United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
Fashing United States Magistrate Judge
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
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision 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.
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)).
Applicable Law and Sequential Evaluation Process
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).
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 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.
Background and Procedural History
Bennett, currently age 34, was in self-contained special
education throughout school. AR 153, 370. 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. 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
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.
[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.
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.
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.
Ms. Bennett's Claims
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).
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). “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)).
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.
The ALJ Erred in Failing to Either Incorporate, or Explain
Why She Rejected, Limitations Noted in the Medical Opinion of
Dr. Scott Walker.
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). 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.
Honorable Stephan M. Vidmar thoroughly explained in his
opinion rejecting nearly identical arguments, the Program
Operations Manual System (“POMS”),  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.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.
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), ...