United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 16) filed July 7, 2017, in
support of Plaintiff Christine Perea'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 30, 2017, Plaintiff filed
her Motion to Reverse or Remand and Memorandum Brief in
Support (“Motion”). (Docs. 19, 20.) The
Commissioner filed a Response in opposition on November 6,
2017 (Doc. 22), and Plaintiff filed a Reply on November 14,
2017. (Doc. 23.) 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.
Background and Procedural Record
Christine Perea (“Ms. Perea”) alleges that she
became disabled on November 4, 2013,  at the age of forty-four
because of posttraumatic stress syndrome
(“PTSD”), bipolar disorder, arthritis, and back
problems. (Tr. 210, 214.) Ms. Perea completed the tenth grade in
2004, and has worked as a variety store cashier, club dancer,
restaurant hostess, house cleaner, and gift shop sales
associate. (Tr. 215, 221-31, 235-40.) Ms. Perea reported she
stopped working on November 22, 2008, due to her medical
conditions. (Tr. 214.)
November 7, 2013, Ms. Perea filed an application for
Supplemental Security Income (“SSI”) under Title
XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 191-96.)
Ms. Perea's application was initially denied on March 12,
2014. (Tr. 66-76, 77, 92-95.) It was denied again at
reconsideration on August 8, 2014. (Tr. 78-90, 91, 102-06.)
On August 15, 2014, Ms. Perea requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 108-09.)
The ALJ conducted a hearing on November 12, 2015. (Tr.
29-65.) Ms. Perea appeared in person at the hearing with
attorney representative Barbara Jarvis. (Id.) The
ALJ took testimony from Ms. Perea (Tr. 33-58), and an
impartial vocational expert (“VE”), Pamela Bowman
(Tr. 58-64). On December 17, 2015, ALJ Myriam C. Fernandez
Rice issued an unfavorable decision. (Tr. 9-23.) On March 17,
2017, the Appeals Council issued its decision denying Ms.
Perea's request for review and upholding the ALJ's
final decision. (Tr. 1-6.) On April 3, 2017, Ms. Perea timely
filed a Complaint seeking judicial review of the
Commissioner's final decision. (Doc. 1.)
Disability Determination Process
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. § 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.” If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her
(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
(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
(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. §§ 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 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. § 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).
Standard of Review
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).
made her decision that Ms. Perea was not disabled at step
five of the sequential evaluation. (Tr. 22-23.) Specifically,
the ALJ determined that Ms. Perea had not engaged in
substantial gainful activity since November 4, 2013. (Tr.
14.) She found that Ms. Perea had the following severe
impairments: migraine headaches, degenerative disc disease,
arthritis, borderline personality disorder, posttraumatic
stress disorder, bipolar disorder, depression and alcoholism.
(Id.) The ALJ also found that Ms. Perea had
nonsevere impairments of hip and knee pain. (Id.)
The ALJ determined, however, that Ms. Perea's impairments
did not meet or equal in severity one the listings described
in Appendix 1 of the regulations. (Tr. 15-17.) As a result,
the ALJ proceeded to step four and found that Ms. Perea had
the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except:
the claimant may never climb ladders, ropes or scaffolds;
occasional climbing of ramps or stairs; occasional crouching,
kneeling or crawling; she must avoid concentrated exposure to
moving machinery or exposure to heights; she can maintain,
understand and remember simple work instructions with only
occasional changes in work setting and only occasional
interaction with the public and co-workers.
(Tr. 17-18.) The ALJ then determined at step five that
considering Ms. Perea's age, education, work experience,
and RFC, there were jobs that existed in significant numbers
in the national economy that the claimant could perform. (Tr.
support of her Motion, Ms. Perea argues that (1) the ALJ
failed to assign proper weight to the medical source
opinions; (2) the ALJ erred in her analysis under the mental
Listings of Impairments; and (3) the ALJ failed to meet her
burden at step five. (Doc. 20 at 9-20.) For the reasons
discussed below, the Court finds that the ALJ failed to
properly weigh the medical source opinion evidence and this
case requires remand.
