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Bennett v. Berryhill

United States District Court, D. New Mexico

November 21, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.


          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Michelle Denise Bennett's Motion to Reverse and Remand for a Rehearing (Doc. 19), which was fully briefed on April 17, 2017. Docs. 21, 22, 23. The parties consented to my entering final judgment in this case. Docs. 5, 7, 8. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) failed to apply the correct legal standards in weighing the opinions of non-examining state agency medical consultant Dr. Scott Walker. The Court therefore GRANTS Ms. Bennett's motion and remands this case to the Commissioner for proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. 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.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the Listings[3] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Ms. Bennett, currently age 34, was in self-contained special education throughout school. AR 153, 370.[4] She earned her high school diploma when she was 25, through a program with the New Mexico Division of Vocational Rehabilitation (“DVR”). AR 486, 502. DVR also assisted her in obtaining a job at Walmart, where she worked as a sales associate and cashier for approximately five years. AR 220, 486, 502. Ms. Bennett filed an application for disability insurance benefits on June 11, 2010-alleging disability since May 12, 2010 due to epilepsy and a learning disability. AR 153-59, 219. The Social Security Administration (“SSA”) denied her claim initially on November 19, 2010. AR 39-42.[5] The SSA denied her claims on reconsideration on August 8, 2013. AR 38. Ms. Bennett requested a hearing before an ALJ. AR 104. On August 27, 2014, ALJ Ann Farris held a hearing. AR 479-512. ALJ Farris issued her unfavorable decision on December 1, 2014. AR 12-31.

         The ALJ found that Ms. Bennett was insured for disability benefits through December 31, 2015. AR 18. At step one, the ALJ found that Ms. Bennett had not engaged in substantial, gainful activity since May 12, 2010. Id. Because Ms. Bennett had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. AR 18-20. At step two, the ALJ found that Ms. Bennett had the following severe impairments: “a mild intellectual impairment and an intermittent explosive disorder.” AR 18. Also at step two, the ALJ found that Ms. Bennett had the following nonsevere impairments: “epilepsy, obesity, back pain from motor vehicle accidents and falls, injuries to her ribs and ankles from falls, depression disorder, and mood instability.” Id. At step three, the ALJ found that none of Ms. Bennett's impairments, alone or in combination, met or medically equaled a Listing. AR 20-25. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Bennett's RFC. AR 25-29.

         The ALJ found that:

[C]laimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she should avoid hazards, and is limited to simple routine work tasks with reasoning level 1. The claimant should not be required to have contact with the public, and should have only occasional superficial contact with co-workers.

AR 25.

         At step four, the ALJ concluded that Ms. Bennett was unable to perform her past relevant work as a cashier/salesperson. AR 29. The ALJ found Ms. Bennett was not disabled at step five, concluding that she still could perform jobs that exist in significant numbers in the national economy-such as bakery worker, harvest worker, and floor worker. AR 30.

         Ms. Bennett requested review by the Appeals Council, which, on March 10, 2016, denied the request. AR 5-12. Ms. Bennett timely filed her appeal to this Court on May 8, 2016. Doc. 1.

         IV. Ms. Bennett's Claims

         Ms. Bennett raises two arguments for reversing and remanding this case: (1) the ALJ impermissibly picked and chose from the limitations noted in the opinion of non-examining state agency consultant Dr. Scott Walker, and (2) the ALJ impermissibly picked and chose from the limitations noted in the opinion of consultative examining psychologist Dr. Michael Emery. Because the Court remands based on the ALJ's failure to properly analyze the opinion of Dr. Walker, the Court does not address the other alleged error, which “may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         V. Analysis

         Although an ALJ need not discuss every piece of evidence, the ALJ must discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). Specifically, when assessing a plaintiff's RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996).[6] “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7. “[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on [a specific] functional capacity” because “the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (alteration and internal quotation marks omitted)); see also Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (“exact correspondence between a medical opinion and the mental RFC is not required”). Nevertheless, “[a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.” Chapo, 682 F.3d at 1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). An ALJ “must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). Ultimately, an ALJ is required to weigh medical source opinions and to provide “appropriate explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL 374183, at *5; see also Keyes-Zachary, 695 F.3d at 1161 (“It is the ALJ's duty to give consideration to all the medical opinions in the record, ” and to “discuss the weight he [or she] assigns to such opinions.” (citing 20 C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii)).

