United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum
(Doc. 18) filed on April 7, 2017. Pursuant to 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have
consented to me serving as the presiding judge and entering
final judgment. See Docs. 4, 7, 8. Having
considered the record, submissions of counsel, and relevant
law, the Court finds Plaintiff's motion is not well-taken
and will be denied.
November 19, 2012, Ms. Nikki Montano (Plaintiff) protectively
filed an application with the Social Security Administration
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act. Administrative Record (AR) at 32, 83,
199. Plaintiff alleged a disability onset date of January 1,
2004. AR at 32, 199. Disability Determination Services (DDS)
determined that Plaintiff was not disabled both initially (AR
at 83-97) and on reconsideration (AR at 98-114). Plaintiff
requested a hearing with an Administrative Law Judge (ALJ) on
the merits of her SSI application. AR at 133-35.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 58-82. ALJ Barry
O'Melinn issued an unfavorable decision on March 4, 2015.
AR at 29-57. Plaintiff submitted a Request for Review of
Hearing Decision/Order to the Appeals Council (AR at 27-28),
which the council denied on June 29, 2016 (AR at 1-6).
Consequently, the ALJ's decision became the final
decision of the Commissioner. Doyal v. Barnhart, 331
F.3d 758, 759 (10th Cir. 2003).
Applicable Law and the ALJ's Findings
claimant seeking disability benefits must establish that she
is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); see also 20 C.F.R. § 416.905(a).
The Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R.
§ 416.920(a)(4); see also Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009).
claimant has the burden at the first four steps of the
process to show: (1) she is not engaged in “substantial
gainful activity”; (2) she has a “severe
medically determinable . . . impairment . . . or a
combination of impairments” that has lasted or is
expected to last for at least one year; and (3) her
impairment(s) meet or equal one of the listings in Appendix
1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant's residual functional capacity
(RFC), she is unable to perform her past relevant work. 20
C.F.R § 416.920(a)(4)(i-iv); see also Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)
(citations omitted). “RFC is a multidimensional
description of the work-related abilities [a claimant]
retain[s] in spite of her medical impairments.” 20
C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see
also 20 C.F.R. § 416.945(a)(1). If the claimant
meets “the burden of establishing a prima facie case of
disability[, ] . . . the burden of proof shifts to the
Commissioner at step five to show that the claimant retains
sufficient . . . RFC to perform work in the national economy,
given [her] age, education, and work experience.”
Grogan, 399 F.3d at 1261 (citing Williams v.
Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988)
(internal citation omitted)); see also 20 C.F.R.
One of the process, ALJ O'Melinn found that Plaintiff
“has not engaged in substantial gainful activity since
November 19, 2012, the application date . . . .” AR at
34 (citing 20 C.F.R. § 416.971). At Step Two, the ALJ
concluded that Plaintiff “has the following severe
impairments: degenerative disc disease (DDD), obesity,
history of bilateral carpal tunnel syndrome (CTS), tennis
elbow, knee disorder, anxiety, depression and borderline
intellectual functioning (BIF) . . . .” AR at 34
(citing 20 C.F.R. § 416.920(c)). The ALJ noted that
Plaintiff's “impairments are severe, in combination
if not singly, . . . in that [she] is significantly affected
in the ability to perform basic work activities . . .
.” AR at 34 (citing 20 C.F.R. §§ 416.920(c),
Three, the ALJ found that Plaintiff “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 .
