United States District Court, D. New Mexico
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff Sanya Milner's
(“Plaintiff's”) “Motion and Memorandum
in Support of Reversing and Remanding Administrative Agency
Decision” (“Motion”), filed on March 17,
2017. ECF No. 22. The Commissioner responded on May 11, 2017.
ECF No. 24. Plaintiff filed her Reply on June 6, 2017. ECF
No. 25. Having meticulously reviewed the entire record and
the parties' briefing, the Court finds that
Plaintiff's Motion is well taken and that the
Administrative Law Judge's (“ALJ's”)
ruling should be REVERSED and
REMANDED. Therefore, and for the further
reasons articulated below, the Court will
GRANT Plaintiff's Motion.
was born on September 8, 1971. Administrative R.
(“AR”) 30. She earned her General Equivalency
Diploma (“GED”) and attended some college. AR 31.
Plaintiff last worked in March 2012 as a clerk at a
convenience store. AR 31-32. Prior to her job at a
convenience store, Plaintiff worked for SEI at a call center
for two and a half years. AR 34.
March 20, 2012, Plaintiff filed an application for Social
Security Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”), with an
alleged disability onset date of March 6, 2012. AR 12. Her
claims were denied on September 6, 2012, and upon
reconsideration on June 12, 2013. AR 12. Plaintiff filed a
written request for hearing on August 12, 2013. AR 12. The
Administrative Law Judge (“ALJ”), Christopher H.
Juge, held a video hearing on January 13, 2015, at which
Plaintiff testified and appeared with counsel in Clovis, New
Mexico. AR 12. Todd S. Capielano, a vocational expert, also
appeared at the hearing but did not testify. AR 12.
February 25, 2015, the ALJ issued his decision that Plaintiff
was not disabled within the meaning of the Social Security
Act (“the Act”), from March 6, 2012, through the
date of the decision. AR 20. On April 23, 2015, Plaintiff
requested that the Appeals Council review the ALJ's
decision, a request the Appeals Council denied on July 25,
2016. AR 1-6. As a consequence, the ALJ's decision became
the final decision of the Commissioner. 20 C.F.R. §
422.210(a) (2017). Plaintiff timely filed her appeal in this
Court on September 22, 2016. ECF No. 1.
appeal, Plaintiff raises three issues. First, Plaintiff
advances a multi-prong argument that the ALJ erred in
concluding that Plaintiff's depression was not disabling.
See Pl.'s Mot. 17-22, ECF No. 22. Specifically,
she asserts that the ALJ omitted certain limitations from her
residual functional capacity (“RFC”)
determination that had been assigned by Dr. Mark C.
McGaughey, Ph.D, the non-treating consultative psychiatric
examiner, and Dr. Howard G. Atkins, Ph.D, the non-examining
state agency medical psychiatric consultant. Id. at
18-19. Plaintiff also argues that the ALJ erred in evaluating
only her anxiety disorder under Listing 12.06, as opposed to
evaluating both her anxiety disorder under Listing 12.06 and
her affective disorder under Listing 12.04. Id. at
18. Plaintiff additionally asserts that the ALJ erred in
granting no weight to the opinion of Christina Wampler, a
treating licensed mental health counselor, id. at
19, and that the ALJ erred in stating that Plaintiff did not
have a history of dedicated mental health treatment.
Id. According to Plaintiff, the ALJ picked and chose
from the record and did not include evidence that
contradicted his finding of disability. Id. at 20.
Plaintiff argues that the ALJ committed legal error by
failing to document the psychiatric review technique
(“PRT”) in his decision. Id. at 21-22.
Third, Plaintiff argues that the ALJ committed legal error by
applying the Social Security Administration's (“the
Administration's”) Medical-Vocational Guidelines,
otherwise known as “the grids, ” to determine
that Plaintiff was not disabled. Id. at 22-26.
Standard of Review
the Appeals Council denies a claimant's request for
review, the ALJ's decision becomes the final decision of
the agency. The Court's review of that final
agency decision is both factual and legal. See Maes v.
Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec'y of Health & Human Servs.,
961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard
of review in a social security appeal is whether the correct
legal standards were applied and whether the decision is
supported by substantial evidence.”)
factual findings at the administrative level are conclusive
“if supported by substantial evidence.” 42 U.S.C.
