Matlock v. Berryhill

          MEMORANDUM OPINION AND ORDER ^[2]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 15) filed April 26, 2017, in support of Plaintiff Christine Matlock's (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits. On July 28, 2017, Plaintiff filed her Motion to Remand or Reverse (“Motion”). (Doc. 22.) The Commissioner filed a Response in opposition on September 22, 2017 (Doc. 24), and Plaintiff filed a Reply on October 11, 2017. (Doc. 25.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is well taken and is GRANTED.

         I. Background and Procedural Record

         Claimant Christine Matlock (“Ms. Matlock”) alleges that she became disabled on July 15, 2009, at the age of forty because of fibromyalgia, back pain, foot pain, neck pain, chronic sleeping disorder, depression, mood disorder, blurred vision, breathing problems, and thyroid problems. (Tr. 252, 271.^[3]) Ms. Matlock completed high school in 1986, and completed lab assistant, surgical technician, and certified nurse assistant courses in 2004, 2005 and 2006, respectively. (Tr. 272.) Ms. Matlock worked as a caregiver, clerk/cashier, lab assistant, surgical technician, office clerk, and waitress/cook. (Tr. 257.) Ms. Matlock stopped working on July 15, 2009, because of her medical conditions. (Tr. 271.)

         On November 26, 2012, Ms. Matlock protectively filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 219-222, 253.) Ms. Matlock concurrently filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 223-28.) Ms. Matlock's applications were initially denied on February 22, 2013. (Tr. 69-82, 83-96, 97, 98, 131-35.) They were denied again at reconsideration on August 9, 2013. (Tr. 99-113, 114-28, 129, 130, 138-41.) On October 1, 2013, Ms. Matlock requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 142-43.) ALJ Myriam C. Fernandez Rice conducted a hearing on May 14, 2015. (Tr. 33-67.) Ms. Matlock appeared in person at the hearing with attorney representative Michael Armstrong. (Id.) The ALJ took testimony from Ms. Matlock (Tr. 39-59, 60-63), and an impartial vocational expert (“VE”), Judith Beard. (Tr. 59-61, 63-66.) On June 22, 2015, the ALJ issued an unfavorable decision. (Tr. 14-27.)

         On September 3, 2016, the Appeals Council issued its decision denying Ms. Matlock's request for review and upholding the ALJ's final decision. (Tr. 1-4.) On November 4, 2016, Ms. Matlock timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled for purposes of Social Security disability insurance benefits if 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). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”^[4] If the claimant is engaged in substantial gainful activity, she is not disabled regardless of her medical condition.

(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, she is not disabled.

(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.

(4) If, however, the claimant's impairments do not meet or equal in severity one of the listing described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of claimant's past work. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.

(5) If the claimant does not have the RFC to perform her past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10^th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10^th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10^th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10^th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported by “relevant evidence . . . 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[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10^th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10^th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10^th Cir. 1996).

         III. Analysis

         The ALJ made her decision that Ms. Matlock was not disabled at step four of the sequential evaluation. She found that Ms. Matlock had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(a) and 416.967(a).

Specifically, the claimant is able to lift up to 20 pounds on an occasional basis; lift or carry up to 10 pounds frequently; stand or walk for approximately six hours per eight-hour workday; and sit for approximately six hours per eight-hour workday, with normal breaks. From a mental standpoint, the claimant is able to understand, remember, and carry out detailed, but not complex instructions; make decisions; attend and concentrate for extended periods of time; accept instructions; and respond appropriately to changes in routine work settings. She should have only occasional in person interaction with the public and co-workers, but no limitations with telephone interactions.

         (Tr. 22.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Matlock was capable of performing her past relevant work as a medical coder and that she was not disabled. (Tr. 27.)

         Ms. Matlock argues in support of her Motion that (1) the ALJ's decision does not include a necessary function-by-function assessment of Ms. Matlock's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis; and (2) the ALJ failed to properly evaluate the medical opinions of State agency examining psychological consultant Louis Wynne, Ph.D., State agency nonexamining psychological consultant Carol Mohney, Ph.D., and Treating Psychologist Bradley Samuel, Ph.D. (Doc. 22 at 8-16.) The Court finds grounds for remand as discussed below.

