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Nelson v. Berryhill

United States District Court, D. New Mexico

June 1, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


         This 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.


         Mr. 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.


         Mr. 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 236.

         Mr. 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. Doc. 1.

         This 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).[1]

         At step 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.

         When a 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 RFC

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.


         This 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 Cir. 2012).

         IV. ANALYSIS

         Mr. 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).

         Robert 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.[2] 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:[3]

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 as follows:

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 ...

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