United States District Court, D. New Mexico
ORDER STAYING PROCEEDINGS PENDING TENTH CIRCUIT'S
DECISION IN VALLEJO V. BERRYHILL, NO. 17-1452
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
Trujillo seeks review of the Social Security
Administration's final action denying her disability
insurance benefits and supplemental security income. The crux
of the appeal is whether the Administrative Law Judge
(“ALJ”) properly considered Ms. Trujillo's
complaints of pain and the medical evidence in concluding she
retained the residual functional capacity (“RFC”)
to perform light work. According to Ms. Trujillo and as
supported by a “medical source statement” from
Colicia Meyerowitz, M.D., Ms. Trujillo's pain prevents
her from standing more than an hour; walking more than 100
feet; sitting more than twenty minutes at a time; and lifting
more than a bag of groceries. (AR 1218-19). If the ALJ was
required to accept these restrictions, the ALJ's decision
must be reversed because Ms. Trujillo is incapable of light
work. Presiding by consent, see 28 U.S.C. §
636(c), the Court has thoroughly reviewed the administrative
record, Ms. Trujillo's motion to remand (Doc. 33), the
agency's response in opposition (Doc. 34), and Ms.
Trujillo' reply. (Doc. 36). Having done so, the Court
concludes a stay is warranted pending the Tenth Circuit's
decision in Vallejo v. Berryhill, No. 17-1452 (10th
Cir., filed Dec. 19, 2017), which will provide guidance on
how to address Dr. Meyerowitz's opinion.
crafting the RFC, the ALJ contrasted Ms. Trujillo's
complaints of debilitating pain with largely negative
diagnostic findings and Ms. Trujillo's robust activities
of daily living. (AR 35-43). While the ALJ acknowledged Ms.
Trujillo's pain, the ALJ concluded the disabling effects
were not entirely supported in the record. (AR 43). The
specific limitations the ALJ assessed derive from the
opinions of two non-examining, state-agency consultants, who
evaluated the medical evidence as of 2013 and concluded Ms.
Trujillo was able to (1) stand or walk for six hours in day;
(2) “occasionally lift, carry, push and pull twenty
pounds”; (3) “frequently lift, carry, push, and
pull ten pounds”; (4) occasionally climb ramps and
stairs, but never ladders, ropes or scaffolds; (5) frequently
balance; (6) occasionally stoop, kneel, crouch and crawl, but
must avoid concentrated exposure to extreme cold, vibrations
and hazards. (AR 42).
to Ms. Trujillo's arguments, the Court is not convinced
the ALJ erred in evaluating the evidence. The ALJ took an
exhaustive approach to the record before her, noting almost
every instance where Ms. Trujillo reported pain. (AR 35-43).
The ALJ appropriately acknowledged objective diagnostic
findings, Ms. Trujillo's tenderness to palpation, and
issues with range of motion. (Id.) The ALJ also
examined Ms. Trujillo's reports to her providers about
her daily activities, evaluated her first-hand accounts of
those actives, and discussed providers' recommendations
to change her lifestyle-to become more active.
(Id.). What Ms. Trujillo ultimately asks the Court
to do is to reweigh the evidence, which the Court may not.
See Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th
Cir. 2005). Even if the Court could read the record
differently, substantial evidence nonetheless supports the
ALJ's decision. See id.
aspect of the case, however, prevents denial of Ms.
Trujillo's motion to reverse and remand. After the ALJ
rendered her decision, Ms. Trujillo submitted Dr.
Meyerowitz's opinion to the Appeals Council. (AR 7-28).
Dr. Meyerowitz, who began treating Ms. Trujillo in June 2013,
concluded in a “medical source statement” dated
May 3, 2016 that Ms. Trujillo could only sit for fifteen
minutes and stand for ten minutes continuously. (AR 1204).
Moreover, within an 8 hour work day, Ms. Trujillo could stand
and walk less than two hours and sit for about four hours.
(AR 1204). Functionally, Dr. Meyerowitz's assessment
means Ms. Trujillo cannot perform light work. See 20
C.F.R. §§ 404.1567(b), 416.967(b); SSR 83-10, 1983
SSR LEXIS 30 at *14 (Jan. 1, 1983) (stating “light work
requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday”).
Significantly, up until this point, no doctor that had
examined Ms. Trujillo had assessed how Ms. Trujillo's
pain translates into an inability to perform work. Although
consultants reviewed her records, they did not have the
benefit of in-person interaction and observation. See
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.
2004) (explaining that, typically, an ALJ should give greater
weight to the opinion of a treating physician than to that of
a consultant or non-examining physician).
Court cannot fault the ALJ. Dr. Meyerowitz's medical
source statement was not before the ALJ. Equally true,
however, is that had Ms. Trujillo provided the ALJ with Dr.
Meyerowitz's opinion, the ALJ would have had to conduct a
two-step analysis to first determine whether the opinion was
entitled to controlling weight, and if not, what weight to
give the opinion. See Langley, 373 F.3d at 1119. In
determining weight, the ALJ would also have been obligated to
assess six regulatory factors, ranging from the length of the
treating relationship to the consistency of the opinion with
the record. Id. (citation omitted). Further, had Dr.