         A. Mental Impairment Medical Opinion Evidence

         1. State Agency Examining Psychological Consultant Louis Wynne, Ph.D.

         On February 3, 2012, Ms. Matlock presented to State agency examining psychological consultant Louis Wynne, Ph.D., for a disability determination examination.^[5] (Tr. 378-81.) Ms. Matlock reported a medical history of fibromyalgia, possible heart murmur, periodic breathing difficulties, a microplasm, Chlamydia-pneumonia, hypothyroidism, an auto-immune condition related to her eyes, spine issues, and possible degenerative disc disease. (Tr. 380.) She also described falling off a swing as a child and hitting her head; falling off a horse as a child and hitting her head on a rock; and hitting her head against bunk beds more than once as a child - all without medical attention. (Tr. 379.) Ms. Matlock reported a mental health history of depression in her mid-20s due to an abusive relationship. (Tr. 380.) Dr. Wynne noted that (1) Ms. Matlock maintained good eye contact, related easily, and was cooperative; (2) her affect was flat, but she was alert and knew the purpose of the examination; (3) she spoke clearly, and loudness, emphasis, tonality, and amount of speech were all within normal limits; (4) she denied any alterations in consciousness and her sensorium seemed clear with no indication of any drugs or psychotic process; and (5) she was not a good historian. (Tr. 378.) On mental status exam, Ms. Matlock was (1) able to copy a pair of intersecting pentagons; (2) remember and carry out a written three-part set of directions; (3) count backwards from 100 both by threes and by sevens; (4) remember a set of four digits forwards and backwards; (5) spell a common five-letter word backwards; (6) remember two of three words at an interval of three minutes with two intervening tasks; and (7) unevenly perform operations of simple arithmetic. (Tr. 379.) Dr. Wynne observed that Ms. Matlock's judgment, based on her answers to Wechsler Adult Intelligence Scale-type comprehension questions, was unimpaired. (Id.) Dr. Wynne estimated Ms. Matlock was probably of average intelligence before puberty, but that her current intelligence was probably lower. (Id.)

Dr. Wynne summarized that

[Ms. Matlock] is a 43-year-old woman who looked her age. She cooperated fully with this examination and there is no reason to suspect malingering or dissimulation.

She can read and understand basic written instructions and her concentration and ability to persist at simple work tasks are no more than mildly impaired. She could not interact well with the general public, her coworkers, or her supervisors, and she also might have difficulty adapting to changes in the workplace. She could recognize obvious hazards and manage her own benefit payments.

         (Tr. 380.) Dr. Wynne's Axis I diagnoses included major depression, recurrent, severe, without psychotic features, and mood disorder/depression due to severe chronic illness. (Tr. 381.) Dr. Wynne noted an Axis III diagnosis of history of head injury “[p]er claimant allegations.” (Id.) Dr. Wynne assessed a GAF score of 48.^[6] (Id.)

         The ALJ accorded only partial weight to Dr. Wynne's opinion explaining that (1) a good portion of his opinion was based on Ms. Matlock's self reports of a history of head injuries; (2) Dr. Wynne indicated that Ms. Matlock was a poor historian and her claims should be verified before any reliance was placed on them; (3) Ms. Matlock performed well on the mental exam testing; (4) Ms. Matlock was currently attending a certificate course for medical billing/coding, which involves more than basic simple instructions and tasks; and (5) Dr. Wynne does not have a treating relationship with the claimant and his evaluation was only a snapshot of the claimant's overall functional limitations. (Tr. 24-25.)

