United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT, UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff's “Motion
to Reverse and Remand for a Rehearing With Supporting
Memorandum” (“Motion”), filed on September
2, 2016. ECF No. 18. The Commissioner responded on November
10, 2016. ECF No. 22. Plaintiff filed no reply. Having
meticulously reviewed the entire record and the parties'
briefing, the Court finds that Plaintiff's Motion is not
well taken and that the Administrative Law Judge's
(“ALJ's”) ruling should be
AFFIRMED. Therefore, and for the further
reasons articulated below, the Court will
DENY Plaintiff's Motion.
was born on July 26, 1977, in Tucumcari, New Mexico.
Administrative R. (“AR”) 156-57. She obtained a
General Educational Development (“GED”) diploma
at the age of seventeen and worked intermittently thereafter
from 1995 to 2009. AR 164-67. Plaintiff's work history
was interrupted between 2006 and 2008, when she was
incarcerated for several convictions, including forgery. AR
49, 50. See Pl.'s Mot. 23, ECF No. 18;
Def.'s Resp. 2, ECF No. 22. Plaintiff returned to
employment following her release in 2008, but left in the
summer of 2009 as she reached the final months of pregnancy.
AR 41, 191.
filed an application for Disability Insurance Benefits
(“DIB”) on August 14, 2011, alleging disability
beginning on February 5, 2010, due to bipolar disorder. AR
187. She also applied for Supplemental Security Income
(“SSI”) on August 21, 2011. AR 156-63. The Social
Security Administration (“SSA”) denied
Plaintiff's applications initially on February 24, 2012
[AR 82, 94-96], and upon reconsideration on October 19, 2012.
AR 92. At her request, Plaintiff received a de novo
hearing before ALJ Barry O'Melinn on February 11, 2014,
at which Plaintiff, her attorney, and a vocational expert
(“VE”) appeared. AR 35-71. On April 14, 2014, the
ALJ issued his decision, finding that Plaintiff was not
disabled within the meaning of the Social Security Act
(“the Act”). AR 15-29. Plaintiff appealed to the
SSA Appeals Council, but it declined review on November 24,
2015. AR 1-3. As a consequence, the ALJ's decision became
the final decision of the Commissioner. 20 C.F.R. §
timely filed her appeal in this Court on January 27, 2016.
ECF No. 1.
advances five grounds for relief. First, she argues that the
ALJ's mental disability analysis is fraught with legal
error. Pl.'s Mot. 12-14. Second, she contends that the
ALJ improperly discounted the opinions of two consultative
psychological examiners. Id. at 14-15. Third,
Plaintiff alleges that the ALJ impermissibly failed to
incorporate certain moderate limitations assessed by
non-examining consulting psychologists into her residual
functional capacity (“RFC”). Id. at
16-17. Fourth, Plaintiff claims that the ALJ erred in his
analysis of her treating physician's opinion.
Id. at 17-20. Lastly, she argues that the ALJ's
credibility assessment is unsupported by substantial
evidence. Id. at 20-24.
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
reviews “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) (2016). 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'x 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 her
past relevant work to determine if the claimant is still
capable of performing her 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 her past work,
then she 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.
claimant cannot return to her 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
THE ALJ'S DECISION
issued his decision on April 14, 2014. AR 12. At step one, he
found that Plaintiff had not engaged in substantial gainful
activity since the alleged disability onset date of August
14, 2011. AR 17. At step two, the ALJ found that Plaintiff
suffered from the following severe impairments: (1) anxiety
disorder, (2) affective disorder, and (3) bilateral carpal
tunnel syndrome. AR 13.
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 17-19. This finding included
an analysis of Plaintiff's mental impairments, which the
ALJ found did not meet or medically equal the criteria of
Listing Sections 12.04 (affective disorders) or 12.06
(anxiety-related disorders). AR 47-49.
found that the paragraph B criteria of Listings 12.04 and
12.06 were not met “[b]ecause the
claimant's mental impairments do not cause at least two
‘marked' limitations or one ‘marked'
limitation and ‘repeated' episodes of
decompensation, each of extended duration.” AR 18. He
then explained his reasoning regarding paragraph B's four
subparts, beginning with activities of daily living. There,
the ALJ found Plaintiff to have only a mild restriction. The
ALJ looked to Plaintiff's own function statement, noting
that she mentioned having “no problems with her
personal care, such as bathing and getting dressed . . .
