United States District Court, D. New Mexico
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
(10th 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 (10th 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 (10th Cir. 2004); Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th 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 (10th 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 (10th 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
(10th 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 ...