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Sorge v. Berryhill

United States District Court, D. New Mexico

August 30, 2017

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



         THIS 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.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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. § 422.210(a) (2016).

         Plaintiff timely filed her appeal in this Court on January 27, 2016. ECF No. 1.


         Plaintiff 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.


         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 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).

         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) (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. 1987).

         If the 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 detail).


         The ALJ 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.

         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 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.

         The ALJ found that the paragraph B criteria of Listings 12.04 and 12.06[2] 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.

         The ALJ similarly found that the evidence in Plaintiff's case “fails to establish the presence of the ‘paragraph C' criteria.”[3] 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.

         Because 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.

AR 19.

         To 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.

         The ALJ 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.

         The ALJ 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.

         After 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.

         Dr. Rick Wilson, Ph.D., M.D.

         The ALJ 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 343-44).[4]

         Dr. 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 arrangement.

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.

         Yet, 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.

         Dr. Louis Wynne, Ph.D.

         The ALJ 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 48.[5] 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.

         The ALJ 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.

         Dr. Eligio Padilla, Ph.D.

         The ALJ 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.

         The ALJ 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.

         Dr. Richard Reed, Ph.D.

         Non-examining 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.

         Dr. Jill Blacharsh, M.D.

         Dr. 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 ...

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