. . .” AR at 34 (citing 20 C.F.R. §§
416.920(d), 416.925, 416.926). In making his determination,
ALJ O'Melinn considered whether Plaintiff's mental
impairments met the “paragraph B” criteria. AR at
35-36. The ALJ found that Plaintiff has mild restrictions in
her activities of daily living (AR at 36 - noting Plaintiff
takes care of her four-year-old son, takes him to bus stop
for school, prepares her own meals and household chores, uses
public transportation, goes out alone, shops in stores for
food, clothes, etc., pays bills and counts change, watches TV
and reads) (citing AR at 227-30); moderate difficulties in
the area of social functioning (AR at 36 - noting that
Plaintiff reported “a fear of being in a crowd and that
if she was with more than four people, she would have a panic
attack and she would start to hyperventilate”) (citing
AR at 382), and she is afraid she will pass out and will have
to flee crowds; moderate difficulties in the area of
concentration, persistence or pace (AR at 36 - noting
Plaintiff reported that she needs help with instructions due
to depression and anxiety, can follow spoken instructions
well, can pay attention for 20 minutes, and was only able to
repeat one of three words at her consultative examination)
(citing AR at 231, 383); and Plaintiff has experienced no
episodes of decompensation of extended duration (AR at 36).
Because the ALJ did not find that Plaintiff has at least two
“marked” limitations or one “marked”
limitation and “repeated” episodes of
decompensation, he determined that her mental impairments did
not satisfy the “paragraph B” criteria (or the
“paragraph D” criteria of listing 12.05). The ALJ
also determined that Plaintiff did not meet the
“paragraph C” criteria of 12.04 or 12.06. AR at
37. Finally, the ALJ determined that Plaintiff did not meet
the “paragraph A, ” “paragraph B, ”
or “paragraph C” criteria of 12.05. AR at 37
(citing AR at 226-27, 387).
Four, the ALJ found that while Plaintiff's
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms[, ] . . .
[Plaintiff's] statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely credible . . . .” AR at 39. The ALJ thoroughly
considered the evidence of record as well as the opinions of
Plaintiff's treating counselor, the consultative
psychologists and physicians, a nurse practitioner, and
Plaintiff's friend, Debbie Rael. AR at 38-50. Ultimately,
the ALJ found that Plaintiff
has the residual functional capacity to perform sedentary
work as defined in 20 [C.F.R. §] 416.967(a)[, ] except
occasionally lift and/or carry up to ten pounds and
frequently lift and/or carry less than ten pounds; stand
and/or walk with normal breaks for a total of two hours in an
eight hour workday; sit with normal breaks for a total of six
hours in an eight hour workday; occasionally climb ramps or
stairs, but never climb ropes, ladders or scaffolds;
occasionally balance with the use of a handheld assistive
device; can occasionally stoop, kneel, crouch, or crawl; she
is limited to frequent reaching, handling and fingering,
bilaterally; she is to avoid concentrated exposure to
operational control of moving machinery and unprotected
heights and hazardous machinery; the claimant 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 two hours at a time with
normal breaks throughout the work day; work limited to
simple, routine and repetitive tasks; suitable for jobs
involving work primarily with things and not people.
AR at 37-38.
O'Melinn concluded that Plaintiff has no past relevant
work (AR at 50 (citing 20 C.F.R. § 416.965)), but she is
able to perform work as a Dowel Inspector, Nut Sorter, and
Laminator. AR at 51. The ALJ ultimately determined that
Plaintiff “has not been under a disability, as defined
in the Social Security Act, since November 19, 2012 . . .
.” AR at 51 (citing 20 C.F.R. § 416.920(g)).
Court must “review the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds
for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161, 1166 (citation omitted). “Substantial evidence is
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Lax, 489 F.3d at 1084 (quoting Hackett, 395
F.3d at 1172 (internal quotation omitted)). “It
requires more than a scintilla, but less than a
preponderance.” Id. (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal
quotation omitted) (alteration in original)). The Court will
“consider whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases, but [it] will not reweigh the
evidence or substitute [its] judgment for the
Commissioner's.” Id. (quoting
Hackett, 395 F.3d at 1172 (internal quotation marks
and quotations omitted)).
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial evidence.”
Id. (quoting Zoltanski, 372 F.3d at 1200
(internal quotation omitted)). The Court “may not
‘displace the agenc[y's] choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
novo.'” Id. (quoting Zoltanski,
372 F.3d at 1200 (internal quotation omitted)).
asserts three issues in her Motion. First, Plaintiff argues
that the ALJ “failed to give proper reasons for
rejecting the opinion of treating therapist Paul Weeks”
who is a Licensed Professional Clinical Counselor (LPCC).
