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Parraz v. Berryhill

United States District Court, D. New Mexico

May 24, 2018

ARMANDO TREVINO PARRAZ, JR.,, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 15) filed June 23, 2017, in support of Plaintiff Armando Trevino Parraz, Jr.'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 August 18, 2017, Plaintiff filed his Motion to Reverse and Remand For A Rehearing With Supporting Memorandum (“Motion”). (Doc. 18.) The Commissioner filed a Response in opposition on October 19, 2017 (Doc. 19), and Plaintiff filed a Reply on November 3, 2017. (Doc. 22.) 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 Armando Trevino Parraz, Jr. (“Mr. Parraz”) alleges that he became disabled on July 24, 2012, at the age of forty because of posttraumatic stress syndrome (“PTSD”), major depressive disorder, and generalized anxiety. (Tr. 232, 236, 267, 270.[2]) Mr. Parraz completed one year of college and has worked as a jewelry vendor, warehouse door adjuster, call center customer and sales associate, and grocery vendor. (Tr. 271, 278, 312-22.) Mr. Parraz reported he stopped working on July 24, 2012, due to his medical conditions. (Tr. 270.)

         On July 28, 2014, Mr. Parraz 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. 17, 232-35.) He also protectively filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 17, 236-39.) Mr. Parraz's applications were initially denied on February 10, 2015. (Tr. 84, 85, 86-96, 97-107, 142-45, 146-49.) They were denied again at reconsideration on June 30, 2015. (Tr. 108, 109, 110-25, 126-41, 151-53, 154-56.) On August 26, 2015, Mr. Parraz requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 157-58.) The ALJ conducted a hearing on August 10, 2016. (Tr. 41-83.) Mr. Parraz appeared in person at the hearing with attorney representative Michael Armstrong. (Id.) The ALJ took testimony from Mr. Parraz (Tr. 45-76), and an impartial vocational expert (“VE”), Thomas Greiner (Tr. 77-82). On September 29, 2016, ALJ Lillian Richter issued an unfavorable decision. (Tr. 14-34.) On November 29, 2016, the Appeals Council issued its decision denying Mr. Parraz's request for review and upholding the ALJ's final decision. (Tr. 1-4.) On January 31, 2017, Mr. Parraz 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 he 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) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). 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.”[3] If the claimant is engaged in substantial gainful activity, he is not disabled regardless of his 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, he 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 his “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 [his 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 his 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) (disability insurance benefits); 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 Mr. Parraz was not disabled at step four of the sequential evaluation. (Tr. 31-32.) The ALJ, however, also made alternative step five findings that based on Mr. Parraz's age, education, work experience, RFC, and the testimony of the VE, there were other jobs that exist in significant numbers in the national economy that Mr. Parraz could perform. (Tr. 32-33.) Specifically, the ALJ determined that Mr. Parraz met the insured status requirements of the Social Security Act through December 31, 2014, and that Mr. Parraz had not engaged in substantial gainful activity since July 24, 2012. (Tr. 19-20.) She found that Mr. Parraz had mental impairments variously diagnosed to include major depressive disorder, recurrent, severe without psychotic features; borderline personality traits; PTSD; mood disorder, NOS; personality disorder with avoidant, dependent, and histrionic traits; generalized anxiety disorder; dysthymia, panic disorder with agoraphobia; and ADHD combined type. (Tr. 20.) The ALJ also found that Mr. Parraz had nonsevere impairments of cannabis abuse disorder and obesity. (Id.) The ALJ, however, determined that Mr. Parraz's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 21-23.) As a result, the ALJ proceeded to step four and found that Mr. Parraz had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations:

the claimant can perform simple, routine, and repetitive work; with occasional interaction with supervisors and co-workers, and incidental interaction with the public. He cannot perform work at an assembly line production pace or perform work in tandem with other employees. He is limited to making simple work related decisions in a workplace with few changes in the routine work setting.

(Tr. 23.) The ALJ further concluded at step four that Mr. Parraz was able to perform his past relevant work as a stock clerk. (Tr. 31-32.) In the alternative, the ALJ determined at step five that Mr. Parraz could perform work as a cuff folder, DOT No. 685-687-014, and motor polarizer, DOT No. 715.687-090. (Tr. 32-33.)

         In arriving at her RFC finding, the ALJ relied primarily on State agency nonexamining psychological consultant Diane Hyde, Ph.D.'s assessment. (Tr. 28.) Dr. Hyde reviewed Mr. Parraz's medical records and, on June 30, 2015, assessed that (1) he could perform simple and some complex tasks with routine supervision; (2) he could relate to others on a superficial work basis; and (3) could adapt to a simple and some complex work situation. (Tr. 138.) In according great weight to Dr. Hyde's assessment, the ALJ also noted that “more recent evidence supports additional limitations.” (Tr. 28.) The more recent evidence included functional assessments prepared by LPCC Jennifer Webb and psychological consultant Esther Davis, Ph.D. However, while the ALJ's RFC is more restrictive than Dr. Hyde's assessed limitations, the ALJ did not adopt the even more restrictive limitations assessed by LPCC Webb and Dr. Davis.

