United States District Court, D. New Mexico
Michael D. Johnson Laura J. Johnson Michael D. Armstrong Law
Office Albuquerque, New Mexico Attorneys for the Plaintiff.
C. Anderson United States Attorney Manuel Lucero Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico and Dorrelyn Dietrich Steven Martyn
Social Security Administration Office of the General Counsel
Denver, Colorado Attorneys for the Defendant.
MEMORANDUM OPINION AND ORDER 
MATTER comes before the Court on the Plaintiff's
Motion to Reverse and Remand for Rehearing with Supporting
Memorandum, filed January 24, 2018 (Doc.
24)(“Motion”). The Motion is fully briefed.
See Brief in Response to Plaintiff's Motion to
Reverse and Remand the Agency's Administrative Decision,
filed March 23, 2018 (Doc. 26)(“Response”); Reply
in Support of Plaintiff's Motion to Reverse and Remand
for a Rehearing, filed April 23, 2018 (Doc. 30). Having
meticulously reviewed the entire record and the briefing, the
Court concludes that the Motion has merit and that the Court
should reverse and remand the Administrative Law Judge's
Dwayne Sida was born August 6, 1970. See
Administrative Record at 71, filed October 20, 2017 (Doc.
18-1)(“AR”). He graduated high school and
attended “a couple of years of college, ” but did
not receive a degree. AR at 45. From 1989 to 2011, Sida held
semi-continuous employment, working as a heavy equipment
operator, sandblaster, long-haul truck driver, and
maintenance man. See AR at 220.
filed applications for both Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under the Social Security Act, 42 U.S.C.
§ 404 et seq. and § 1381 et seq. (“the
Act”), on November 6, 2012. See AR at 191-98.
Sida claimed disability beginning on November 1, 2010, based
on a shattered left foot, post-traumatic stress disorder
(“PTSD”), depression, high blood pressure, and
anxiety. See AR at 71. The Social Security
Administration (“SSA”) denied Sida's
application initially and upon reconsideration. See
AR at 79-80, 89-90. At his request, Sida received a de novo
hearing before Administrative Law Judge (“ALJ”)
Barry O'Melinn, at which Sida, Sida's attorney, and a
vocational expert (“VE”) appeared. See
AR at 32-70. On March 4, 2016, ALJ O'Melinn issued his
decision, concluding that Sida is not disabled within the
Act's meaning. See AR at 14-26. Sida appealed to
the SSA Appeals Council, but it declined review. See
AR at 1-3. As a consequence, ALJ O'Melinn's decision
became the SSA Commissioner's final decision.
See 20 C.F.R. § 422.210(a) (2018).
then timely filed his appeal with this Court. See
Complaint, filed June 13, 2017 (Doc. 1). Sida advances three
grounds for relief. First, he argues that ALJ O'Melinn
breached his duty to develop the administrative record
regarding Sida's psychological impairments. See
Motion at 15-18. Next, he contends that ALJ O'Melinn
improperly rejected the opinion of Caryn Stone, his treating
licensed-mental-health counselor. See Motion at
18-22. Last, he contends that ALJ O'Melinn's step
five analysis was legally infirm and bereft of substantial
evidence. See Motion at 22-27.
The ALJ's Decision.
O'Melinn issued his decision on March 4, 2016.
See AR at 11. At step one, he concludes that Sida
has not engaged in substantial gainful activity since the
alleged disability onset date of November 1, 2010.
See AR at 16. At step two, ALJ O'Melinn finds
Sida's bilateral shoulder pain and torn rotator cuff,
along with his “mental disorders variously diagnosed as
posttraumatic stress disorder, depression[, ] and anxiety,
” to be severe impairments. AR at 17. In contrast, ALJ
O'Melinn finds Sida's hypertension, foot pain,
thyroid and liver disorders, and alcohol abuse to be
non-severe. See AR at 17-18.
three, ALJ O'Melinn concludes that none of Sida's
impairments, alone or in combination, meet or medically equal
the severity of a listed impairment in 20 C.F.R. § 404,
Subpart P, App. 1. See AR at 19-20. Specifically,
ALJ O'Melinn considers Sida's mental impairments
under Listing 12.04 (affective disorders) and 12.06
(anxiety-related disorders). ALJ O'Melinn determines that
the evidence does not satisfy the paragraph B criteria of
these Listings,  “[b]ecause the claimant's mental
impairments do not cause at least two ‘marked'
limitations or one ‘marked' limitation and
‘repeated' episodes of decompensation, each of
extended duration.” AR at 20. He then explains his
reasoning regarding paragraph B's four subparts.
O'Melinn begins by evaluating Sida's activities of
daily living (“ADLs”). See AR at 19. ALJ
O'Melinn finds Sida to have only a mild restriction.