[and] she took care of her 2 daughters.” AR 18 (citing
AR 223-34). Furthermore, Plaintiff “stated that she
could prepare her own meals on a daily basis, and do
household chores, such as cleaning her house, doing laundry,
dusting, and vacuuming.” AR 18 (citing AR 224). As to
social functioning, the ALJ found Plaintiff to suffer
moderate difficulties. By Plaintiff's account, “she
had problems getting along with family, friends and neighbors
[and] did not interact with people because she had a fear of
people and what they were going to do to hurt her.” AR
18 (citing AR 225). The ALJ noted that these same
apprehensions also precluded Plaintiff from participating in
social activities. AR 18. Next, the ALJ turned to
Plaintiff's concentration, persistence, and pace, and
again found Plaintiff to have moderate difficulties. The ALJ
based this on Plaintiff's statement “that she could
pay attention for 30 minutes and she did not finish what she
started.” AR 18 (citing AR 225). The ALJ concluded his
paragraph B discussion by finding that Plaintiff “has
experienced no episodes of decompensation, which have been of
extended duration.” AR 18.
similarly found that the evidence in Plaintiff's case
“fails to establish the presence of the
‘paragraph C' criteria.” AR 18. The ALJ
based his finding on the fact that Plaintiff “has not
had repeated episodes of decompensation of an extended
duration, ” and the absence of any evidence in the
record to show she would decompensate if she experienced
minimal increases in mental demands or a change in
environment. AR 18. Additionally, the ALJ noted Plaintiff has
been able to function outside of a highly supportive living
arrangement. AR 18.
none of Plaintiff's impairments satisfied an applicable
Listing, the ALJ moved on to step four and assessed
Plaintiff's RFC. AR 19-27. “After careful
consideration of the record, ” the ALJ determined that
“[Plaintiff] has the residual functional capacity to
perform light work” with the following limitations:
occasional climbing of ramps and stairs and crawling; never
climbing of ropes, ladders[, ] or scaffolds; frequent
handling and fingering, bilaterally. [Plaintiff] can
understand, carry out, and remember simple instructions and
make commensurate work related decisions, respond
appropriately to supervision, coworkers and work situations;
deal with routine changes in work setting, maintain
concentration, persistence[, ] and pace for up to and
including 2 hours at a time with normal breaks throughout the
work day. She is suitable for jobs involving work primarily
with things and not people.
develop Plaintiff's RFC, the ALJ relied on two principal
grounds. First, the ALJ made an adverse credibility finding
against Plaintiff. The ALJ did so by finding that
Plaintiff's “statements concerning the intensity,
persistence[, ] and limiting effects” of her symptoms
were “not entirely credible.” AR 21. He recounted
Plaintiff's self-described allegations of bipolar
disorder, which she claimed “affected her ability to
complete tasks and get along with others, ” while also
preventing her from leaving the house, as she could not trust
those she met outside of the house. AR 19. “Despite
these allegations, ” the ALJ opined, Plaintiff
“[takes] care of her 2 daughters” and had
“no problems with her personal care, such as bathing or
getting dressed.” AR 19-20. The ALJ also recalled
Plaintiff's testimony that “she had left her job as
a cashier at Frontier . . . shortly before giving birth to
her child.” AR 20. This led the ALJ to reason that
Plaintiff “was able to perform relatively demanding
work and that she most likely stopped working for reasons not
related to her allegedly disabling impairments.” AR 20.
