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Bernal v. Berryhill

United States District Court, D. New Mexico

April 26, 2018

FRANK ANTHONY BERNAL, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          CLARIFICATION OF PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH United States Magistrate Judge

         This matter comes before me on the Court's Order Recommitting to Magistrate Judge for Further Clarification of its Proposed Findings and Recommended Disposition. Doc. 33. In its Order, the Court recommits to me the Proposed Findings and Recommended Disposition (“PFRD”), in part, to clarify three issues. First, the Court asks whether it was harmless error for the Administrative Law Judge (“ALJ”) to fail to address Listing ¶ 12.02, Organic Mental Disorder, when in order to meet the Listing ¶ 12.02 criteria, a plaintiff must establish either Paragraph A and Paragraph B or alternatively Paragraph C, and the ALJ made no findings about whether Plaintiff met the definition of ¶ 12.02 or the criteria found in Paragraph C. Id. at 2. Second, the Court inquires whether the PFRD made a finding that a “wide range of issues [could] precipitate ‘special education'” based on evidence in the record. Id. Third, the Court seeks to clarify whether the fact that a consulting physician's report should be properly characterized as “clinical findings” instead of “treatment notes” changes the analysis regarding whether the ALJ gave proper weight to the report. Id. I will address each of these issues in turn.

         A. The ALJ's failure to address Listing ¶ 12.02 and its potential applicability to Plaintiff does not constitute reversible error.

         The Court first asks whether it was harmless error for the ALJ to fail to address Listing ¶ 12.02, Organic Mental Disorder, when to meet the Listing ¶ 12.02 criteria, a plaintiff must meet either Paragraph A and Paragraph B or, alternatively, Paragraph C, and the ALJ made no findings about whether Plaintiff met the definition of ¶ 12.02 or the criteria found in Paragraph C. Id. at 2.

         To begin, the ALJ was not required to consider Listing ¶ 12.02, because the ALJ should “‘be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored, ' and the ALJ ‘may ordinarily require counsel to identify the issue or issues requiring further development.'” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (quoting Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997)). Plaintiff was represented by counsel in the proceedings before the ALJ, and counsel did not raise Listing ¶ 12.02 as a basis for a finding of disability before the ALJ. See generally AR at 34-70. Instead, counsel proposed only Listing ¶ 12.05C as a listing that Plaintiff's impairments might meet or medically equal. AR at 42-43. It is not the ALJ's responsibility to adopt counsel's role by crafting counsel's arguments for them. See Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008) (“the ALJ is not required to act as the claimant's advocate [.]”). Plaintiff had the burden at step three to present evidence that established that his impairments met or medically equaled the listing. Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). His counsel did not so much as mention Listing ¶ 12.02. As such, the ALJ committed no error by failing to analyze the applicability of Listing ¶ 12.02 in her opinion.

         However, even if the ALJ were required to consider the applicability of Listing ¶ 12.02, her failure to do so constitutes harmless error, because Plaintiff could not have met the requirements of Listing ¶ 12.02 in light of the ALJ's analysis regarding the applicability of Listings ¶¶ 12.04, 12.05, and 12.06. To clarify, Listing ¶ 12.02 defines qualifying organic mental disorders as “[p]sychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.” 20 CFR Pt. 404, Subpt. P, App. 1 § 12.02 (Aug. 12, 2015) (emphasis added). A plaintiff will be found to have the required level of severity for the listed impairment “when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.” Id.[1]

         A claimant may first attempt to meet the definition by attempting to meet both Paragraph A and Paragraph B. Pertinent here, under Paragraph B, a claimant must show that the criteria met under Paragraph A[2] have resulted in at least two of the following: (1) marked restriction in activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. Id. § 12.02B. These criteria are identical to the Paragraph B criteria of Listings ¶¶12.04 and 12.06, and to the Paragraph D criteria of Listing ¶ 12.05. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.02B, 12.04B, 12.05D, 12.06B. As expressed in my PFRD, the ALJ explicitly ruled out the applicability of Listings ¶¶ 12.04, 12.05, and 12.06, thereby ruling out Paragraph B of § 12.02. See AR at 17-18; see also doc. 30 at 13. The ALJ thoroughly discussed the evidence of record pertaining to these criteria, and ultimately concluded that “[b]ecause [Plaintiff's] mental impairments do not cause at least two ‘marked' limitations or one ‘marked' limitation and ‘repeated' episodes of decompensation, each of extended duration, the ‘paragraph B' criteria [of Listings ¶¶ 12.04 and 12.06] (‘paragraph D' criteria of listing ¶ 12.05) are not satisfied.” AR at 18. As such, had the ALJ analyzed the applicability of Listing ¶ 12.02, under Paragraphs A and B, she would have similarly concluded that Plaintiff's impairment did not meet or medically equal that listing.

         Next, assuming Plaintiff's impairment could meet the listing requirements of ¶ 12.02 by meeting Paragraph C alone, Plaintiff's argument that the ALJ erred by not discussing that paragraph similarly fails. Paragraph C requires the following:

Medically documented history of a chronic organic mental disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

20 CFR Pt. 404, Subpt. P, App. 1 § 12.02.

         First, even assuming that Plaintiff has provided sufficient evidence to make a finding that Plaintiff meets part one of Paragraph C-i.e., that Plaintiff suffers from a chronic organic mental disorder of at least 2 years' duration causing more than a minimal limitation of ability to do basic work activities-the ALJ's opinion found that Plaintiff does not meet part two of Paragraph C, which requires him to meet one of the three subsections. Specifically, the ALJ did consider whether Plaintiff met any of these subsections in her opinion: “[t]here is no evidence in the medical record that the claimant suffers from: (1) repeated episodes of decompensation; (2) an inability to function outside of a highly supportive living arrangement; or (3) a residual disease process that results in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the claimant to decompensate.” AR at 18. As a result, the ALJ ...


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