         In 2007, the Tenth Circuit Court of Appeals decided two cases that control here. First, in Haga, the court held that an ALJ erred in failing to explain why he adopted some of a consultative examiner's (“CE”) restrictions but rejected others. 482 F.3d at 1208. “[T]he ALJ did not state that any evidence conflicted with [the CE's] opinion or mental RFC assessment. So it is simply unexplained why the ALJ adopted some of [the CE's] restrictions but not others.” Id. The court remanded the case “so that the ALJ [could] explain the evidentiary support for his RFC determination.” Id. Later in 2007, in Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007), the Tenth Circuit expressly applied Haga and its reasoning to the opinions of non-examining physicians.

         A. The ALJ Erred in Failing to Either Incorporate, or Explain Why She Rejected, Limitations Noted in the Medical Opinion of Dr. Scott Walker.

         Ms. Bennett argues that the ALJ failed to account for the numerous moderate limitations in Dr. Walker's Mental Residual Functional Capacity Assessment (“MRFCA”). Doc. 19 at 13- 14. She further argues that the ALJ was required to either include all of the moderate limitations noted by Dr. Walker, or to explain why she did not adopt them. Id. at 15. The Commissioner responds that “the ALJ appropriately considered the functional limitations described by Dr. Walker in the Section III” and was not required to discuss each of the moderate limitations noted in Section I. Doc. 21 at 5-6 (citing Carver v. Colvin, 600 F. App'x 616, 619 (10th Cir. 2015) (unpublished) and SSR 96-6p, 1996 WL 374180, at *1-*2).[7] The Court finds the Commissioner's arguments unpersuasive, and agrees with Ms. Bennett that the ALJ was required to either include, or to explain her reasons for rejecting, the moderate limitations noted in Section I of Dr. Walker's opinion.

         As the Honorable Stephan M. Vidmar thoroughly explained in his opinion rejecting nearly identical arguments, the Program Operations Manual System (“POMS”), [8] regulations, and case law require the ALJ to address all of Dr. Walker's findings, not just those in Section III. See Silva v. Colvin, No. 15-cv-603 SMV, Doc. 24 at 11-18 (D.N.M., Aug. 25, 2016). Specifically, “findings of fact made by State agency . . . psychological consultants and other program physicians and psychologists become opinions at the administrative law judge . . . level[] of administrative review . . . and requires administrative law judges . . . to consider and evaluate these opinions when making a decision in a particular case.” POMS § DI 24515.013.[9]Further, “[b]ecause State agency medical and psychological consultants and other program physicians and psychologists are experts in the Social Security disability programs, the rules in 20 CFR [§§] 404.1527(f) and 416.927(f) (both effective Aug. 24, 2012 through March 26, 2017) require administrative law judges . . . to consider their findings of fact about the nature and severity of an individual's impairment(s) as opinions of nonexamining physicians and psychologists. Administrative law judges . . . are not bound by findings made by State agency . . . psychologists, but they may not ignore these opinions and must explain the weight given to the opinions in their decisions.” Id. And although ALJs also “must consider and evaluate” a program physician's or psychologist's Section III RFC, Section I findings are not exempt from this scrutiny. See id.

         Social Security regulations also require ALJs to “consider findings and other opinions of State agency medical and psychological consultants and other program physicians, psychologists, and other medical specialists as opinion evidence . . . .” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (both effective Aug. 24, 2012 through March 26, 2017). “Evidence” includes “findings . . . made by State agency medical and psychological consultants and other program physicians and psychologists . . ., and opinions expressed by medical experts or psychological experts that we consult based on their review of the evidence in your case record.” 20 C.F.R. §§ 404.1512(b)(1)(viii), ...

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