that the
Appeals Council consider additional medical evidence that was
considered new, material, and related to the time period on
or before the ALJ's decision. See AR 704-20.
Upon remand, Plaintiff then received another hearing
(see AR 751-53) held on July 15, 2015 by ALJ Ann
Farris in Albuquerque, New Mexico. Plaintiff testified at the
hearing and was represented by attorney Michael Armstrong.
The ALJ also heard testimony from VE Thomas Greiner. AR
October 16, 2015, ALJ Farris issued her decision, concluding
that Plaintiff was not disabled prior to November 4, 2014,
but became disabled on that date and his disability continued
through the date of her decision. She further concluded that
Plaintiff had not been under a disability within the meaning
of the Act at any time through March 31, 2011. AR 585-604.
Plaintiff did not request review from the Appeals Council,
and consequently, the ALJ's decision became the final
decision of the Commissioner. Plaintiff timely appealed the
Commissioner's decision to this Court on February 12,
2016. Pl.'s Compl., ECF No. 1.
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)).
record must demonstrate that the ALJ considered all of the
evidence, but an ALJ is not required to discuss every piece
of evidence.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996) (citation omitted). “Rather,
in addition to discussing the evidence supporting his
decision, the ALJ also must discuss the uncontroverted
evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.”
Id. at 1010. “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's findings from being supported
by substantial evidence.” Lax, 489 F.3d at
1084. 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.
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 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 in
SUMMARY OF ARGUMENTS
challenges only those parts of the ALJ's decision that
relate to the time period between May 2010 and November 2014.
Pl.'s Mot. 5. He argues that the ALJ committed reversible
legal error for three reasons: (i) the ALJ improperly
evaluated medical opinion evidence, including the opinions of
treating physicians; (ii) the ALJ impermissibly “picked
and chose” evidence from the medical record to arrive
at a finding of non-disability; and (iii) the ALJ's step
five finding is legally deficient and not supported by
substantial evidence. Pl.'s Mot. 1-2. The Commissioner
responds by contending that the ALJ did not err when she
evaluated medical opinion evidence, and that the ALJ made
proper findings at step five. Def.'s Resp. 6-13, ECF No.
30. Because the case must be remanded for closer review and
more adequate explanation of the pertinent medical evidence,
the Court will not address Plaintiff's second and third
October 16, 2015, ALJ Farris issued a decision denying
Plaintiff's application for benefits through March 31,
2011, the date he was last insured. The ALJ did, however,
determine that Plaintiff became disabled on November 4, 2014,
and continued to be disabled through the date of her
decision. AR 603. In doing so, the ALJ conducted the
five-step sequential evaluation process. AR 585-604. At step
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since May 21, 2010, the date of
his alleged disability onset. At step two, the ALJ determined
Plaintiff had the following severe impairments: depression,
post-traumatic stress disorder (“PTSD”), pseudo
seizures, and degenerative disc disease of the cervical and
lumbar spine. The ALJ found these impairments to be severe
because they “combined to restrict the
[Plaintiff's] physical and mental abilities, and have
lasted for more than 12 months.” AR 588.
three, the ALJ concluded that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. To reach this
conclusion, the ALJ evaluated Plaintiff's impairments
under Listings 1.04, 12.04, 12.06, and 12.07. The ALJ first
evaluated Plaintiff's degenerative disc disease of the
cervical and lumbar spine under Listing 1.04 (disorders of
the spine) and found that “neither medical imaging nor
clinical examination findings indicated nerve root or spinal
cord compromise” and therefore, found that Plaintiff
did not meet the Listing. AR 589.
to Plaintiff's mental impairments, the ALJ found that
Plaintiff did not meet the requirements for Listing 12.04
(depressive, bipolar and related disorders), Listing 12.06
(anxiety and obsessive-compulsive disorders), or Listing
12.07 (somatic symptom and related disorders). The ALJ
determined that Plaintiff's mental impairments resulted
in the following limitations: “no restriction in
activities of daily living, moderate difficulties in
maintaining social functioning, moderate difficulties in
maintaining concentration, persistence or pace, and one to
two episodes of decompensation, each of extended
duration.” AR 589. Because Plaintiff's mental
impairments had not caused at least two marked limitations or
one marked limitation and repeated episodes of
decompensation, each of extended duration, the ALJ found that
the paragraph B criteria were not met. AR 590. The ALJ
also evaluated whether the evidence of Plaintiff's mental
impairments satisfied the criteria for paragraph C of
Listings 12.04 or 12.06.
reviewing the evidence, however, the ALJ determined that the
paragraph C criteria were also not met. AR 590-91.
step four, the ALJ determined that Plaintiff had the
following residual functional capacity (“RFC”)
since May 21, 2010:
[T]o perform sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a), and can occasionally climb,
balance, stoop, or crouch, but can never kneel or crawl. He
can frequently but not constantly handle and finger. He must
avoid exposure to hazardous conditions including unprotected
heights and dangerous moving machinery. He is limited to
simple work-related decisions with few workplace changes. He
should have no interaction with the general public. He is
limited to occasional, superficial interaction with
AR 591. In support of this RFC assessment, the ALJ found that
“[Plaintiff's] medically determinable impairments
might be expected to cause some of the alleged symptoms;
however, the [Plaintiff's] statements concerning the
intensity, persistence and limiting effects of these symptoms
are not entirely credible during the entire period at issue .
