United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Luciano Alexander
Anaya's Motion to Reverse and Remand to Agency for
Rehearing, with Supporting Memorandum (Doc. 22), which was
fully briefed on January 15, 2018. See Docs. 24, 25,
26. The parties consented to my entering final judgment in
this case. Docs. 3, 7, 8. Having meticulously reviewed the
entire record and being fully advised in the premises, I find
that the Administrative Law Judge (“ALJ”) failed
to properly weigh the opinion of consultative psychological
examiner Dr. Mark Simpson. I therefore GRANT Mr. Anaya's
motion and remand this case to the Commissioner for further
proceedings consistent with this opinion.
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands, and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
evidence is such relevant evidence as 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 or if there is a mere scintilla of
evidence supporting it.” Id. While the Court
may not reweigh the evidence or try the issues de novo, its
examination of the record as a whole must include
“anything that may undercut or detract from the
ALJ's findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“‘The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or 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); 20 C.F.R. § 404.1505(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) the claimant is not
engaged in “substantial gainful activity;” (2)
the claimant has a “severe medically determinable . . .
impairment . . . or a combination of impairments” that
has lasted or is expected to last for at least one year;
and (3) the impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
Background and Procedural History
Anaya was born in 1995. AR 156. Mr. Anaya filed an application
for child's benefits on January 7, 2008, alleging
disability beginning on September 29, 2000 due to autism,
attention deficit hyperactivity disorder, speech delay,
language delay, hypertension, diabetes, depression, anxiety,
and chronic pain. AR 67. The Social Security Administration
(“SSA”) awarded Mr. Anaya child's benefits as
a dependent of his deceased father. AR 39, 67. Entitlement to
child's benefits ends the month before the month in which
the claimant turns 18, unless the claimant is disabled or a
full-time student. 20 C.F.R. § 404.352(b)(1). A claimant
who is over the age of 18 who has a disability that began
before the claimant became 22 is entitled to continue
receiving child disability benefits. 20 C.F.R. §
404.350(a)(5). On July 15, 2013, SSA denied Mr. Anaya
Childhood Disability Benefits for the period after he turned
18. AR 99-101. The SSA denied his claims on reconsideration
on December 12, 2013. AR 106-08; Doc. 15-1 at 2 (table of
contents, showing date of denial). Mr. Anaya requested a
hearing before an ALJ. AR 109. On June 5, 2015, ALJ Barry
O'Melinn held a hearing. AR 35-65. ALJ O'Melinn
issued his unfavorable decision on July 22, 2015. AR 12-34.
found that Mr. Anaya had not reached the age of 22 by
September 9, 2000, the alleged onset date. AR 17. At step
one, the ALJ found that Mr. Anaya had not engaged in
substantial, gainful activity since his alleged onset date.
Id. At step two, the ALJ found that Mr. Anaya
suffered from the following severe impairments: obesity,
obstructive sleep apnea, disorder of the
muscle/ligament/fascia, attention deficit disorder
(“ADD”), attention deficit hyperactivity disorder
(“ADHD”), and affective disorder. Id. At
step three, the ALJ found that none of Mr. Anaya's
impairments, alone or in combination, met or medically
equaled a Listing. AR 18-20. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Mr.
Anaya's RFC. AR 20-27. The ALJ found Mr. Anaya had the
perform a range of light work as defined in 20 CFR
404.1567(b). However, he can never climb ladders, ropes, or
scaffolds and must avoid concentrated exposure to extreme
heat and cold. He can understand, remember, and carry out
simple instructions and make commensurate work-related
decisions, respond appropriately to supervision, coworkers,
and work situations, deal with routine changes in work
setting, maintain concentration, persistence, and pace for up
to and including two hours at a time with normal breaks
throughout a normal workday.
four, the ALJ concluded that Mr. Anaya did not have any past
relevant work. AR 28. The ALJ found Mr. Anaya not disabled at
step five because there are jobs that exist in the
significant numbers in the national economy that he can
perform, such as a cleaner and polisher of metal parts; a
cleaner of hotels, motels, or casinos; and a bakery worker.
AR 28-29. On September 22, 2015, Mr. Anaya requested review
of the ALJ's unfavorable decision by the Appeals Council.
AR 10-11. On March 28, 2017, the Appeals Council denied the
request for review. AR 3-9. Mr. Anaya timely filed his appeal
to this Court on May 17, 2017. Doc. 1.
Mr. Anaya's Claims
Anaya raises five arguments for reversing and remanding this
case: (1) the ALJ failed to properly evaluate the opinion of
consultative psychological examiner Dr. Mark Simpson; (2) the
ALJ failed to properly evaluate the opinion of
neuropsychological evaluator Dina Hill, Ph.D.; (3) the ALJ
failed to properly evaluate the opinion of Ms. Sandra
Cleveland, his high school special education math teacher;
(4) the ALJ failed to properly evaluate his obesity; and (5)
the ALJ failed to conduct a proper credibility analysis. Doc.
22 at 4-20.
I remand based on the ALJ's failure to properly evaluate
the opinion of consultative psychological examiner Dr. Mark
Simpson, I do not address the other alleged errors, which
“may be affected by the ALJ's treatment of this
case on remand.” Watkins v. Barnhart, 350 F.3d
1297, 1299 (10th Cir. 2003).
Anaya argues that the ALJ erred by failing to state what
weight he gave the opinion of consultative psychological
examiner Dr. Mark Simpson. Doc. 22 at 6. He argues that this
failure was harmful because Dr. Simpson's opinion was
more restrictive than the RFC adopted by the ALJ.
Id. The Commissioner argues that “to the
extent that the ALJ did not explicitly state the weight he
gave to Dr. Simpson's opinion, any oversight on the
ALJ's part was harmless.” Doc. 24 at 12. For the
reasons discussed below, I agree with Mr. Anaya.
“must explain in the decision the weight given to the
opinions of a State agency . . . psychological
consultant.” 20 C.F.R. § 404.1527(e)(2)(ii)
(effective Aug. 24, 2012 through March 26, 2017); see
also Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th
Cir. 2012) (internal citation omitted) (“It is the
ALJ's duty to give consideration to all the medical
opinions in the record. He must also discuss the weight he
assigns to such opinions.”). “A medical
source's statement about what an individual can still do
is medical opinion evidence that an adjudicator must consider
. . . when assessing an individual's RFC.” SSR
96-5p, 1996 WL 374183, at *5 (July 2, 1996). An ALJ must
consider the following factors in deciding what weight to
give a medical opinion:
1. Examining relationship: more weight is
given to the opinion of a source who has examined the
claimant than to one who has not;
2. Treatment relationship: more weight is
given to the opinion of a source who has treated the claimant
than to one who has not; more weight is given to the opinion
of a source who has treated the claimant for a long time over
several visits and who has ...