United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
Fashing, United States Magistrate Judge
MATTER comes before the Court on plaintiff Manuel Victor
Saavedra's Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 15), which was fully briefed
on May 22, 2017. Docs. 18, 19, 20. The parties consented to
my entering final judgment in this case. Docs. 4, 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 Mr. Saavedra's motion
and remands this case to the Commissioner for proceedings
consistent with this opinion.
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
Saavedra, currently age 57, was in special education
throughout school, and dropped out in the twelfth grade. AR
45-46, 206. He took the GED twice, but did not pass.
AR 45. Mr. Saavedra worked primarily in construction as a
laborer, plumber, plasterer, and painter. AR 58, 75, 257. He
also had shorter periods of work unloading mail from
airplanes, and as a stocker in a grocery store. AR 58-59, 75.
Mr. Saavedra filed applications for disability insurance
benefits and supplemental social income on September 15,
2011-alleging disability since January 1, 2011 due to hearing
loss, hepatitis C, and a blood disorder. AR 85-86, 246. The
Social Security Administration (“SSA”) denied his
claims initially on April 26, 2012. AR 85- 110. The SSA
denied his claims on reconsideration on June 5, 2013. AR
151-54. Mr. Saavedra requested a hearing before an ALJ. AR
161-62. On August 7, 2014, ALJ John W. Rolph held a hearing.
AR 37-84. ALJ Rolph issued his unfavorable decision on
November 4, 2014. AR 13- The ALJ found that Mr. Saavedra was
insured for disability benefits through December 31, 2014. AR
18. At step one, the ALJ found that Mr. Saavedra had not
engaged in substantial, gainful activity since January 1,
2011, the alleged date of onset. Id. Because Mr.
Saavedra had not engaged in substantial gainful activity for
at least twelve months, the ALJ proceeded to step two. AR
18-19. At step two, the ALJ found that Mr. Saavedra had the
following severe impairments: “liver problems
(hepatosplenomegaly/cirrhosis/esophageal varices); Hepatitis
C with fatigue; bilateral sensorial hearing loss; left
shoulder problems/pain; obesity; lumbar arthritis; learning
disorder NOS (reading/writing/mathematics); and depressive
disorder NOS.” AR 18. Also at step two, the ALJ found
that Mr. Saavedra had several nonsevere impairments.
At step three, the ALJ found that none of Mr. Saavedra's
impairments, alone or in combination, met or medically
equaled a Listing. AR 19-21. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Mr.
Saavedra's RFC. AR 21-28. The ALJ found that:
[C]laimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
including the ability to lift and carry up to 20 pounds
occasionally and 10 pounds frequently. He may occasionally
climb ramps and sta[i]rs, balance, stoop, kneel, crouch and
crawl, but may never climb ladders, ropes, and scaffolds. He
may occasionally reach overhead with the non-dominant left
upper extremity, and may frequently reach, handle, finger,
and feel with both upper extremities. He must avoid more than
occasional exposure to loud noise in the workplace. He is
fully capable of learning, remembering and performing simple,
routine, and repetitive work tasks involving simple work
instructions, which are performed in a routine, predictable
and low stress work environment, defined as one in which
there is a routine work pace, few work place changes, and no
“over the shoulder” supervision. He can perform
work tasks that do not require reading, writing, or
mathematics skills above the 7th grade level, and which do
not require fine hearing discrimination. He can interact
appropriately with supervisors, coworkers and the public on
an occasional basis and maintain concentration, persistence,
and pace for 2 to 3 hours at a time with normal breaks.
four, the ALJ concluded that Mr. Saavedra was unable to
perform his past relevant work as a painter, plumber, mailer
handler, stocker, or concrete worker. AR 29. The ALJ found
Mr. Saavedra was not disabled at step five, concluding that
he still could perform jobs that exist in significant numbers
in the national economy-such as ticket taker, shipping and
receiving weigher, and routing clerk. AR 30.
Saavedra requested review by the Appeals Council, which, on
May 14, 2016, denied the request. AR 1-12. Mr. Saavedra
timely filed his appeal to this Court on July 15,
Mr. Saavedra's Claims
Saavedra raises two arguments for reversing and remanding
this case: (1) the ALJ failed to incorporate into his RFC all
of the moderate limitations in the opinion of state agency
medical consultant Dr. Scott Walker, and (2) the ALJ failed
to give adequate or legitimate reasons for rejecting the
opinion of examining physician Dr. John R. Vigil.
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.
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 He Rejected, Limitations Noted in the Medical Opinion of
Dr. Scott Walker.
Saavedra argues that the ALJ failed to account for all of the
moderate limitations in Dr. Walker's Mental Residual
Functional Capacity Assessment (“MRFCA”). Doc. 15
at 14- 17. Specifically, he argues that the ALJ failed to
account for the moderate limitations Dr. Walker found in his
ability “to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances” and in his ability “to complete a
normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest
periods.” Id. at 15-16. The Commissioner
argues that the ALJ's RFC assessment is consistent with
Dr. Walker's Section III findings, and that the ALJ was
not required to discuss each of the moderate limitations in
Section I of Dr. Walker's opinion. Doc. 18 at 4-8. The
Court finds the Commissioner's argument unpersuasive, and
agrees with Mr. Saavedra that the ALJ was required to either
include, or to explain his reasons for rejecting, the
moderate limitations noted in Section I of Dr. Walker's
Court rejects the Commissioner's argument that the ALJ is
only required to address Dr. Walker's Section III
findings. As the Honorable Stephan M. Vidmar thoroughly
explained in his opinion rejecting similar 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, 203 F.Supp.3d
at 1158-64 (D.N.M. 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 ...