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Burkholder v. Berryhill

United States District Court, D. New Mexico

March 13, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 17) filed May 22, 2017, in support of Plaintiff Crystal Elaine Burkholder'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 XVI supplemental security income benefits. On August 28, 2017, Plaintiff filed her Motion to Remand or Reverse (“Motion”). (Doc. 24.) The Commissioner filed a Response in opposition on October 13, 2017 (Doc. 26), and Plaintiff filed a Reply on November 13, 2017. (Doc. 27.) 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 Crystal Elaine Burkholder (“Ms. Burkholder”) alleges that she became disabled on February 6, 2013, at the age of twenty-six because of depression, learning disability, anxiety and separation issues. (Tr. 175-76, 179.[3]) Ms. Burkholder completed the tenth grade, [4] and worked as a grocery store cashier, fast food helper, and department store inventory control peer. (Tr. 180.)

         On February 6, 2013, Ms. Burkholder protectively filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 150-56, 175.) Ms. Burkholder's application was initially denied on August 27, 2013. (Tr. 60-71, 72, 90-93.) It was denied again at reconsideration on November 4, 2013. (Tr. 73-86, 87, 97-101.) On December 3, 2013, Ms. Burkholder requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 103-05.) ALJ Barry O'Melinn conducted a hearing on July 27, 2015. (Tr. 28-55.) Ms. Burkholder appeared in person at the hearing with attorney Michelle Baca. (Id.) The ALJ took testimony from Ms. Burkholder (Tr. 34-51), and an impartial vocational expert (“VE”), Leslie White. (Tr. 51-54.) On October 14, 2015, the ALJ issued an unfavorable decision. (Tr. 9-23.) On November 9, 2016, the Appeals Council issued its decision denying Ms. Burkholder's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On December 27, 2016, Ms. Burkholder 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 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. § 1382(a)(3)(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.”[5] 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. § 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. § 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. § 416.920(a)(4) (supplemental security income disability benefits); 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. Burkholder was not disabled at step five of the sequential evaluation. Specifically, the ALJ found that Ms. Burkholder had not engaged in substantial gainful activity since her alleged onset date of February 6, 2013, [6] and had severe impairments of major depressive disorder, generalized anxiety disorder, post-traumatic stress disorder, and learning disorder that did not meet or medically equal the severity of a listing. (Tr. 14-15.) He found that Ms. Burkholder had the residual functional capacity to perform a full range of work at all exertional levels, but that she had the following nonexertional limitations:

she can understand, carry out, and remember simple instructions and make commensurate work related decisions; can respond appropriately to supervision, co-workers, and work situations. She is able to deal with routine changes in the work setting and maintain concentration, persistence, and pace for up to and including two hours at a time, with normal breaks throughout the workday. She should have no interaction with the public. Work can be around co-workers throughout the day, but should require no more than occasional interaction with co-workers.

         (Tr. 16.) The ALJ determined that Ms. Burkholder had no past relevant work experience. (Tr. 22.) Based on the RFC and the testimony of the VE, the ALJ concluded that there were jobs that existed in significant numbers in the national economy that Ms. Burkholder could perform. (Tr. 22-23.) For this reason, the ALJ determined that Ms. Burkholder was not disabled. (Tr. 23.)

         In support of her Motion, Ms. Burkholder asserts (1) that the ALJ failed to use correct legal standards in weighing the medical source evidence; and (2) that the ALJ failed to resolve the conflict between the VE testimony and the reasoning level of the jobs identified, which Ms. Burkholder alleges exceeds the ALJ's RFC. (Doc. 24 at 5-20.) The Court finds grounds for remand as discussed below.

         A. Medical Evidence

         1. Partners in Wellness

         New Mexico Children, Youth, and Families Department (“CYFD”) referred Ms. Burkholder to Partners in Wellness after she was accused of child abuse and neglect. (Tr. 288-304.) CYFD had removed Ms. Burkholder's children from her, and her participation in parenting classes, anger management classes, and individual counseling was a condition of having her children returned. (Id.) On February 27, 2013, LPCC Christina Bryant did an intake. (Id.) Ms. Burkholder reported she was diagnosed with a learning disability in elementary school, that she attended special education classes full time, and that she left school in her junior year. (Tr. 295-96.) She reported difficulties with memory and exhibited poor insight and judgment. (Tr. 293.) She reported a history of auditory hallucinations, having last heard voices in her head about a year prior. (Tr. 288, 293) She stated that taking Risperdal stopped the voices. (Id.) She also reported a history of suicidal ideation, with the most recent occurring in relation to her not having her children in the days prior to intake. (Id.)