         Mr. Parraz makes five arguments in support of remand as follows: (1) the ALJ's decision does not include a function-by-function assessment of Mr. Parraz's mental limitations; (2) the ALJ failed to apply the correct legal standard in evaluating Dr. Esther Davis's psychological evaluation and opinion; (3) the ALJ failed to apply the correct legal standard in evaluating LPCC Jennifer Webb's assessment of Mr. Parraz's ability to do work related mental activities; (4) the ALJ failed to resolve the conflict between the VE's testimony and the DOT for the job of stock clerk; and (5) the ALJ's step five findings are not supported by substantial evidence because the number of jobs the VE identified is not reliable. (Doc. 18 at 11-25.) For the reasons discussed below, the Court finds that the ALJ failed to properly evaluate LPCC Webb's assessment pursuant to SSR 06-03p, and failed to properly evaluate Dr. Esther Davis's psychological evaluation and assessment, and remands on these grounds.

         A. Jennifer Webb, LPCC

         On October 18, 2012, Mr. Parraz presented to Valencia Counseling Services and saw LPCC Jennifer Webb on a referral from UNMH.[4] (Tr. 481-84, 487-98.) Mr. Parraz reported his recent hospitalization at UNMH for suicidal ideation and expressed feeling sad and hopeless. (Tr. 483, 487.) After completing an initial evaluation, LPCC Webb indicated Axis I diagnoses of Major Depressive Disorder Recurrent, Severe; Anxiety Disorder, NOS; and Cannabis Abuse. (Tr. 483.) She assessed a GAF score of 53.[5] (Tr. 484.) LPCC Webb stated that Mr. Parraz's condition showed a significant behavioral and psychological syndrome or pattern that substantially or materially impaired his ability to function. (Tr. 496.) LPCC Webb noted that Mr. Parraz was open to treatment and would attend individual counseling and obtain medication management services.[6] (Id.) LPCC Webb indicated that Mr. Parraz would be discharged from treatment when he was able to decrease his anxiety and depression by 50%. (Id.)

         Treatment notes indicate that LPCC Webb counseled Mr. Parraz from October 2012 through January 2016, and referred him for psychiatric evaluation and medication management to CNS Carol Lynn Hunter and NP Carol Mills. (Tr. 481-98, 501-06, 512-19, 522-29, 530-40, 634-48, 650, 653-58.) On July 24, 2014, LPCC Webb prepared a “To Whom It May Concern” letter and stated that Mr. Parraz had been in individual counseling with her “for over a year.” (Tr. 546.) She stated therein that Mr. Parraz had been diagnosed with PTSD, depression and anxiety, and that he struggled with anxiety and other symptoms on a daily basis. (Id.) On June 22, 2015, LPCC Webb prepared a Third-Party Adult Function Report on Mr. Parraz's behalf and reported, inter alia, that anxiety made it difficult for Mr. Parraz to stay in one place and made him very irritable; depression made Mr. Parraz want to isolate and not to want to be around people or leave his house; flashbacks to past traumas were easily triggered; he does not sleep well; he required his family's help for personal care and taking medications; his activities were limited to simple meal preparation and minimal chores; he was unable to complete tasks without an outside person reminding him; and his concentration was a problem because he forgets and is easily distracted. (Tr. 347-54.)

         On January 25, 2016, after treating Mr. Parraz for three years, LPCC Webb prepared a Medical Assessment of Ability To Do Work-Related Activities (Mental) on Mr. Parraz's behalf. (Tr. 660-61.) She assessed that Mr. Parraz had slight limitations in his ability to (1) remember locations and work-like procedures; (2) understand and remember very short and simple instructions; (3) carry out very short and simple instructions; (4) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; (5) sustain an ordinary routine without special supervision; (6) make simple-work-related decisions; (7) ask simple questions or request assistance; (8) maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and (9) be aware of normal hazards and take adequate precautions. (Id.) She assessed he had moderate limitations in his ability to (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods of time; (4) interact appropriately with the general public; (5) respond appropriately to changes in the work place; and (6) set realistic goals or make plans independently of others. (Id.) She assessed that Mr. Parraz had marked limitations in his ability to (1) work in coordination with/or proximity to others without being distracted by them; (2) complete a normal workday and workweek without interruptions from psychological based symptoms and to perform at a consistent pace without unreasonable number and length of rest periods; (3) accept instructions and respond appropriately to criticism from supervisors; (4) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and (5) travel in unfamiliar places or use public transportation. (Id.)

         LPCC Webb also determined that the severity of Mr. Parraz's anxiety and depression met the criteria of Listings 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders. (Tr. 662-63.)

         The ALJ accorded little weight to LPCC Webb's functional assessment of Mr. Parraz's ability to do work related mental activities. (Tr. 27.) In so doing, the ALJ explained that LPCC Webb was not an “examining or treating source.” (Id.) She also explained that LPCC Webb's assessment was not supported by her observations and notes. (Id.) Specifically, the ALJ explained that LPCC Webb noted that Mr. Parraz's mental impairments were stable, the he believed cannabis helped his condition, that he had some close friends and was close with his immediate family, that counseling was helpful, and that his mood was improved with medication. (Id.) Finally, the ALJ explained that LPCC Webb's assessment that Mr. Parraz had marked limitations in traveling to unfamiliar places was inconsistent with the record because the record supported that Mr. Parraz was capable of driving himself to his counseling appointments. (Id.)

         Mr. Parraz argues that LPCC Webb's extensive treatment provided her with a longitudinal picture of his impairments, and that her assessment largely concurred with other evidence in the record. (Doc. 18 at 18-19.) He also argues that the ALJ's explanation for discounting LPCC Webb's assessment amounts to speculation, and that the ALJ failed to point to specific contradictory medical evidence to support her findings. (Id. at 19-20.) The Commissioner contends that the ALJ considered LPCC ...


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