         2. State Agency Nonexamining Psychological Consultant Carol Mohney, Ph.D.

         On February 21, 2013, State agency nonexamining psychological consultant Carol Mohney, Ph.D., reviewed Ms. Matlock's records at the initial level of evaluating Ms. Matlock's disability claim.^[7] (Tr. 75-76, 79-80.) Dr. Mohney prepared a Psychiatric Review Technique Form (“PRTF”)^[8] and a Mental Residual Functional Capacity Assessment (“MRFCA”). (Id.) In Section I of the MRFCA, Dr. Mohney assessed that Ms. Matlock had no limitations in her ability to (1) to respond appropriately to changes in the work setting; (2) to be aware of normal hazards and take appropriate precautions; (3) to travel in unfamiliar places or use public transportation; and (4) to set realistic goals or make plans independently of others. (Tr. 80.) Dr. Mohney assessed that she was not significantly limited in her ability (1) to remember locations and worklike procedures; (2) to understand and remember very short and simple instructions; (3) to carry out very short and simple instructions; (4) to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; (5) to make simple work-related decisions; (6) 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; (7) to ask simple questions or request assistance; and (8) to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (Tr. 79-80.) Dr. Mohney assessed that Ms. Matlock was moderately limited in her ability to (1) understand and remember detailed instructions; (2) to carry out detailed instructions; (3) to maintain attention and concentration for extended periods; (4) to sustain an ordinary routine without special supervision; (5) to work in coordination with or in proximity to others without being distracted by them; (6) to interact appropriately with the general public; (7) to accept instructions and respond appropriately to criticism from supervisors; and (8) to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Id.) In Section III of the MRFCA, Dr. Mohney explained that “[b]ased on the MER and ADLs, the claimant is capable of performing simple, unskilled work involving limited interactions with others.” (Tr. 80.)

         The ALJ noted in her determination, without more, that “[t]he State agency determined that the claimant could perform simple unskilled work with limited interactions with others[.]” (Tr. 26.)

         3. State Agency Nonexamining Psychological Consultant Paul Cherry, Ph.D.

         On August 1, 2013, State agency nonexamining psychological consultant Paul Cherry, Ph.D., reviewed Ms. Matlock's records at the reconsideration level of evaluating Ms. Matlock's disability claim.^[9] (Tr. 105-06, 109-111.) Dr. Cherry's MRFCA findings and assessment were identical to Dr. Mohney's, (Tr. 79-80, 109-111), and Dr. Cherry concluded that based on the medical evidence record and Ms. Matlock's activities of daily living that Ms. Matlock was capable of performing simple, unskilled work involving limited interactions with others. (Tr. 111.)

         The ALJ noted in her determination, without more, that “[t]he State agency determined that the claimant could perform simple unskilled work with limited interactions with others[.]” (Tr. 26.)

         4. Treating Psychologist Bradley Samuel, Ph.D.

         On September 23, 2014, Ms. Matlock presented to Bradley Samuel, Ph.D., at the University of New Mexico's Department of Family and Community Medicine. (Tr. 471-72.) Ms. Matlock was referred by her primary care physician Valerie Carrejo, M.D., who stated “[t]his patient has a history of depression, anxiety and is requesting counseling.” (Tr. 471.) Ms. Matlock reported a history of chronic pain in the form of fibromyalgia, sleeplessness, problems with blurry vision, depression, anxiety, and reports that all were chronic conditions. (Id.) She reported depression on and off since childhood. (Id.) She stated that her medical conditions began 20 years ago related to multiple causes, but in particular that she “swallowed a filling at a dentist's office” resulting in high mercury in her blood. (Tr. 470-71.) Ms. Matlock described her symptoms of depression and fibromyalgia as “foggy brain, chronic pain, as noted sleeping, hypersensitive to food, meds, thirst.” (Tr. 471.) She also described depression as sadness, “at which point she became tearful.” (Id.) Ms. Matlock endorsed passive suicidal ideation. (Id.)

         On mental status exam, Dr. Samuel noted that Ms. Matlock was (1) very laid back, calm demeanor; (2) described herself as a “pushover”; (3) oriented in all spheres; (4) very talkative and anxious; (5) suicidal ideation noted - risk deemed low to moderate - will monitor; (6) attention, memory and ...