Physical Impairment Medical Opinion
State Agency Examining Medical Consultant Scott Evans,
February 17, 2014, Ms. Perea presented to Scott Evans, M.D.,
on a referral from the Disability Determination Services for
a medical consultative exam. (Tr. 477-81.) Ms. Perea reported
her chief complaints as (1) low back pain, with numbness to
the right lower extremity posteriorly, extending past the
knees and down to the ankles; and (2) posttraumatic stress
disorder. (Tr. 477.) Ms. Perea stated she underwent local
cortisone injections for her back pain, but that they
provided only a few days of relief before the pain returned.
(Id.) She reported that (1) she could dress herself
most of the time; (2) could feed herself; (3) did not drive
due to back spasms; and (4) could cook, shop and clean at
home, although her boyfriend did chores that involved
sweeping, mopping, vacuuming, dishes, laundry, and mowing the
grass. (Tr. 477-78.) Ms. Perea reported that she
avoided activities that required any bending of her low back.
(Tr. 478.) Ms. Perea stated that she was able to (1)
stand for a total of two hours on a good day and one hour on
a typical day; (2) walk approximately 42-50 feet on level
ground; (3) sit in 20-45 minute intervals without needing to
stand or lie down; and (4) could lift eight pounds. (Tr.
477-78.) She stated she was unable to sit through an
entire movie. (Tr. 478.) On clinical exam, Dr. Evans
noted that Ms. Perea ambulated with a slow gait and took a
significant amount of time to get on and off the exam table
and in and out of the chair, although she undressed and
dressed appropriately in adequate time. (Tr. 479.) Dr. Evans
also noted that Ms. Perea appeared to give a decreased effort
throughout some portions of the clinical exam. (Id.)
Dr. Evans' findings included, inter alia, a loss
of lumbar lordosis appreciated, and that Ms. Perea appeared
to be somewhat hypersensitive to moderate touch in the lumbar
spine region, as well as the sciatic right buttock region.
(Tr. 481.) Dr. Evans noted in his functional assessment that
Ms. Perea's symptoms appeared to be somewhat exaggerated
and that she did not appear to give a full effort on some of
the exam findings. (Id.) Dr. Evans nonetheless
adopted some of Ms. Perea's reported functional
limitations and assessed that in an eight hour work day she
could (1) stand for approximately 2 hours, (2) walk for one
hour, and (3) sit for two hours. (Id.) Dr. Evans
further assessed that Ms. Perea could lift approximately
eight pounds regularly and fifteen pounds occasionally.
accorded Dr. Evans' opinion partial weight. (Tr. 20.)
State Agency Nonexamining Medical Consultant Nancy
March 12, 2014, State agency nonexamining medical consultant
Nancy Armstrong, M.D., reviewed the available medical
evidence record and assessed that Ms. Perea was capable of
a full range of medium work,  except that she should avoid
concentrated exposure to “[f]umes, odors, dusts, gases,
poor ventilation, etc., ” due to a history of reactive
airway disease. (Tr. 71-73.) Dr. Armstrong explained that she
considered Dr. Evans' assessment, but believed that he
had overstated Ms. Perea's limitations and that his
assessment was not supported by his exam findings.
accorded Dr. Armstrong's opinion partial weight. (Tr.
State Agency Nonexamining Medical Consultant Karine
August 7, 2014, State agency nonexamining medical consultant
Karine Lancaster, M.D., reviewed the available medical
evidence record at reconsideration. (Tr. 85-87.) Dr. Lancaster
explained that the evidence did not show a significant change
to Ms. Perea's physical condition and she affirmed Dr.
Armstrong's initial assessment for medium work as
accorded Dr. Lancaster's opinion partial weight. (Tr.