         LPCC Bryant assessed Axis I diagnoses of major depression disorder, single episode, severe, adjustment disorder with anxiety, and parent/child problems. (Tr. 288-89.) She assigned a GAF score of 35.[7] (Tr. 291.) LPCC Bryant noted that Ms. Burkholder was Core Service Agency (CSA) eligible with a GAF of 35 and due to her recent suicidal ideations, depression, anxiety, indicators of codependency, history of psychosis, and function impairments.[8] (Id.) Ms. Burkholder declined CSA services. (Id.)

         a. Individual Counseling

         (1) Brandy Samaniego, LISW

         On March 8, 2013, Ms. Burkholder began individual counseling sessions with Brandy Samaniego, LISW. (Tr. 354.) She attended seventeen individual counseling sessions with LISW Samaniego over the course of five months, from March 8, 2013, through August 7, 2013, while at Partners in Wellness.[9] (Tr. 354, 355, 360, 363, 366, 372, 380, 387, 394, 407, 410, 413, 418, 419, 422, 424, 425.) LISW Samaniego noted, inter alia, that Ms. Burkholder was not taking responsibility for her situation and was blaming others (Tr. 354, 360); that her progress was slow, and that her learning disability and lack of common sense was causing her to make poor decisions (Tr. 363, 366, 407, 422, 424); that she had real parenting deficits (Tr. 380, 387, 410); and that Ms. she struggled with aggression (Tr. 419). LISW Samaniego also noted that Ms. Burkholder was attempting, along with her mother, to keep their house clean (Tr. 363, 372); and that she was demonstrating increased awareness and was trying to be a more responsible parent (Tr. 413).

         On July 22, 2015, LISW Samaniego prepared a Clinical Assessment of Ms. Burkholder. (Tr. 493-97.) LISW Samaniego stated in relevant part that

[t]his provider has had a fairly long history with the client and has always suspected either an autism spectrum diagnosis or cognitive disorder diagnosis. The client presents physically as a normal 28 year old woman, however, one could tell fairly quickly into conversation, that she has some deficits, though it is difficult to pinpoint exactly what they are. Clearly, [Ms. Burkholder's] decision-making abilities have affected her; however, she has demonstrated motivation and determination in the area of her children and is dedicated to getting their lives back to “normal.” [Ms. Burkholder's] attempts to do everything that is asked of her, however, due to her impulsivity, she can often become impatient when dealing with others, and this comes off as uncooperative or angry.
. . .
In this provider's experience of the client, and per her own report, she is impulsive, quick to anger, has trouble with comprehension in most situations, does not always think through situations or is able to foresee all possible consequences, odd affect, immature for her age, and borderline intellectual functioning.

         (Tr. 496-97.) LISW Samaniego noted an Axis I diagnosis of Mood Disorder, NOS; an Axis II diagnosis of Borderline Intellectual Functioning; and assessed a GAF score of 50.[10]

         The ALJ did not evaluate or discuss LISW Samaniego's assessment. He did, however, generally refer to the Partners in Wellness records, [11] and specifically referenced in his determination only two of LISW Samaniego's treatment notes. In the first reference, the ALJ stated that

[Ms. Burkholder] was angry and depressed over the removal of her children, but she met all the demands required by CYFD, and in turn, she was able to have her children returned. Licensed social worker, Brandy Samaniego, noted on July 3, 2013, that she has seen significant improvement in her anger and demonstrating increased responsibility.

(Tr. 18.) The ALJ referenced LISW Samaniego's treatment notes a second time in his determination when discussing Ms. Burkholder's credibility. He stated that

[f]inally, notes from Ms. Samaniego dated May 24, 2013, reflect that [Ms. Burkholder] attempted to get out of doing community service and finding a job as part of the condition of her probation, by asking Ms. Samaniego to state she is unable to work. She stated she does not want to work because she does not want to leave her children with her mother, as she is “too old.” Ms. Samaniego reminded her that she has never presented too impaired to work or do community service, and that the question would ...

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