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. 15) filed December 20, 2017, in
support of Plaintiff Michael David Gorbitz'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 March 20, 2018, Plaintiff filed
his Motion to Reverse and Remand For A Rehearing With
Supporting Memorandum (“Motion”). (Doc. 22.) The
Commissioner filed a Response in opposition on May 17, 2018
(Doc. 25), and Plaintiff filed a Reply on July 5, 2018. (Doc.
28.) 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
Michael David Gorbitz (“Mr. Gorbitz”) has a long
history of mental impairments that prevent and/or interfere
with, inter alia, his ability to drive, to live and function
independently, to have friends, to attend post-secondary
education, and to obtain and maintain employment. (Tr. 39,
43, 44, 48, 50-53, 59-61, 63, 194-96, 215-16, 249-50, 256-57,
272-74, 287-88.) He was diagnosed with ADHD at age 4, and
speech language delays in the second grade. (Tr. 256.) He
attended special education throughout his primary and
secondary education. (Tr. 185, 258, 272.) He has undergone
three separate neuropsychological evaluations, all of which
have resulted in psychiatric diagnoses, including ADHD,
anxiety, depressive disorder, mood disorder, and cognitive
disorder; and a medical diagnosis of brain trauma. (Tr.
263-66, 284-86, 297, 401.) Mr. Gorbitz completed high school
in 2009, and worked briefly as a grocery store bagger and UPS
loader. (Tr. 186, 201-05.) Mr. Gorbitz reported he stopped
working on September 7, 2011, due to his medical conditions
and “other reasons.” (Tr. 185.)
26, 2013, Mr. Gorbitz filed an application for Supplemental
Security Income (“SSI”) under Title XVI of the
Act, 42 U.S.C. § 1381 et seq. (Tr. 166-71.) Mr. Gorbitz
alleges a disability onset date of January 1, 2013,
age twenty-two because of brain injury, bipolar disorder,
post-traumatic stress syndrome, mood disorder, and
attention-deficit/hyperactivity disorder. (Tr. 11, 83, 184,
230.) Mr. Gorbitz's application was initially denied on
November 26, 2013. (Tr. 69, 70-81, 96-99.) It was denied
again at reconsideration on May 23, 2014. (Tr. 82, 83-95,
105-09.) On June 13, 2014, Mr. Gorbitz requested a hearing
before an Administrative Law Judge (“ALJ”). (Tr.
111-13.) The ALJ conducted a hearing on March 30, 2016. (Tr.
26-68.) Mr. Gorbitz appeared in person at the hearing with
attorney representative Michael Armstrong. (Id.) The
ALJ took testimony from Mr. Gorbitz (Tr. 31-47), his mother
Kristen Gorbitz (Tr. 47-57), his father Michael Gorbitz, Sr.
(Tr. 58-64), and an impartial vocational expert
(“VE”), Karen Provine (Tr. 65-67). On April 20,
2017, ALJ Ann Farris issued an unfavorable decision. (Tr.
8-21.) On May 16, 2017, the Appeals Council issued its
decision denying Mr. Gorbitz's request for review and
upholding the ALJ's final decision. (Tr. 1-6.) On July
14, 2017, Mr. Gorbitz timely filed a Complaint seeking
judicial review of the Commissioner's final decision.
Disability Determination Process
individual is considered disabled if 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) (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, he is not disabled regardless of his
(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, he 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 his “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 [his 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 his 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 Mr. Gorbitz was not disabled at step
five of the sequential evaluation. (Tr. 20-21.) Specifically,
the ALJ determined that Mr. Gorbitz had not engaged in
substantial gainful activity since his application date, July
26, 2013. (Tr. 13.) She found that Mr. Gorbitz had severe
impairments of cognitive disorder,
attention-deficit/hyperactivity disorder (ADHD), mood
disorder, and personality disorder with passive-aggressive
and self-defeating features. (Id.) The ALJ, however,
determined that Mr. Gorbitz's impairments did not meet or
equal in severity one the listings described in Appendix 1 of
the regulations. (Tr. 14-15.) As a result, the ALJ proceeded
to step four and found that Mr. Gorbitz had the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
he is limited to simple routine tasks with reasoning at level
one, involving only occasional and superficial interactions
with the general public. The claimant should not be required
to work at a production-rate pace or perform tandem tasks
such as an assembly job.