Steven Hartman, M.D.
October 31, 2014, Ms. Perea saw Steven Hartman, M.D., at El
Pueblo Health Services, with chief complaints of right hip
pain and left leg pain. (Tr. 624-25.) On physical exam, Dr.
Hartman noted lumbosacral tender to palpation left greater
than right; negative straight leg raise for impingement, but
painful in lumbar spine bilaterally; and paraspinous tender
to palpation in cervical and thoracic spine. (Tr. 625.) Dr.
Hartman assessed lumbago, and planned to refer Ms. Perea for
radiographic studies. (Id.)
Perea saw Dr. Hartman eight more times over the next eight
months. On December 22, 2014, she saw Dr. Hartman for an
acute care visit related to headache and dizziness. (Tr.
621-23.) On January 21, 2015, Ms. Perea presented for an
annual adult physical. (Tr. 617-19.) On March 3, 2015, Ms.
Perea saw Dr. Hartman for follow up on her Lumber Spine
(Tr. 615-16.) Dr. Hartman discussed physical therapy,
potential future spinal injections, or surgery if ever
indicated. (Tr. 616.) He referred Ms. Perea for physical
therapy. (Id.) On April 20, 2015, Ms.
Perea saw Dr. Hartman in follow up after a recent motorcycle
accident for which she had been hospitalized for three
days. (Tr. 613-14.) Dr. Hartman assessed knee
sprain and abrasion, head abrasions, and possible reinjury of
knee ligaments. (Tr. 614.) On April 28, 2015, Ms. Perea saw
Dr. Hartman in follow up for her motorcycle accident, and
noted musculoskeletal pain “localized to one or more
joints R knee, lower back with chronic pain, exacerbated by
prolonged sitting, standing or walking.” (Tr. 636-37.)
On May 12, 2015, Ms. Perea saw Dr. Hartman for headaches.
(Tr. 639-41.) Dr. Hartman noted neck and upper back
pain/tension and administered trigger point injections.
(Id.) On June 11, 2015, Ms. Perea followed up with
Dr. Hartman for upper back and neck pain. (Tr. 611-12.) Dr.
Hartman assessed muscle spasm and administered trigger point
injections. (Tr. 612.) Dr. Hartman also prescribed
Methocarbamol. (Id.) On August 10, 2015, Ms. Perea
saw Dr. Hartman with complaints of lower back pain, and left
shoulder pain related to a fall one month earlier. (Tr.
608-09.) Ms. Perea reported that certain positions made her
back pain worse and that walking caused radiating pain into
her right leg. (Tr. 608.) Dr. Hartman assessed arthropathy
and muscle spasm. (Tr. 609.) He administered trigger point
injections for Ms. Perea's back pain, and referred her
for a shoulder MRI. (Id.)
April 28, 2015, Dr. Hartman prepared a Physician's
Questionnaire on Ms. Perea's behalf. (Tr. 602-06.)
Dr. Hartman noted (1) the dates on which he had treated Ms.
Perea;(2) her diagnoses; (3) the
objective bases for her diagnoses; (4) the treatment
provided and referred; (5) prescribed
medications; and (6) his recommendation and treatment
plans. (Tr. 602.) Dr. Hartman assessed that
during an eight-hour workday, Ms. Perea would (1) require
fifteen minute breaks less than every two hours; (2) that she
was only capable of working four hours a day, three to five
days a week; and (3) that she would miss two to four days of
work per month due to her conditions. (Tr. 603.) He further
assessed that Ms. Perea (1) could sit, stand or walk for less
than one hour at one time; (2) could sit for a total of four
hours; (3) could stand for a total of two hours; (4) could
walk for a total of one hour; (5) could occasionally lift or
carry up to five pounds; (6) could continuously use her
hands; (7) could not use her feet for repetitive motions; (8)
could never bend, squat, or crawl; (9) could occasionally
climb a few steps and reach; and (10) was restricted from
activities involving unprotected heights, being around moving
machinery, exposure to marked changes of temperature and
humidity, driving automotive equipment, and exposure to dust,
fumes and gases. (Tr. 605.)
accorded Dr. Hartman's opinion little weight. (Tr. 20.)