In the ALJ's estimation, these activities of daily living
were “not limited to the extent one would expect, given
the complaints of disabling symptoms and limitations, which
weakens her credibility.” AR 20.
also evaluated the third party statements of Plaintiff's
parole officer, fiancée, and friend as part of the
credibility analysis. He first reviewed the statement of
Plaintiff's parole officer, Jennifer Abers, who in 2008
wrote that Plaintiff “had been in full compliance with
her parole orders, ” including attending “all of
her meetings” and maintaining “clean urinary
analysis, counseling compliance, curfew compliance, and work
compliance.” AR 20 (citing AR 255). Next, the ALJ
turned to Plaintiff's fiancée, Mariano Zamora, who
completed a form entitled “Function Report - Adult -
Third Party” on September 11, 2012. AR 213-20. Therein,
the ALJ observed that Mr. Zamora “stated that
[Plaintiff] had no problem taking care of her personal care,
such as bathing and getting dressed.” AR 20 (citing AR
214). The ALJ also noted that Mr. Zamora believed Plaintiff
could: (1) prepare her own meals on a daily basis; (2) do
some household chores, including cleaning, laundry, and
cooking; (3) use public transportation and go shopping; and
(4) follow both written and spoken instructions well. AR 20.
Lastly, the ALJ discussed the testimony of Plaintiff's
friend, Erma Sedillo. AR 21. Ms. Sedillo testified before the
ALJ that she had known Plaintiff for seven years, and saw her
three to four times per month. As part of that friendship,
Ms. Sedillo testified that she took Plaintiff shopping and
assisted Plaintiff in obtaining fully subsidized housing.
Although the ALJ noted that Ms. Sedillo felt Plaintiff's
“symptoms have gotten worse” and that Plaintiff
“had bad panic and anxiety attacks, ” the ALJ
discounted these statements, as he concluded they might be
“colored by affection for [Plaintiff] and a natural
tendency to agree with the symptoms and limitations
[Plaintiff] alleges.” AR 21. Collectively, the ALJ drew
on these third-party statements to support his general
finding that Plaintiff's “symptoms may not have
been as serious as has been alleged with this
application.” AR 20.
concluded his credibility findings with a comprehensive
review of the rationale supporting his adverse finding. He
explained that Plaintiff “was able to work as a
condition of her parole until she gave birth to her child . .
. [and] [t]here is no indication her condition worsened after
this time.” AR 21. The ALJ also highlighted that
Plaintiff “has been convicted of forgery and passing
bad checks . . . [which] damage[s] her credibility.” AR
22. He reasoned that Plaintiff “has earned 70 college
credits, ” which he believed to be “inconsistent
with the very low testing reflected in her consultative
exams, ” and at odds with her “quite
articulate” description of her further ineligibility
for federal Pell grants. AR 22. The ALJ similarly took
exception to Plaintiff's claim of debilitating carpal
tunnel syndrome, as she “has never had the recommended
nerve conduction study, ” since she “missed her
f[ir]st appointment” and “was too busy to
wait” for her second appointment. AR 22. The ALJ felt
that this, combined with “the fact she never
rescheduled” the appointment, undermined
Plaintiff's “credibility as a whole.” AR 22.
Ultimately, the ALJ found that the aggregate facts
“undermine [Plaintiff's] credibility and compel[ ]
the conclusion that her lack of work owes to her criminal
history, lack of job skills[, ] and the fact she must care
for her young children, as opposed to any reason related to
disability.” AR 22. Moreover, he found that
Plaintiff's lack of credibility “impacts the value
of various medical source opinions in the record, as these
provide[r]s relied at least in part on [Plaintiff's]
reporting.” AR 22.
recognizing that Plaintiff's reporting could impact the
medical opinions of record, the ALJ began to evaluate each
opinion in turn. Specifically, the ALJ weighed five separate
medical opinions - one from Plaintiff's treating
psychologist, two from consultative examiners, and two from
non-examining state agency consultants.
