United States District Court, D. New Mexico
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
REMAND AND REMANDING TO AGENCY FOR FURTHER
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
Anthony Dailey seeks review of the Social Security
Administration's final action finding him not disabled
under Titles II and XVI of the Social Security Act. After the
agency denied his applications for disability insurance
benefits and supplemental security income initially and on
reconsideration, Dailey received a hearing before an
Administrative Law Judge (“ALJ”). (AR 36-76;
79-121). In the written decision that followed, the ALJ
determined at step three of the five-part sequential process
for evaluating disability, see 20 C.F.R.
§§ 404.1520(b), 416.920(b), that none of
Dailey's physical and mental conditions qualified as
per se disabling under the agency's Listing of
Impairments. (AR 18-21); 20 C.F.R. pt. 404, subpt. P, app. 1.
At steps four and five, the ALJ concluded that, while Dailey
could no longer work as an auto-mechanic helper, there exist
sufficient small-product-assembler, hand-packager-inspector,
and laundry-sorter jobs in the national economy for which he
retained the residual functional capacity (“RFC”)
to perform. (AR 21-28).
argues the ALJ erred in her step-three determination,
fashioning an RFC that did not include all of his physical
and mental limitations, and determining that he could perform
available work despite his functional limitations. The Court
reviews the ALJ's determination for substantial evidence
and to determine whether the ALJ followed the law. See
Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014).
Having so reviewed and with consent of the parties to render
a final decision in this matter, see 28 U.S.C.
§ 636(c); (Doc. 9), the Court grants in part
Dailey's motion to remand (Doc. 20) and remands the
matter to the agency for further proceedings.
properly discussed the evidence and explained why Dailey did
not satisfy Listing 1.02 and 1.03's common
“ineffective ambulation” criterion. Clifton
v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996);
Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(“An impairment that manifests only some of [the
Listing] criteria, no matter how severely, does not qualify);
20 C.F.R. pt. 404, subpt. P, app. 1. Although Dailey injured
his knee, ankle, and foot while fleeing from police,
reinjured the ankle in prison, underwent surgery on the
ankle, and used a cane to walk, the ALJ explained that Dailey
“carried out his daily activities with the use of an
assistive device” and “could drive to therapy
sessions, for his medication, and to his courses.” (AR
is correct that “driving” is not part of either
Listing 1.02 or 1.03, but the ability to travel to and from
school without a companion defines “effective
ambulation” as used in the regulations. 20 C.F.R. pt.
404, subpt. P, app. 1, § 100(B); see also Duvall v.
Berryhill, 2017 U.S. Dist. LEXIS 57955, at *8 n.4 (W.D.
Ky. Apr. 17, 2017) (driving to work considered in the
ambulation inquiry); Reyes v. Astrue, 2011 U.S.
Dist. LEXIS 126695, at *26 (E.D. Cal. Nov. 1, 2011)
(explaining that driving children to school exhibits
“an ability to ambulate effectively”).
Dailey's use of a cane, while indicative of difficulty in
walking, also does not preclude a finding of “effective
ambulation.” Under the regulations, ambulation is
“ineffective” where the assistive device limits
the use of both upper extremities, but
“effective” where the individual is “able
to carry out the activities of daily living.” 20 C.F.R.
pt. 404, subpt. P, app. 1, § 1.00(B)(2). Dailey does not
point the Court to medical evidence of “an extreme
limitation of the ability to walk; i.e., an impairment(s)
that interferes very seriously with [his] ability to
independently initiate, sustain, or complete
activities.” Id. The ALJ's determination
as to ambulation, therefore, was neither contrary to law nor
unsupported in the record.
contrast, the ALJ did not give specific, legitimate reasons
for disregarding extreme limitations assessed by treating
psychiatrist, Teresa O'Brien, MD, and treating therapist,
Nic Sedillo, LMHC, on Dailey's social functioning, marked
limitations on Dailey's concentration, persistence, and
pace, and the existence of numerous episodes of
decompensation. See Clifton, 79 F.3 at 1009. There
appears to be no dispute that, if credited, these limitations
would satisfy the medical criteria for one or more of
Listings 12.02 for cognitive disorders, 12.03 for
schizophrenia, 12.04 for depression 12.06 for anxiety, and
12.08 for personality disorders. The ALJ designated the
limitations as “incompatible” with the function
report and “records from therapy sessions [and/or]
other medical records where the claimant had appropriate
mood, affect, and was oriented, ” but did not explain
why these “appropriate” attributes preclude a
disabling impairment at step three. See Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011) (“A
person who suffers from a mental illness will have better
days and worse days, so a snapshot of any single moment says
little about her overall condition”).
by the ALJ are other portions of the same records documenting
daily auditory and/or visual hallucinations despite
Dailey's “appropriate” affect and stable
mood. (AR 728; 729; 758). In progress notes, Dailey was also
assessed as anxious, restless, irritable, agitated,
depressed, delusional, and labile, or combinations thereof.
(AR 737; 740; 745; 747; 750; 752; 754; 756; 757; 762). During
one session, Dr. O'Brien described Dailey as “very
paranoid and psychotic” and noted Dailey was excited
and cried. (AR 749). During another appointment, Mr. Sedillo
characterized Dailey's cognitive thought process as
“hallucinating.” (AR 753). The ALJ was not
permitted to pick among and choose from the parts of the
therapy records that supported a finding of non-disabled,
without discussing the evidence that fairly detracted from
that conclusion. See Haga v. Astrue, 482 F.3d 1205,
1208 (10th Cir. 2007). While there may have been many reasons
to reject Dr. O'Brien and Mr. Sedillo's extreme and
marked limitations, the ALJ's cited grounds lack are
the agency will need to reevaluate Dr. O'Brien and Mr.
Sedillo's limitations on remand and proper consideration
of the providers' assessments could affect other aspects
of the sequential process, the Court does not reach
Dailey's remaining arguments about the deficient RFC and
the ALJ's conclusion that Dailey could perform work that
in the national economy in light of his physical and mental
limitations. See Watkins v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).
IS, THEREFORE, ORDERED that Dailey's motion to
remand (Doc. 20) is GRANTED IN PART and the
matter is remanded to the Commissioner for ...