(Tr. 15.) The ALJ further concluded at step four that Mr.
Gorbitz was not able to perform his past relevant work. (Tr.
20.) The ALJ determined at step five that considering Mr.
Gorbitz's age, education, work experience, and RFC, that
there were jobs that existed in significant numbers in the
national economy that Mr. Gorbitz could perform and he was,
therefore, not disabled. (Tr. 20-21.)
Gorbitz argues that the ALJ (1) improperly rejected the
opinions of treating psychiatrist E. B. Hall, M.D.; and (2)
failed to account for all the moderate limitations assessed
by nonexamining State agency psychologists Cathy Simutis,
Ph.D., and Charles F. Bridges, Ph.D. (Doc. 22 at 16-23.)
Based on the medical and record evidence in this case, as
more fully discussed below, the Court finds the ALJ's
reasons provided for according limited weight to Dr.
Hall's assessments are not supported by substantial
evidence and that this case requires remand.
Edwin B. Hall, M.D.
Administrative Record contains seventeen treatment notes from
Edwin B. Hall, M.D., from February 12, 2010, through January
23, 2016. (Tr. 360, 361, 364, 366-67, 368-69,
378-81, 382-85, 386-89, 412-17, 418-23, 424-29, 430-35,
436-41, 442-46, 447-51, 452-56, 457-60.)
2010 - 2012
2010 through 2012, Mr. Gorbitz saw Dr. Hall, or PA-C Belina
Avner of Dr. Hall's office, a total of five times. (Tr.
360, 361, 364, 366-67, 368-69.) The treatment notes reflect
Mr. Gorbitz's reports of irritability, increased
emotional agitation, feelings of suicide, and depression.
(Id.) In response, Dr. Hall, or PA-C Avner, adjusted
Mr. Gorbitz's medications and refilled his prescribed
2013, Mr. Gorbitz saw Dr. Hall four times following an
incident on April 17, 2013, in which Mr. Gorbitz threatened
his father with a knife, was arrested and charged with
domestic violence, and subsequently evaluated at Kaseman
Presbyterian ER for suicidal ideation (Tr. 299-304, 378-81,
382-85, 386-89, 457-60.) The narrative portions of Dr.
Hall's treatment notes related to the incident are
largely garbled and confusing. What is discernable, however,
is that Dr. Hall intervened with law enforcement on Mr.
Gorbitz's behalf to have him psychiatrically evaluated.
(Id.) Dr. Hall explained that Mr. Gorbitz “was
off his medicine and noncompliant accidentally and went into
a manic depressive episode.” (Tr. 386.) Dr. Hall noted
that Mr. Gorbitz was “developmental, ” had
“mood swings, ” and was suicidal and homicidal.
(Tr. 376. 378-79.) Dr. Hall also noted that “Michael
does not need to be treated in a jail or penal system he
needs to be adjudicated as psychiatrically incompetent to
stand trial and that he basically needs to be treated as
mental health facility and making and with outpatient.”
[Sic.] (Tr. 382, 386, 457.)
April 20, 2013, on mental status exam, Dr. Hall noted that
Mr. Gorbitz's mood and affect were sad, depressed and
irritable; he had poor insight and impaired judgment; and his
thought content was suicidal. (Tr. 380.) Dr. Hall indicated
that all other aspects of Mr. Gorbitz's mental status
exam were normal. (Id.) Dr. Hall diagnosed
unspecified episodic mood disorder and anxiety state,
unspecified. (Tr. 381.) Dr. Hall added Zonegran to Mr.
Gorbitz's medication therapy,  and indicated his goal was
to restabilize Mr. Gorbitz on his medications. (Id.)
April 27, 2013, Dr. Hall noted that Mr. Gorbitz was much
improved on Zonegran. (Tr. 382.) Mr. Gorbitz reported
moderate stress due to family, occupational, and health
concerns. (Id.) On mental status exam, Dr. Hall
noted that Mr. Gorbitz's mood and affect were sad,
depressed, and irritable; his insight was poor and judgment
impaired; and his thought content was suicidal. (Tr. 383.)