Rick Wilson, Ph.D., M.D.
completely discounted the opinion of Plaintiff's treating
psychologist, Dr. Rick Wilson, Ph.D., M.D. Dr. Wilson began
treating Plaintiff on April 9, 2013, and saw her bimonthly
thereafter. AR 26. The ALJ remarked that on February 11,
2014, Dr. Wilson completed a mental medical source statement,
wherein he ascribed numerous limitations to Plaintiff,
including marked limitations in: (1) carrying out detailed
instructions; (2) maintaining attention and concentration for
extended periods of time; (3) performing activities within a
schedule; (4) maintaining regular attendance; and (5) being
punctual within customary tolerances. AR 27 (citing AR
343-44). The ALJ also noted that Dr. Wilson assigned moderate
limitations in Plaintiff's ability to: (1) remember
locations and work-like procedures; (2) understand and
remember very short and simple instructions; (3) remember
detailed instructions; (4) interact with the general public;
and (5) get along with coworkers or peers without distracting
them or exhibiting behavioral extremes. AR 27 (citing AR
Wilson also completed two additional checklists concerning
Plaintiff's mental functions. The first of these
documented Dr. Wilson's assessment of Plaintiff's
symptoms under Listing 12.04 (affective disorders), while the
second did the same for Listing 12.08 (anxiety-related
disorders). See AR 345-46. On the first of these two
worksheets, Dr. Wilson noted that Plaintiff:
had a medically documented history of chronic affective
disorder of at least 2 years duration that has caused more
than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by
medication or psychosocial support and a residual disease
process that has resulted in such marginal adjustment that
even a minimal increase in mental demand or change in the
environment would be predicted to cause the individual to
decompensate or a current history of 1 or more years
inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an
AR 27 (citing AR 345). The ALJ considered these findings so
suspect that he declined further discussion of the second
worksheet. Instead, the ALJ communicated his sharp
disagreement with Dr. Wilson's opinion, noting that
Plaintiff “has never been hospitalized or experienced
any episodes of decompensation.” AR 27. Moreover, he
highlighted that Plaintiff “takes care of her 2
children and she was not living [ ] outside a supportive
living arrangement.” AR 27. “Therefore, ”
the ALJ concluded, “the opinion of Dr. Wilson is given
no weight, due to the fact that his opinion contrasts sharply
with other evidence in the record and with [Plaintiff's]
demonstrated abilities.” AR 27.
the ALJ's critique did not end there. To the contrary,
the ALJ also stated that Dr. Wilson's opinion
“suffers by virtue of the fact that the [d]octor relied
at least in part on [Plaintiff's] unreliable
reporting.” AR 27. Even more notably, the ALJ reasoned
that “Dr. Wilson's opinion [is] also entitled to no
weight because the record[ ] does not contain his underlying
treatment notes.” AR 27. The ALJ went on to explain,
“[t]he record indicates that [Plaintiff] refused to
release her records. [Plaintiff's] attorney indicated at
the hearing that he had consent from [Plaintiff] to release
the records and would supply them. However, this has not
occurred.” AR 27. These facts, and particularly the
lack of Dr. Wilson's treatment notes, led the ALJ to find
his opinion “of no value.” AR 27.
Louis Wynne, Ph.D.
assigned little weight to the opinion of consultative
examining psychologist Dr. Louis Wynne, Ph.D. AR 25. Dr.
Wynne examined Plaintiff on November 23, 2011, and observed
that Plaintiff “evinced no unusual mannerisms . . .
spoke clearly but softly . . . [and] there was no evidence of
confusion, tangentiality, circumstanti[ality], or
evasion.” AR 25. Following his examination, Dr. Wynne
diagnosed Plaintiff with depression, methamphetamine abuse in
remission, cognitive disorder on a “rule out”
basis, and cognitive impairment due to head injury. AR 25. He
further determined that Plaintiff had a Global Assessment of
Functioning Score (“GAF”) score of
AR 25. The ALJ explained that such a score “indicates
serious symptoms or serious difficulty in social,
occupational, or school functioning.” AR 25. The ALJ
noted that, in tandem with this GAF score, Dr. Wynne also
determined that Plaintiff “could not remember and carry
out basic written instructions and her concentration and
ability to persist at simple work tasks were at least mildly
impaired.” AR 25. Additionally, the ALJ recounted Dr.
Wynne's belief that Plaintiff “would have
difficulty interacting with her coworkers and supervisors . .