The ALJ Failed To Properly Weigh the Medical Source
Opinion Evidence Related to Ms. Perea's Physical
Perea argues generally that the ALJ failed to properly weigh
the medical source opinion evidence. (Doc. 20 at 9-14.)
Specifically, Ms. Perea argues that the ALJ failed to
consider that the State agency nonexamining medical
consultant assessments were made based on limited evidence.
(Id. at 13-14.) She further argues that in rejecting
Dr. Hartman's opinion, the ALJ cited to no specific
inconsistent evidence and failed to provide any legitimate
basis for discrediting his findings. (Id. at 10.)
The Commissioner argues that the ALJ properly evaluated the
medical opinion evidence and reasonably determined that Ms.
Perea was capable of unskilled light work. (Doc. 22 at
ALJ must evaluate every medical opinion in the record,
although the weight given each opinion will vary according to
the relationship between the disability claimant and the
medical professional.” Hamlin, 365 F.3d at
1215. Specifically, when assessing a claimant's RFC, an
ALJ must explain what weight is assigned to each opinion and
why. SSR 96-5p, 1996 WL 374183 at *5. “An ALJ
must also consider a series of specific factors in
determining what weight to give any medical opinion.”
Hamlin, 365 F.3d at 1215 (citing Goatcher v.
United States Dep't of Health & Human Servs., 52
F.3d 288, 290 (10th Cir. 1995)). An ALJ need
not articulate every factor; however, the ALJ's decision
must be “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the
treating source's medical opinion and the reasons for
that weight.” Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007). In deciding how much weight
to give a treating source opinion, an ALJ must first
determine whether the opinion qualifies for controlling
weight. Langley, 373 F.3d at 1119 (citing
Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003)). Even if a treating
physician's opinion is not entitled to controlling
weight, “[t]reating source medical opinions are still
entitled to deference and must be weighed using all of the
[regulatory] factors.” Id. Generally the
opinion of a treating physician is given more weight than
that of an examining consultant, and the opinion of a
non-examining consultant is given the least weight of all.
Robinson v. Barnhart, 366 F.3d 1078, 1084
(10th Cir. 2004). Ultimately, ALJs are required to
weigh medical source opinions and to provide
“appropriate explanations for accepting or
rejecting such opinions.” SSR 96-5p, 1996 WL 374183 at
*5 (emphasis added); see Keyes-Zachary v Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R.
the ALJ failed to properly weigh the medical source opinion
evidence related to Ms. Perea's physical impairments as
according partial weight to Dr. Evans' opinion, the ALJ
explained, on the one hand, that she found Dr. Evans'
report “reasonable, ” and that she assessed an
RFC consistent with light work. (Tr. 20.) The ALJ
explained, on the other hand, without more, that certain of
Dr. Evans' remarks were not supported by evidence in the
record. (Id.) The ALJ's explanation, however, is
both unclear and confusing because the ALJ's RFC
assessment for light work is inconsistent with
all of Dr. Evans' functional limitations;
i.e., that Ms. Perea could (1) stand for a total of
two hours; (2) walk for one hour; (3) sit for two hours; and
(4) lift eight pounds regularly and fifteen pounds
occasionally. (Tr. 481.) In other words, the ALJ
implicitly rejected all of Dr. Evans' assessed functional
limitations even though she purported to find it
“reasonable, ” to accord it partial weight, and
to rely on it to support her RFC determination for light
work. The ALJ erred both in failing to make clear to the
Court the reasons for the weight she accorded Dr. Evans'
opinion and in assessing an RFC that is wholly inconsistent
with his opinion to which she purportedly assigned some
Dr. Armstrong ...