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Saavedra v. Berryhill

United States District Court, D. New Mexico

January 8, 2018

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 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.

         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

         Mr. Saavedra, currently age 57, was in special education throughout school, and dropped out in the twelfth grade. AR 45-46, 206.[4] 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.

         AR 19. 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.

AR 21.

         At step 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.

         Mr. 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, 2016.[5]Doc. 1.

         IV. Mr. Saavedra's Claims

         Mr. 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.

         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 He Rejected, Limitations Noted in the Medical Opinion of Dr. Scott Walker.

         Mr. 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 opinion.

         The 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”), [7]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.[8] 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 ...

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