§ 405(g) (2012). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003). An ALJ's 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, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. Substantial evidence does
not, however, require a preponderance of the evidence.
See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004)). A court should meticulously review
the entire record but should neither re-weigh the evidence
nor substitute its judgment for that of the Commissioner.
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d
the review of the ALJ's legal decisions, the Court
reviews “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of
evidence in disability cases.” Lax, 489 F.3d
at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . .
that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
if substantial evidence supports the ALJ's findings and
the correct legal standards were applied, the
Commissioner's decision stands and the plaintiff is not
entitled to relief. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d
Sequential Evaluation Process
has devised a five-step sequential evaluation process to
determine disability. See Barnhart v. Thomas, 540
U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4)
(2012). At the first three steps, the ALJ considers the
claimant's current work activity, the medical severity of
the claimant's impairments, and the requirements of the
Listing of Impairments. See 20 C.F.R. §§
404.1520(a)(4); Pt. 404, Subpt. P, App'x 1. If a
claimant's impairments are not equal to one of those in
the Listing of Impairments, then the ALJ proceeds to the
first of three phases of step four and determines the
claimant's RFC. See Winfrey, 92 F.3d at 1023; 20
C.F.R. §§ 404.1520(e). In phase two, the ALJ
determines the physical and mental demands of the
claimant's past relevant work, and in the third phase,
compares the claimant's RFC with the functional
requirements of his past relevant work to determine if the
claimant is still capable of performing her past work.
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f). If a claimant is not prevented from performing
her past work, then she is not disabled. 20 C.F.R.
§§ 404.1520(f). The claimant bears the burden of
proof on the question of disability for the first four steps.
See Bowen v. Yuckert, 482 U.S. 137, 146 (1987);
Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir.
claimant cannot return to her past work, then the
Commissioner bears the burden at the fifth step of showing
that the claimant is nonetheless capable of performing other
jobs existing in significant numbers in the national economy.
See Thomas, 540 U.S. at 24-25; see also Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)
(discussing the five-step sequential evaluation process in
THE ALJ'S DECISION
issued his decision on February 25, 2015. AR 20. At step one,
he found that Plaintiff met the insured status requirements
of the Act through September 30, 2015, and that Plaintiff had
not engaged in substantial gainful activity since March 6,
2012, which was the alleged onset date of disability. AR 14.
At step two, the ALJ found that Plaintiff had the following
severe impairments: asthma, affective disorder, and obesity.
AR 14. At step three, the ALJ found that none of
Plaintiff's impairments, alone or in combination, met or
medically equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. AR 15.
determining that none of Plaintiff's impairments met or
medically equaled the severity of a listed impairment, the
ALJ considered the following listings: 1.02 (major
dysfunction of a joint), 1.07 (fracture of an upper
extremity), 12.06 (anxiety-related
disorders), and listings under Section 6.00
(genitourinary disorders) and 14.00 (immune system). AR 15. As
Plaintiff accurately points out in her Motion, the ALJ did
not consider Listing 12.04 for affective disorders. Pl.'s
Mot. 18. Instead, in justifying his finding at step three,
the ALJ wrote only that “the medical evidence does not
document listing-level severity, and no acceptable medical
source has mentioned findings equivalent in severity to the
criteria of any listed impairment[.]” AR 15. The ALJ
also noted that the non-examining state disability
consultants “also concluded after reviewing the
evidence that no listing is met or equaled (see Exhibit
6A).” AR 15.
finding that none of Plaintiff's impairments satisfied an
applicable Listing, the ALJ proceeded to step four and
assessed Plaintiff's RFC. AR 15-19. The ALJ found that
Plaintiff had the RFC to “perform the full range of
simple, unskilled sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a), provided that she avoid
concentrated exposure to dust, fumes, and noxious
gases.” AR 15.
develop Plaintiff's RFC, the ALJ relied primarily upon
Plaintiff's testimony, the reports of the two
non-examining state disability consultants (Dr. Leah Holly,
D.O., and Dr. Howard G. Atkins, Ph.D.), the report of a
consultative psychiatric examiner (Dr. Mark C. McGaughey,
Ph.D.), and the ALJ's rejection of licensed mental health
counselor Christina Wampler's opinion. The ALJ
“considered all [of Plaintiff's] symptoms and the
extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other
evidence” and “opinion evidence.” AR 15. He
then concluded that “[h]aving carefully considered the
objective medical evidence, such as x-ray reports and
clinical findings, there simply is no evidence from any of
the claimant's examining physicians supporting a finding
that she was disabled during the relevant period or that
contradicts the RFC determination.” AR 17.
also found that Plaintiff was “not entirely credible,
” which Plaintiff does not challenge on appeal. AR 18.