All other aspects of Mr. Gorbitz's mental status exam
were normal. (Id.) Dr. Hall diagnosed unspecified
episodic mood disorder and anxiety state, unspecified. (Tr.
384.) Dr. Hall noted that Zonegran had really helped Mr.
Gorbitz's mood and that he felt confident he could get
Mr. Gorbitz back on track. (Id.) Dr. Hall planned to
continue Mr. Gorbitz on his current medication regimen and to
continue current psychotherapy focus. (Tr. 385.)
31, 2013, Dr. Hall again noted that Mr. Gorbitz was much
improved on Zonegran. (Tr. 386.) Mr. Gorbitz reported
moderate stress due to family, occupational and health
concerns. (Tr. 387.) On mental status exam, Dr. Hall noted
that Mr. Gorbitz's mood and affect were sad, depressed,
and irritable; however, his thought process was goal
directed, and his thought content was normal. (Id.)
All other aspects of his mental status exam were normal.
(Id.) Dr. Hall diagnosed unspecified episodic mood
disorder and anxiety state, unspecified. (Tr. 388.) Dr. Hall
planned to continue Mr. Gorbitz on his current medication
regimen and to continue current psychotherapy focus. (Tr.
October 29, 2013, Dr. Hall noted that Mr. Gorbitz was much
improved on Zonegran, and had been stable since his
medication change. (Tr. 457.) Mr. Gorbitz reported moderate
stress due to family, occupational and health concerns. (Tr.
458.) On mental status exam, Dr. Hall noted that Mr.
Gorbitz's mood and affect were sad, depressed, and
irritable. (Tr. 458.) All other aspects of his mental status
exam were normal. (Id.) Dr. Hall noted that Mr.
Gorbitz's mood was stable, that he had had no outbursts
of anger, and had no suicidal or homicidal thoughts. (Tr.
459.) Dr. Hall diagnosed unspecified episodic mood disorder
and anxiety state, unspecified. (Id.) Dr. Hall
planned to continue Mr. Gorbitz on his current medication
regimen and psychotherapy focus. (Tr. 460.)
February 6, 2014, Dr. Hall completed a Medical Assessment
of Ability to Do Work-Related Activities (Mental) on Mr.
Gorbitz's behalf. (Tr. 406-07.) Dr. Hall assessed that
Mr. Gorbitz had moderate limitations in his ability
to (1) remember locations and work-like procedures; (2)
understand and remember very short and simple instructions;
(3) carry out very short and simple instructions; (4) make
simple work-related decisions; (5) complete a normal workday
and workweek without interruptions from psychological based
symptoms and to perform at a consistent pace without
unreasonable number and length of rest periods; (6) ask
simple questions or request assistance; (7) accept
instructions and respond appropriately to criticism from
supervisors; (8) maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; and
(9) be aware of normal hazards and take adequate precautions.
Hall assessed that Mr. Gorbitz had marked
limitations in his ability to (1) understand and
remember detailed instructions; (2) carry out detailed
instructions; (3) maintain attention and concentration for
extended periods of time (i.e., 2-hour segments);
(4) perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerance; (5)
sustain an ordinary routine without special supervision; (6)
work in coordination with/or proximity to others without
being distracted by them; (7) interact appropriately with the
general public; (8) get along with coworkers or peers without
distracting them or exhibit behavioral extremes; (9) respond
appropriately to changes in the work place; (10) travel in
unfamiliar places or use public transportation; and (11) set
realistic goals or make plans independently of others.
(Id.) Dr. Hall based his assessment on Mr.
Gorbitz's “severe mood disorder” and
“ADHD - Untreated.” (Tr. 407.)
February 7, 2014, Dr. Hall also completed forms for Listing
12.04 Affective Disorders and 12.06
Anxiety-Related Disorders, and assessed that Mr.
Gorbitz met the A, B and C criteria for both. (Tr. 409-410.)
Dr. Hall assessed, inter alia, that Mr. Gorbitz had
marked restrictions in his activities of daily
living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining