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Milner v. Berryhill

United States District Court, D. New Mexico

January 18, 2018

SANYA KAY MILNER, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         I. BACKGROUND

         Plaintiff 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.

         On 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.

         On 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.

         II. PLAINTIFF'S CLAIMS

         On 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.

         Second, 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.

         III. APPLICABLE LAW

         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[1] 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.”)

         The 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 at 1214.

         As for 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).

         Ultimately, 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 at 760.

         B. Sequential Evaluation Process

         The SSA 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. 1987).

         If the 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 detail).

         IV. THE ALJ'S DECISION

         The ALJ 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.

         In 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)[2], 1.07 (fracture of an upper extremity)[3], 12.06 (anxiety-related disorders)[4], and listings under Section 6.00 (genitourinary disorders)[5] and 14.00 (immune system)[6]. 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.

         After 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.

         To 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.

         The ALJ 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.

         Specifically regarding Plaintiff's mental impairments, the ALJ compared Plaintiff's testimony with the record, and found that:

[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 hearing.

AR 15.

         A. Opinion evidence

         To determine Plaintiff's RFC, the ALJ considered the opinions of Dr. McGaughey, Dr. Holly, Dr. Atkins, and Christina Wampler, Licensed Mental Health Counselor.[7] 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.

         The ALJ 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.”[8] AR 19.

         Dr. Mark C. McGaughey, Ph.D.

         Dr. 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.

         With 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.

         Regarding 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.[9] AR 375.

         Dr. 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.

AR 376.

         Dr. Leah Holly, D.O.

         Dr. 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.

         Dr. 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.

         Dr. Howard Atkins, Ph.D.

         Dr. 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 supervision;
(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 extended periods;
(3) Ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and
(4) Ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an ...

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