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Bilton v. Berryhill

United States District Court, D. New Mexico

July 24, 2017

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



         THIS 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.


         On June 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.

         On 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 Commissioner.

         Plaintiff 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 614-53.

         On 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.


         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)).

         “The 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.

         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 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).


         Plaintiff 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 arguments.


         On 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.”[2] AR 588.

         At step 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.[3] 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.[4] AR 589.

         Moving 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.[5] 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.[6]

         After reviewing the evidence, however, the ALJ determined that the paragraph C criteria were also not met. AR 590-91.

         Before 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 co-workers.

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.

         Plaintiff 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.

         After 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[7] 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.

         V. ANALYSIS

         Plaintiff 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.

         a. 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.).

         In 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 weight.” Id.

         If the 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. ...

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