. [and] adapting [to] changes in the workplace.” AR 25.
concluded that Dr. Wynne's opinion “contrasts
sharply with other evidence in the record and
[Plaintiff's] demonstrated abilities.” AR 26. He
explained that although Dr. Wynne “determined that
[Plaintiff] could not follow instructions . . . [Plaintiff]
testified she had approximately 70 college credits.” AR
25. Similarly, despite Dr. Wynne's finding that Plaintiff
would have numerous difficulties in the workplace, the ALJ
emphasized that Plaintiff “worked as a waitress”
as a condition of her parole, and the job “require[d]
the ability to handle money and interact with the
public.” AR 25-26. Based on these discrepancies, the
ALJ accorded Dr. Wynne's opinion little weight.
Eligio Padilla, Ph.D.
also assigned “little weight” to the opinion of
consultative examining psychologist Eligio Padilla, Ph.D.,
who examined Plaintiff on February 16, 2012. AR 26. At the
outset, the ALJ noted that Plaintiff had been referred to Dr.
Padilla for the limited purpose of an IQ test. AR 26. In
keeping with that referral, Dr. Padilla administered the
Wechsler Adult Intelligence Scale - Fourth Edition
(“WAIS-IV”) to Plaintiff. AR 26. Thereafter, Dr.
Padilla calculated that Plaintiff's full scale IQ score
was 69. AR 26. Based on that score, Dr. Padilla reasoned that
Plaintiff “was functioning cognitively in the extremely
low range of intellectual abilities, as measured by the
WAIS-IV . . . [and] her overall thinking and reasoning
abilities exceeded those of only approximately 2% of
individuals her age.” AR 26. Therefore, Dr. Padilla
further opined that Plaintiff “was likely to experience
great difficulty keeping up with her peers in a wide variety
of situations that required thinking and reasoning
abilities” and that Plaintiff's prognosis
“was guarded, at best, and it was more likely
poor.” AR 26.
accorded “little weight” to Dr. Padilla's
opinion, as he found that the opinion again contrasted
“sharply with other evidence in the record.” AR
26. Specifically, the ALJ found Dr. Padilla's conclusions
to be in conflict with Plaintiff's testimony “that
she had completed 70 hours of college credits and that she
was better at taking online classes than participating in the
classroom.” AR 26. In the ALJ's opinion, this
divergence rendered Dr. Padilla's opinion “less
persuasive.” AR 26.
Richard Reed, Ph.D.
consulting psychologist Dr. Richard Reed, Ph.D., reviewed
Plaintiff's medical file at the initial stage and
completed both a “Psychiatric Review Technique”
(“PRT”) and Mental Residual Functional Capacity
Assessment (“MRFCA”) on February 23, 2012. AR 24.
Among his various findings, the ALJ observed that Dr. Reed
believed Plaintiff “could understand, remember and
carry out simple instructions, make simple decisions, attend
and concentrate for 2 hours at a time, interact adequately
with coworkers and supervisors, and respond appropriately to
changes in a routine work setting.” AR 24. Even so, Dr.
Reed “noted that [Plaintiff's] anxiety issues might
preclude her from working with the public, ” and that
“she would likely do best with repetitive work and [ ]
should probably not work with the general public.” AR
24. The ALJ considered these findings, but stressed that Dr.
Reed's conclusions “support a finding of ‘not
disabled.'” AR 24. Ultimately, the ALJ accorded Dr.
Reed's opinion “great weight” as he found the
opinion persuasive, and “well supported by explanation
and by the medical evidence.” AR 24.
Jill Blacharsh, M.D.
Jill Blacharsh, M.D., served as the second non-examining
psychologist to review Plaintiff's file. AR 24-25. She
completed her case analysis regarding Plaintiff's mental
condition on October 18, 2012. AR 24. The ALJ noted that
during Dr. Blacharsh's examination of the record at the
reconsideration stage, “there were no new allegations .
. . no updated sources[, ] and only 1 new medical source of
information.” AR 24. Although the new source of
information, Sage Neurosciences, indicated Plaintiff
“was recently feeling overwhelmed by her anxiety”
and that Plaintiff “had been physically and emotionally
abused by her significant other, ” the updated medical
record nonetheless “appeared consistent with [Dr.
Reed's] prior assessment and did not describe any
significant decline in [Plaintiff's] mental
function.” AR 24. Therefore, Dr. Blacharsh also
recommended a ...