The ALJ found that there were numerous inconsistencies
between Plaintiff's testimony and evidence elsewhere in
the record. AR 18-19. In particular, the ALJ opined that
findings upon examination “repeatedly identified normal
sensation and neurological function, and a normal gait”
and that physical examinations were “not corroborative
of the claimant's allegations of disabling back and foot
pain.” AR 18. The ALJ noted that although Plaintiff
“reported that she had been hospitalized on numerous
occasions to treat her acute asthmatic episodes, ” the
record did not support “such frequent hospitalizations
as she describes them, ” and that Plaintiff “can
tolerate her own cigarette smoke and marijuana smoke without
complications.” AR 18-19. According to the ALJ,
Plaintiff also testified that she was unable to crouch, yet
“went on to testify in response to questions about her
mental state that she finds herself crouching in a
corner.” AR 19.
regarding Plaintiff's mental impairments, the ALJ
compared Plaintiff's testimony with the record, and found
[Plaintiff] does not have a history of dedicated mental
health treatment, and only recently (since 8/2014) began to
see a social worker for evaluations of mental health
symptomatology. (Ex. 7F.) She has never been hospitalized for
any mental health disorder, and, aside from being diagnosed
with depression, the medical reports, discussed below, are
not corroborative of the severe allegations advanced at the
determine Plaintiff's RFC, the ALJ considered the
opinions of Dr. McGaughey, Dr. Holly, Dr. Atkins, and
Christina Wampler, Licensed Mental Health
Counselor. Although the ALJ did not specifically
assign weight to the opinions of Dr. McGaughey, Dr. Holly,
and Dr. Atkins, the ALJ adopted them in his decision. On
appeal, Plaintiff did not raise the issue of weight assigned
to their opinions. With respect to Dr. Holly's opinion
that Plaintiff “was capable of performing exertionally
light physical activity, ” the ALJ wrote that he
“agrees with that assessment[.]” AR 18. The ALJ
also opined that “Dr. McGaughey's assessment was
supported by his clinical findings[.]” AR 14. The ALJ
did not specifically address Dr. Atkins's findings other
than stating that Dr. Atkins “assessed mild restriction
in activities of daily living, mild restriction in
maintaining social function, and a moderate limitation in
concentration, persistence, and pace.” AR 14. With
respect to the weight granted to Dr. McGaughey's and Dr.
Atkins's opinions, the ALJ found that “based on the
well-reasoned and fully supported opinions of the state
agency consultants, the undersigned finds the claimant no
more limited than found herein.” AR 15. It is unclear
whether the ALJ was also referring to Dr. Holly's opinion
in addition to those of Dr. McGaughey and Dr. Atkins.
granted no weight to Ms. Wampler's functional assessment
of Plaintiff because her conclusions “are not
corroborated by contemporaneous treatment notes showing such
a severity of symptoms, and are internally inconsistent in so
far as the report is dated August 2014, yet finds the
claimant's symptoms to have begun in August 2013, roughly
one year before the claimant initiated mental health
treatment.” AR 19.
Mark C. McGaughey, Ph.D.
McGaughey is a consultative psychiatric examiner who examined
Plaintiff on August 9, 2012. AR 374. Although the ALJ did not
specifically assign weight to Dr. McGaughey's opinion, he
adopted it. AR 15. Plaintiff reported a history of anxiety
and depression, saying that she had increased suicidal
thinking and nightmares after being prescribed Lexapro, but
even with a change in medication to Seroquel, Paroxetine HCL,
and Clonazepam in July 2012, she had not experienced any
relief. AR 374. Plaintiff began having suicidal thoughts in
July 2012, but denied any intent or plan to carry through
with suicide. AR 374.
respect to substance use, Plaintiff stated she drinks alcohol
once a month or less, but admitted that she uses marijuana
“in the form of ‘one bowl' per day to help
deal with her pain.” AR 374. Plaintiff told Dr.
