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Montoya v. Berryhill

United States District Court, D. New Mexico

November 15, 2017

LORRAINE MONTOYA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff Lorraine Montoya's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 16), filed March 10, 2017. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc.26. Having reviewed the parties' submissions, the relevant law, and the relevant portions of the Administrative Record, the Court will grant the Motion.

         I. Introduction

         Plaintiff worked as a registered nurse until, she claims, her physical and psychological impairments rendered her disabled. In reaching the opposite conclusion, Administrative Law Judge Ann Farris ascribed “little weight” to multiple psychological opinions in the record, effectively rejecting them. In doing so, however, the ALJ failed to apply the correct legal standards and her reasoning is not supported by substantial evidence. Accordingly, the Court will reverse the ALJ's finding of nondisability, and remand this case for further proceedings consistent with this opinion.

         II. Procedural History

         Plaintiff filed an application with the Social Security Administration for disability insurance benefits under Title II of the Social Security Act on March 22, 2012, with a protective filing date of March 21, 2012. AR at 154, 171.[1] Plaintiff alleged a disability onset date of September 15, 2010, the day she stopped working, due to epilepsy/grand mal seizures, anxiety and depression. AR at 171, 175. Plaintiff most recently worked as a registered nurse, and, at the time of her hearing, had returned to work one day a week. AR at 43, 176.

         The agency denied Plaintiff's claims initially and upon reconsideration, and she requested a de novo hearing before an administrative law judge. AR at 70-125. ALJ Farris held an evidentiary hearing on January 27, 2015, at which Plaintiff appeared via video conference. AR at 33-69. The ALJ issued an unfavorable decision on April 8, 2015. AR at 9-32. Plaintiff submitted a Request for Review of the ALJ's decision to the Appeals Council, which the Council denied on June 7, 2016. AR at 1-7. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

         A 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); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4).[2]

         At Step One of the sequential evaluation process, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her alleged onset date. AR at 15. At Step Two, she determined that Plaintiff has the severe impairments of “epilepsy, obsessive-compulsive disorder, post-traumatic stress disorder (PTSD), a panic disorder, and a major depressive disorder[.]” AR at 15. At Step Three, the ALJ concluded that Plaintiff's impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 15-17.

         When a plaintiff does not meet a listed impairment, the ALJ must determine her residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a multidimensional description of the work-related abilities a plaintiff retains in spite of her medical impairments. 20 C.F.R. § 404.1545(a)(1). “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined that Plaintiff retains the RFC to

perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant must avoid exposure to hazardous conditions including unprotected heights, ladders, scaffolds, and dangerous moving machinery and the claimant is limited to simple, routine tasks with no production rate pace (i.e., no assembly type jobs in which the individual must finish job tasks before someone else can do his or her job), no interaction with the general public, and only occasional and superficial interactions with co-workers.

AR at 17.

         Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational Expert, the ALJ determined that Plaintiff is unable to perform her past relevant work as a nurse tech, licensed practical nurse and registered nurse. AR at 26. However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform despite her limitations. AR at 26-27. Specifically, the ALJ determined that Plaintiff retains the functional capacity to work as an addresser in an office setting, flatwork tier, or a kitchen helper. AR at 27. Accordingly, the ALJ determined that Plaintiff is not disabled and denied benefits. AR at 28.

         III. Legal Standards

         This Court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . . A 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 v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quoted authority omitted).

         IV. Analysis

         Plaintiff appeals the ALJ's decision on two grounds. See Doc. 16. First, she argues that the ALJ improperly rejected the opinions of her treating neurologist, Paul Walsky, M.D., that she was unable to work. Id. at 1. Second, she argues that the ALJ failed to give adequate reasons for rejecting the opinions of examining psychologists Richard Madsen, Ph.D., Kathryn Benes, Ph.D., and Esther Davis, Ph.D. Id.

         A) Treatment of Dr. Walsky's Opinions

         Paul Walsky, M.D. treated Plaintiff for a total of 25 years, beginning on March 16, 1988. See AR at 455-56. During the course of Plaintiff's treatment Dr. Walsky authored three notes, which the ALJ considered as “medical opinions.” See AR at 19; 20 C.F.R § 404.1527(a)(1) (“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s)[.]”). These notes opined that Plaintiff would be off work for varying degrees of time. See AR at 319, 320, 436. The ALJ addressed these opinions as follows:

In his September 15, 2011 note, Dr. Walksy opined that the claimant is off work for three months; she is to return on December 19, 2011 (Exhibits 3-F, p.8). Dr. Walksy also opined in his November 23, 2011 note that "due to a medical condition, " the claimant is unable to work for "an indefinite period of time" (Exhibit 3-F, p.7). On February 7, 2012, Dr. Walsky opined that the claimant will remain out of work for longer than one year, until further notice (Exhibit 9-F, p.6). I give little weight to Dr. Walksy's opinions, since they are not consistent with the record as a whole, including the objective medical evidence from treating and examining sources, her medical treatment, and her daily activities.

AR at 19. In other words, the ALJ “effectively rejected” Dr. Walsky's opinions that Plaintiff cannot work. Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (equating “according little weight to” an opinion with “effectively rejecting” it); Crowder v. Colvin, 561 F. App'x 740, 742 (10th Cir. 2014) (citing Chapo for this proposition); Ringgold v. Colvin, 644 Fed.Appx. 841, 844 (10th Cir. 2016) (same).

         Plaintiff argues that the ALJ failed to give good reasons for rejecting these opinions. Doc. 16 at 16. Relying on Lewis v. Berryhill, 680 F. App'x (10th Cir. 2017), she argues that the ALJ failed to apply the correct legal standards to Dr. Walsky's opinions because the reasons the ALJ gave were neither legitimate nor specific. Id. at 18. The Commissioner counters that the ALJ's reasons were not as vague as those in Lewis, and so her decision should stand. As further explained below, the Court agrees with Plaintiff that the ALJ's first two reasons, that these findings “are not consistent with the record as a whole, including the objective medical evidence from treating and examining sources, [and] her medical treatment” were too vague to withstand scrutiny. However, even assuming arguendo that the ALJ erred, the Court finds any error to be harmless because the ALJ permissibly relied upon the inconsistency of these opinions with Plaintiff's daily activities.

         “[C]ase law, the applicable regulations, and the Commissioner's pertinent Social Security Ruling (SSR) all make clear that in evaluating the medical opinions of a claimant's treating physician, the ALJ must complete a sequential two-step inquiry, each step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

An ALJ must first consider whether the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques. . . . If the ALJ finds that the opinion is well-supported, he must then confirm that the opinion is consistent with other substantial evidence in the record.

Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014) (quoting Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004)). “If the opinion is deficient in either of these respects, it is not to be given controlling weight.” Krauser, 638 F.3d at 1330. However, “[e]ven if a treating opinion is not given controlling weight, it is still entitled to deference; at the second step in the analysis, the ALJ must make clear how much weight the opinion is being given . . . and give good reasons, tied to the factors specified in the cited regulations for this ...


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