Doc. 18 at 1. Second, Plaintiff contends that the
ALJ “erred by failing to account for all of the
moderate [l]imitations found by 96-6p non-examining
psychologist Donald Gucker, Ph.D. . . .” Id.
Third, Plaintiff alleges that “the Appeals Council
failed to analyze the opinion of treating therapist Paul
Weeks, LPCC whose opinion undercuts ALJ O'Melinn's
RFC determination.” Id. at 1-2.
The ALJ adequately examined LPCC Weeks' opinion.
contends the ALJ's “reasons for rejecting LPCC
Weeks' opinions are facially dubious and too
vague.” Doc. 18 at 18. Plaintiff argues it was
error for ALJ O'Melinn to discount LPCC Weeks'
opinion because he was an “other source.”
Id. at 19-20. She also asserts that the ALJ's
failure to specifically identify any alleged inconsistencies
between LPCC Weeks' opinions and Plaintiff's
testimony is error. Id. at 20-21.
record establishes that Plaintiff received individual
counseling at Valle del Sol (previously named Valencia
Counseling Services) beginning in August 2011. See
AR at 367. On July 11, 2014, LPCC Weeks reported that he had
seen Plaintiff for weekly individual therapy for about three
years. AR at 715. Relevant to Plaintiff's counseling with
LPCC Weeks, the record that ALJ O'Melinn
examined contains eight “Treatment Plans,
” two “Assessment Updates,
” two “Clinical Assessments,
” one “Diagnosis Review,
” one “Individual Service Plan,
” and one “Medical Opinion
Questionnaire (Mental Impairments).”
O'Melinn summarized several of LPCC Weeks' treatment
notes and the Medical Opinion Questionnaire (Mental
Impairments). The ALJ noted that during an April 18, 2013
Assessment Update, LPCC Weeks
noted and observed that [Plaintiff's] appearance was
unkempt and her posture was slumped. Her attitude was
cooperative and her behavior was agitated. Her speech was
rapid and slow. Her mood was euthymic and her affect was
anxious. Her thought content was unremarkable and her thought
processes were organized, rationale [sic], and concrete. Her
recent and remote memories were intact and she was oriented
to date, person, place and situation. Her attention was low
and her insight and judgment were poor. Mr. Weeks noted that
[Plaintiff] was stable and sober for over one year. She had
quit smoking four months ago and her memories were returning.
She had quit smoking but was presently gaining weight.
40 (citing AR at 428-29). The Court notes that LPCC
Weeks' April 18, 2013 observations and notes are almost
identical to those he made on October 16, 2012.
Compare AR at 357-58, with AR at 428-29.
discussed a May 24, 2013 Diagnosis Review that Mr. Weeks had
completed. AR at 41 (citing AR at 434-35). LPCC Weeks noted
that Plaintiff's presenting problem was anxiety, and her
symptoms included “sudden attacks of anxiety,
difficulty breathing, rapid heartbeat, racing thoughts[, and]
lack of focus.” AR at 41 (citing AR at 434).
Plaintiff's diagnosis is Generalized Anxiety Disorder. AR
at 41 (citing AR at 434). LPCC Weeks “noted that
[Plaintiff] had no income but she was working to get her GED.
. . . [Plaintiff] was friendly and articulate and she worried
that she was going crazy, but she was not.” AR at 41
(citing AR at 434-35). Mr. Weeks determined that the claimant
had a Global Assessment of Functioning (GAF) score of 70. . .
.” AR at 41 (citing AR at 434).
O'Melinn detailed LPCC Weeks' April 29, 2014 Clinical
Assessment of Plaintiff. AR at 43. LPCC Weeks “noted
[Plaintiff] had been a long time heroin user but she had been
sober for 14 years, she also had been sober from alcohol for
9 months. She had quit smoking two years ago.” AR at 43
(citing AR at 808). Plaintiff, who “struggle[s] with
depression, anxiety and anger issues[, ]” has eight
children, but only her youngest lives with her. AR at 43
(citing AR at 808).
