United States District Court, D. New Mexico
MATTHEW A. NELSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
matter has been referred to the undersigned to issue proposed
findings and recommend an ultimate disposition of this Social
Security appeal. Doc. 24. Having carefully reviewed the
parties' arguments and the relevant portions of the
Administrative Record (“AR”), the Court
recommends that Plaintiff's Motion to Remand or Reverse
Agency Decision be granted, for the reasons set forth below.
Nelson claims that he was rendered unable to work after
falling off of a ladder on March 20, 2013. AR at 51-52.
However, according to consultative examiner Robert Krueger,
Ph.D., (who was hired by the Administration), Mr. Nelson is
afflicted by more than just physical ailments; he suffers
from borderline intellectual functioning, an unspecified
learning disorder, depressive disorder NOS, adjustment
disorder with anxiety, and pain disorder associated with a
general medical condition and psychological factors. AR at
716. In reaching these diagnoses, Dr. Krueger administered a
WAIS-IV test, which “indicate[s] that he has
significant cognitive impairment and is functioning at a
borderline level with most skills.” Id.
However, the Administrative Law Judge (“ALJ”)
assigned to Mr. Nelson's case rejected many of the
functional limitations imposed by Dr. Krueger, primarily
because she disagreed with the Global Assessment of
Functioning (“GAF”) score he assessed, and
ignored evidence that Mr. Nelson's processing speed is
hampered by his disabilities. The Court finds that the
ALJ's reasoning and rationale for rejecting Dr.
Krueger's opinions are unsupported, and so recommends
that this case be remanded for proper evaluation of Mr.
Nelson's mental impairments.
Nelson fell while working on a ladder on March 20, 2013. AR
at 51-52. Due to the injuries he sustained, Mr. Nelson filed
an application with the Social Security Administration for
disability insurance benefits under Title II of the Social
Security Act on May 1, 2014. AR at 218-19. In addition to his
back injuries, Mr. Nelson alleged disabling conditions
including a seizure disorder and learning disability. AR at
Nelson's application was denied initially and upon
reconsideration. AR at 83-112. He requested review, and,
after holding a de novo hearing, ALJ Michelle K. Lindsay
issued an unfavorable decision on November 21, 2016. AR at
10-34. Mr. Nelson requested that the Appeals Council review
the ALJ's decision; however, the Appeals Council denied
his request on March 1, 2017. AR at 1-8. As such, the
ALJ's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
2003). Mr. Nelson filed a timely Complaint on May 2, 2017.
Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
§ 422.210(a). A claimant seeking disability benefits
must establish that 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); 20 C.F.R.
§ 404.1505(a). The Commissioner must use a five-step
sequential evaluation process to determine eligibility for
benefits. 20 C.F.R. § 404.1520(a)(4).
one of the sequential evaluation process, the ALJ found that
Mr. Nelson had not engaged in substantial gainful activity
during the relevant time period. AR at 15. At step two, she
determined that Mr. Nelson “had the following severe
impairments: seizure disorder, degenerative disc disease of
the lumbar spine post lumbar surgery, mild degenerative joint
disease of the hips, borderline intellectual functioning,
learning disorder not otherwise specified (NOS), depressive
disorder NOS, and adjustment disorder with anxiety.” AR
at 15. At step three, however, the ALJ found that Mr. Nelson
“did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments[.]” AR at 16.
claimant does not meet a listed impairment, the ALJ must
determine his residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). “RFC
is not the least an individual can do despite his or her
limitations or restrictions, but the most.” SSR 96-8p,
1996 WL 374184, at *1; see 20 C.F.R. § 404.1545(a)(1).
In this case, the ALJ determined that Mr. Nelson retained the
to perform sedentary work as defined in 20 CFR 404.1567(a)
with the ability to lift, carry, push, and pull 10 pounds
occasionally. He should have the option to alternate between
sitting and standing every 15 minutes. The claimant is able
to occasionally climb stairs and ramps, balance, stoop,
crouch, kneel, and crawl, but can never climb ladders, ropes
or scaffolds. He should avoid more than occasional exposure
to extreme cold. The claimant should completely avoid
unprotected heights, open flame, open bodies of water, and
hazardous machinery. Mentally, the claimant is able to
understand, remember and carry out simple instructions and is
able to maintain attention and concentration to perform
simple tasks for two hours at a time without requiring
redirection of task. He can have only occasional contact with
the general public, and only superficial interactions with
coworkers and supervisors. He requires work involving no more
than occasional change in the routine work setting, and no
more than occasional independent goal setting or planning.