. . .” AR 592. To reach this determination, the ALJ
considered Plaintiff's testimony, medical opinion
evidence from fourteen different medical providers, an
opinion from Plaintiff's friend, and the record as a
whole. See AR 591-601.
previously worked as a welder and a house repairer. At step
four, the ALJ determined that since May 21, 2010, Plaintiff
was not capable of performing this past relevant work, given
his RFC. AR 601-02. At the fifth and final step, the ALJ
noted that prior to the established disability onset date,
Plaintiff was a younger individual pursuant to 20 C.F.R.
§ 404.1563. However, on November 4, 2014, his age
category changed to an individual closely approaching
advanced age pursuant to 20 C.F.R. § 416.963. The ALJ
further noted that Plaintiff has at least a high school
education and is able to communicate in English. The ALJ
added that “transferability of job skills is not
material to the determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the [Plaintiff] is ‘not disabled, ' whether or
not [he] has transferable job skills.” AR 602.
determining that Plaintiff could not return to his past work,
the ALJ asked the VE to consider whether there were jobs that
existed in the national economy for an individual with
Plaintiff's age, education, work experience, and residual
functional capacity. AR 602-03. The VE identified three jobs
that such an individual would be capable of performing,
including: clearance cutter (DOT 615.685-014), cuff folder
(DOT 685.687-014), and motor polarizer (DOT 715.687-090).
Subsequently, the ALJ concluded that prior to the established
onset date of disability, November 4, 2014, Plaintiff
“was capable of making a successful adjustment to other
work that existed in significant numbers in the national
economy.” AR 603. Therefore, the ALJ found that
Plaintiff was not disabled under the meaning of the Act from
May 21, 2010 through November 4, 2014. AR 604.
challenges the ALJ's finding of nondisability by
questioning the ALJ's method of evaluating medical
opinion evidence, including evidence from treating
physicians. Pl.'s Mot. 12-18. Generally, Plaintiff argues
that the ALJ “collapsed” the two-step inquiry for
treating physicians into a single step. Id. at 14.
Furthermore, Plaintiff specifically challenges the ALJ's
treatment of: (i) Dr. Stephen Rawe, neurosurgeon, (ii) Dr.
Mark Evanko, doctor of osteopathic medicine, and (iii) Dr.
Stephen Cheshire, psychologist. Id. at 12-18. The
Court will discuss each of these opinions in turn.
The Treating Physician Rule
“Under the regulations, the agency rulings, and our
case law, an ALJ must ‘give good reasons in [the]
notice of determination or decision' for the weight
assigned to a treating physician's opinion.”
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003) (quoting 20 C.F.R. § 404.1527(d)(2) (2016)). The
notice of determination or decision “must be
sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating
source's medical opinion and the reasons for that
weight.” Id. (quoting SSR 96-2p, 1996 WL
374188, at *5 (July 2, 1996)). When evaluating a treating
source medical opinion as to the nature or severity of an
individual's impairments, an ALJ should
“[g]enerally . . . give more weight to opinions from
[claimant's] treating sources.” 20 C.F.R. §
404.1527(d)(2). “The treating physician's opinion
is given particular weight because of his unique perspective
to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of
individual examinations, such as consultative examinations or
brief hospitalizations.” Hamlin, 365 F.3d at
1215 (citing Doyal, 331 F.3d at 762.).
reviewing the opinions of a treating physician, an ALJ must
proceed sequentially. Watkins, 350 F.3d at 1300.
First, an ALJ must consider whether the medical opinion is
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” Id.
(quoting SSR 96-2p, 1996 WL 374188, at *2). If the ALJ finds
that the medical opinion is well-supported by such
techniques, he or she must then confirm it is consistent with
other substantial evidence in the record. Id.
“[I]f the opinion is deficient in either of these
respects, then it is not entitled to controlling
opinion is not entitled to controlling weight, “the ALJ
must then consider whether the opinion should be rejected
altogether or assigned some lesser weight.”
Pisciotta, 500 F.3d at 1077. ...