Mr. Weeks noted and observed that [Plaintiff] appeared
disheveled and she had on casual attire. Her behavior was
within normal limits and she had adequate speech. Her mood
was euthymic and her affect was appropriate. Her thought
processes were logical and her thought content was normal.
Her concentration was good and insight and judgment were
fair. [Plaintiff] was diagnosed with bipolar 1 disorder, most
recent episode depressed moderate worse.
43 (citing AR at 814). LPCC Weeks assessed Plaintiff's
GAF score at ¶ 55, which “indicates moderate
symptoms or moderate difficulty in social, occupation[al] or
school functioning. AR at 43 (citing DSM-IV 34). Mr. Weeks
also “noted that [Plaintiff] responded well to her
medications.” AR at 43; see also AR at 815.
the ALJ detailed LPCC Weeks' opinions contained in the
July 11, 2014 Medical Opinion Questionnaire (Mental
Impairments). AR at 47-48 (citing AR at 715-17). The ALJ
noted that Mr. Weeks had been seeing Plaintiff “for
about three years for therapy and medication management, and
presently he was doing weekly individual therapy . . .
.” AR at 47 (citing AR at 715). LPCC Weeks “noted
that [Plaintiff] had been diagnosed with bipolar 1 disorder,
most recent episode depressed[, ]” but she “was
making good progress with her prognosis.” AR at 48
(citing AR at 715). Mr. Weeks assessed Plaintiff's
“mental abilities and aptitude needed to do any
job.” AR at 715-17 (capitalization omitted). The
questionnaire lists 25 skills with a ranking system of
“unlimited or very good, ” “good, ”
“fair, ” or “poor or none.” AR at
715-17. Mr. Weeks ranked Plaintiff on the bottom two levels -
“fair” or “poor or none” - for all 25
skills. AR at 715-17. The ALJ commented on several of these:
Mr. Weeks noted that [Plaintiff's] ability to interact
appropriately with the general public was fair to poor and
that her ability to remember work-like procedures was poor.
He further determined that [Plaintiff's] ability to
understand and remember very short and simple instructions
was poor or none and her ability to carry out very short and
simple instructions was poor or none. Her ability to sustain
an ordinary routine without special supervision was poor or
none and her ability to ask simple questions or request
assistance was fair.
AR at 48 (citing AR at 715-17). ALJ O'Melinn also focused
on Mr. Weeks' opinions that Plaintiff “had made
good progress toward her treatment goals” but
“continued to have difficulty with her attention and
managing her anxiety and depression.” AR at 48 (citing
AR at 717). Mr. Weeks also opined that Plaintiff would miss
more than two days of work per month. AR at 717.
gave “little weight” to LPCC Weeks' opinion.
AR at 47. He found that while “Mr. Weeks has a
longitudinal history with [Plaintiff], under [SSR] 06-03p, a
counselor is not considered an ‘acceptable' medical
source . . . .”AR at 48; see also Soc. Sec.
Ruling, SSR 06-03p, Titles II and XVI: II and XVI:
Considering Opinions and Other Evidence from Sources who are
not ‘Acceptable Medical Sources' in Disability
Claims, 2006 WL 2329939 (Aug. 9, 2006). The ALJ further found
that Mr. Weeks' “report appears to contain
inconsistencies with [Plaintiff's] testimony, and
therefore his opinion is rendered less persuasive and given
little weight.” AR at 48; see also SSR 06-03p,
2006 WL 2329939, at *2.
has two broad complaints about how ALJ O'Melinn assessed
Mr. Weeks' testimony. First, Plaintiff argues it was
error for the ALJ to discount LPCC Weeks' opinion simply
because he was an “other source.” Doc.
18 at 18-20. Plaintiff points out that an “other
source” opinion may be entitled to more weight than an
“acceptable medical source” regarding the
severity and degree of a claimant's limitations.