Meyerowitz's evaluation been available to the ALJ, the
ALJ's determination as written would not be supported by
substantial evidence. See Wall v. Astrue, 561 F.3d
1048 (10th Cir. 2009) (directing courts to
“meticulously examine the record as a whole, including
anything that may undercut or detract from the ALJ's
findings in order to determine if the substantiality test has
been met”). Finally, under established law, the Court
may not perform the treating physician analysis or assess the
evidence for the ALJ. See Thompson v. Sullivan, 987
F.2d 1482, 1487 (10th Cir. 1993). In short, if Dr.
Meyerowitz's opinion is included in the record, the
ALJ's decision is legally unsound and unsupported by
traditional principles of administrative law, the absence of
Dr. Meyerowitz's medical source statement from the
materials before the ALJ would normally mean the opinion is
not part of the administrative record and not reviewable
here. See, e.g., New Mexico Env. Imp. Div. v.
Thomas, 789 F.2d 825, 834 (10th Cir. 1986) (explaining
that information not presented to and thus not considered by
the agency decision maker is not part of the administrative
record). Not so in the Social Security context: the Appeal
Council's denial of review of Dr. Meyerowitz's
opinion means it becomes part of the record. See Vallejo
v. Berryhill, 849 F.3d 951, 955 (10th. Cir. 2017)
(citing 20 C.F.R § 416.927(e)(3)). Yet without the
ALJ's consideration of this new information in the first
place, the ALJ's decision necessarily is unsound, albeit
without any fault to the ALJ; the records were not yet in the
record. See Thompson, 987 F.2d at 1487;
Langley, 373 F.3d at 1119. Thus, the circumstances
counsel, if not blatantly require, remand for the ALJ to
weigh Dr. Meyerowitz's opinions.
the Tenth Circuit appears to have foreclosed remand as an
option. In Vallejo, the court of appeals reversed
the district court's decision to remand the case to the
Appeals Council for failure to apply the treating physician
rule to an assessment that postdated the ALJ's
determination. 849 F.3d at 955. As in this case, the Appeals
Council, without explanation, denied review for the sole
reason that the opinion would not change the case's
outcome. In reversing the district court, the court of
appeals rejected both the contention that the Appeals Council
had to make reasoned findings as well as the alternative
argument that the district court “couldn't
determine whether substantial evidence supports the
Commissioner's decision” without the ALJ's
evaluation in the first place. Id. at 955 (reasoning
that although “an express analysis of the Appeals
Council's determination would be helpful for purposes of
judicial review nothing . . . requires such an analysis where
new evidence is submitted and the Appeals Council denies
review”). The court of appeals explained that the
district court's “only option was to conduct a
substantial-evidence review by assessing the entire agency
record, including [the treating doctor's] never-before
assessed opinion.” Id.
internal tension that Vallejo creates is not lost on
this Court and was not lost on the district court on remand.
The district court in Vallejo framed the conflict as
This Court has scrutinized the 10th Circuit's decision
and find[s] that it creates a seemingly-inescapable
procedural thicket. Nearly every conceivable approach . . .
[on] remand leads to the same conclusion- that the
Commissioner's decision is insufficient-yet the
procedural mechanisms for accomplishing the
apparently-inevitable outcome are often foreclosed . . . .
The Court begins with the fact that [the treating
source's] opinion is now a part of the agency's
record. . . . And because [the source] is a treating
physician of [the plaintiff], the Commissioner is required to
make specific factual findings that address the weight the
adjudicator gave to the treating source's medical opinion
and the reasons for that weight. The failure of the
factfinder to explain the weight given to the treating
physician's opinion is an error of law requiring remand.
Here, the ALJ offered no explanation of the weight given to
[the physician's] opinion because, quite obviously, that
opinion was not yet in the record. . . . Because the Appeals
Council denied review, the ALJ's ruling has thus become
the [agency's] final decision . . . . Therefore, because
neither the ALJ nor the Appeals Council ever made the
necessary findings regarding the weight . . . the final
decision . . . is infected by a legal error that requires
But the 10th Circuit's decision seems to foreclose . . .
remanding the matter to the Commissioner for further
consideration. . . . The 10th Circuit . . . explain[ed] that
. . . the district court's only option was to
conduct a substantial-evidence review by assessing the entire
agency record, including . . . [the] never-before assessed
opinion. But again, . . . the law requires the . . . ALJ to
address the weight to be given to a treating physician's
opinion. The ALJ's . . . decision does not do so, and
thus, the decision is inherently defective and incapable of
surviving a substantial evidence review. Reversal of the
Commissioner's decision and a remand for further fact
finding is the only remedy that could possibly result. It is
difficult to imagine that the 10th Circuit would remand the
matter to this Court simply so that the Court could conduct
an assessment whose outcome was obvious and inevitable, but
that appears to be what has happened.
Thus, it appears to the Court that by accepting [the
doctor's] opinion into the record but refusing to weigh
it, the Commissioner has made a decision that has an
inherently fatal defect. Yet this Court's reading of the
10th Circuit's decision in this and other cases leaves
the Court with no clear procedural ...