McGaughey that she smoked four to six cigarettes per day.
mental status, Dr. McGaughey reported that affect “was
generally full range, although [ ] she was tearful at
times.” AR 375. Plaintiff's mood was moderately
dysphoric, and her sleep and appetite were poor most of the
time. With respect to attention and concentration, they were
“generally okay during the interview[.]” AR 375.
Dr. McGaughey reported that Plaintiff's remote memory was
grossly intact and her verbal abstract reasoning skills were
generally satisfactory. AR 375. Dr. McGaughey also found that
her insight and judgment were good, and reaffirmed that
Plaintiff denied any suicidal ideation, intent, or plan. AR
375. Clinically, Dr. McGaughey assessed the following
diagnostic impressions: depressive disorder, anxiety
disorder, and cannabis abuse. AR 375. He also reported a
current Global Assessment of Functioning (“GAF”)
score of 57. AR 375.
McGaughey found that Plaintiff had several mild to moderate
limitations secondary to depression and anxiety:
Ms. Milner displays mild to moderate limitations in
understanding and remembering detailed or complex
instructions and mild limitations in understanding and
remembering very short and simple instructions. She displays
mild to moderate limitations in being able to carry out
instructions, to attend and concentrate, and to work without
supervision. She displays mild to moderate limitations in her
ability to interact with the public, with co-workers, and
with supervisors. She displays mild to moderate limitations
in her ability to adapt to changes in the workplace, to be
aware of normal hazards, and to react appropriately. She
displays mild to moderate limitations in her ability to use
public transportation or travel to unfamiliar places.
Leah Holly, D.O.
Holly is a non-examining consultative examiner who reviewed
Plaintiff's records on June 7, 2013. AR 95. It is unclear
whether the ALJ adopted her opinion, and he did not
specifically assign weight to it. AR 15. In the Physical RFC
Assessment portion of Dr. Holly's report, Dr. Holly
concluded that Plaintiff had the following exertional
limitations: Plaintiff could occasionally lift or carry 20
pounds; frequently lift or carry 10 pounds; stand and/or walk
for six hours in an eight hour workday; sit with normal
breaks for six hours in an eight hour workday; and Plaintiff
has an unlimited capacity to push and/or pull “other
than shown, for lift and/or carry[.]” AR 93. Dr. Holly
also opined that although Plaintiff had postural limitations,
she could frequently climb ramps, stairs, ladders, ropes, and
scaffolds, and had an unlimited capacity to balance, stoop,
kneel, crouch, and crawl. AR 93-94.
Holly further concluded that while Plaintiff did not have
manipulative, visual, or communicative limitations, she did
have environmental limitations. AR 94. Dr. Holly opined that
Plaintiff must avoid even moderate exposure to extreme cold
and avoid concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation. AR 94. As explanation for her
environmental limitations, Dr. Holly indicated that although
Plaintiff stated that she had been to the Emergency
Department of her local hospital because of her asthma, Dr.
Holly's review of Plaintiff's medical records
indicated that she had actually gone for reasons unrelated to
her asthma. See AR 94.
Howard Atkins, Ph.D.
Atkins is a non-examining consultative examiner who reviewed
Plaintiff's records on June 7, 2013. AR 96. Although the
ALJ did not specifically assign weight to Dr. Atkins's
opinion, he adopted it. AR 15. In assessing Plaintiff, Dr.
Atkins appears to have reviewed Dr. McGaughey's opinion
and related medical records from February 2012 to August
2012. AR 91. In the “Mental RFC Assessment”
portion of Dr. Atkins's report, he opined that Plaintiff
did not have understanding and memory limitations, but did
have sustained concentration and persistence limitations. AR
96. Dr. Atkins rated Plaintiff's sustained concentration
and persistence limitations as follows [AR 96]:
Not significantly limited in:
(1) Ability to carry out very short and simple instructions;
(2) Ability to sustain an ordinary routine without special
(3) Ability to work in coordination with or in proximity to
others without being distracted by them; and
(4) Ability to make simple work-related decisions.
Moderately limited in:
(1) Ability to carry out detailed instructions;
(2) Ability to maintain attention and concentration for
(3) Ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary
(4) Ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to
perform at a consistent pace without an ...