The claimant requires work that does not involve travel to
unfamiliar places or the use of public transportation as part
of the job.
AR at 18. Employing this RFC at step four, the ALJ determined
that Mr. Nelson could not return to his past relevant work as
a tree trimmer and a painter. AR at 27. However, she found
that “there were jobs that existed in significant No.
in the national economy that [Mr. Nelson] could have
performed[.]” AR at 28. Specifically, the ALJ found
that Mr. Nelson could have performed the requirements of a
table worker, small item inspector, or small product
assembler. Id. Accordingly, the ALJ determined that
Mr. Nelson “was not under a disability, as defined in
the Social Security Act, at any time from March 20, 2013, the
alleged onset date, through September 30, 2016, the date last
insured[, ]” and she denied benefits. AR at 29.
Court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence and whether the correct legal standards
were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201
(10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571
(10th Cir. 2014)). A deficiency in either area is grounds for
remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th
Nelson argues that the ALJ's RFC finding was made in
error because she improperly rejected the GAF of 45 in the
Dr. Krueger evaluation; improperly rejected the entire
Krueger report; improperly evaluated the treating
doctor's opinion; “erred in the assessment of Mr.
Nelson's mental condition for allegedly failing to obtain
mental treatment[;]” understated Mr. Nelson's
mental limits; and erred in her credibility assessment of Mr.
Nelson and his “companion.” He further argues
that the ALJ misstated the burden of proof at step five and
“failed to assure that the [Vocational Expert]
testimony was compliant with the D.O.T.” See Doc. 15 at
1-2. Because the Court agrees that the ALJ erred in weighing
Dr. Krueger's opinion and GAF score, the undersigned will
not address Plaintiff's other claims of error,
“because they may be affected by the ALJ's
treatment of this case on remand.” Watkins v. Barnhart,
350 F.3d 1297, 1299 (10th Cir. 2003).
Krueger, Ph.D., FICPP, examined Mr. Nelson at the request of
the Administration on March 16, 2015. AR at 713-718. Dr.
Krueger conducted a clinical interview with biopsychosocial
history and mental status examination, Wechsler Adult
Intelligence Scale - IV (WAIS-IV), and reviewed Mr.
Nelson's function report. AR at 713. When he administered
the WAIS-IV, Mr. Nelson was “compliant with following
all test instructions” and “appeared to make a
good effort.” AR at 715. As such, Dr. Krueger
considered his results to be valid. Id. Dr. Krueger
offered the following “diagnostic impression” in
conformance with the DSM-IV:
Axis I: Depressive Disorder NOS; Adjustment Disorder with
anxiety; Learning Disorder NOS; Pain Disorder, associated
with a general medical condition and psychological factors
Axis II: Borderline Intellectual Functioning
Axis III: Diagnosis deferred, see medical records
Axis IV: Psychosocial stressors appear to be quite severe,
and include having severe and chronic pain, ongoing medical
issues, loss of former activities, and lack of income
Axis V: GAF, Recent: 45
AR at 716. In his “summary and recommendations, ”
Dr. Krueger stated that “there is evidence of [Mr.
Nelson] having a severe and chronic pain disorder, which is
likely to be further exacerbated by emotional factors, such
as depression.” AR at 716. Dr. Krueger further
opined that Mr. Nelson's results on the WAIS-IV
“indicate that he has significant cognitive impairment
and is functioning at a borderline level with most
skills.” AR at 716-717. Dr. Krueger concluded
Because of chronic pain, ongoing medical issues, depression,
and learning disorders Mr. Nelson can be expected to have
moderate impairment with understanding, remembering, and
following simple work instructions and marked impairment with
complex or detailed instructions. He has serious problems
with visual motor working speed, as is evidenced by his
Processing Speed Index score of 74. He also appeared to be
quite physically limited because of severe and chronic pain.
He can be expected to have marked impairment with maintaining
pace and persistence. In his current condition he can be
expected to have marked impairment with adjusting to changes
in work environment. Because of ongoing emotional
difficulties along with cognitive impairment, Mr. Nelson can
be expected to have moderate impairment in many relationships
with coworkers, supervisors, and the general public. At the
present time he can be expected to have marked impairment
with traveling to distant places alone. Because ...