See AR at 19. ALJ O'Melinn references Sida's
testimony that “he could do household cleaning and
chores, ” along with Sida's self-reporting that he
can clean, perform most house repairs, do yard work, or work
with firewood for up to two hours per day. AR at 19.
Moreover, ALJ O'Melinn focuses on Sida's
self-reporting that, to the extent he has limitations in
personal care, they “[are] not due [to] mental
functioning but rather lack of transportation or
money.” AR at 19.
ALJ O'Melinn finds Sida has only mild difficulties with
social functioning. ALJ O'Melinn cites statements from
Sida's “Adult Function Report, ” AR at
236-45, in support, including that Sida can shop for basic
needs when able to find transportation, and that Sida
receives and maintains food stamps. See AR at 19.
ALJ O'Melinn further observes that Sida visits his family
on a regular basis, sees his girlfriend daily, and reports no
general difficulties in getting along with others.
See AR at 19.
ALJ O'Melinn finds that Sida has moderate difficulties
with concentration, persistence, and pace. ALJ O'Melinn
describes Sida's accounts of difficulties, including
difficulty following written instructions, finishing what he
starts, and handling stress well. See AR at 19. ALJ
O'Melinn does not, however, take all of Sida's
self-reported challenges at face value. Indeed, while Sida
“reported he could not handle money by paying bills,
counting change, etc., ” ALJ O'Melinn emphasizes
Sida's own explanation that “the reason was due to
[Sida's] lack of a job.” AR at 19. Similarly, while
Sida alleges memory problems, “the only example he gave
is walking from one room to another and forgetting what he
was going to the new room to get.” AR at 19. To ALJ
O'Melinn, this problem represents “a routine
experience, ” which, when considered alongside
Sida's other self-reporting, leads ALJ O'Melinn to
find no more than a moderate difficulty in this area.
O'Melinn concludes his paragraph B discussion by finding
that Sida “has experienced no episodes of
decompensation, which have been of extended duration.”
AR at 20.
his paragraph B findings, ALJ O'Melinn also considers
whether Sida qualifies under the paragraph C
criteria. ALJ O'Melinn answers this inquiry in
the negative, finding that “the evidence fails to
establish the presence of the ‘paragraph C'
criteria.” AR at 20.
concluding that none of Sida's impairments satisfy an
applicable Listing, ALJ O'Melinn moves to step four and
assesses Sida's residual functional capacity
(“RFC”). See AR at 16-21. After stating
that he had given “careful consideration of the entire
record, ” ALJ O'Melinn determines that Sida
has the residual functional capacity to perform light work as
defined in 20 [C.F.R. §§] 404.1567(b) and
416.967(b) except that he is further limited to occasional
pushing or pulling with the lower left extremity. He is
limited to frequently climbing ramps or stairs, occasionally
climbing ladders, ropes or scaffolds, occasionally balancing,
stooping, kneeling, crouching, crawling, and occasional
bilateral reaching. He can understand, carry out and remember
simple instructions and make commensurate work related
decisions, respond appropriately to supervision, coworkers
and work situations, deal with routine changes in work
setting, and maintain concentration persistence and pace for
up to and including two hours at [a] time with normal breaks
throughout the work day.
develop Sida's RFC, ALJ O'Melinn relies on three
separate grounds. First, ALJ O'Melinn renders an adverse
credibility finding against Sida, opining that Sida's
“statements concerning the intensity, persistence[, ]
and limiting effects of [his] symptoms are not entirely
credible.” AR at 21. To support his finding, ALJ
O'Melinn contrasts Sida's statements concerning the
severity of his symptoms with evidence of record and finds
that the evidence does not substantiate Sida's
contentions. See AR at 21-23.
threshold issue, ALJ O'Melinn addresses two allegations
that Sida advances. First, ALJ O'Melinn challenges
Sida's contention that the federal Division of Vocational
Rehabilitation (“DVR”) stopped assisting him
because he was filing for disability. ALJ O'Melinn
dismisses this supposition, opining that “[i]t makes
little sense that a vocational rehabilitation agency would
refuse to work with a person with disabilities.” AR at
21. ALJ O'Melinn concludes that Sida's allegation
that the “DVR would [n]ot work with him due to alleged
disability is incredible.” AR at 21. Similarly, ALJ
O'Melinn questions Sida's account that “he had
to sell his sandblasting equipment to pay child
support.” AR at 21. ALJ O'Melinn contrasts this
statement with Sida's testimony that he “had his
license revoked” and had “been incarcerated for
non-payment of child support in the past.” AR at 21.
ALJ O'Melinn reasons that Sida's “attempt to
open his own business failed for reasons unrelated to
disability, ” and finds that Sida's statements on
both the closure of the sandblasting company and DVR's
unwillingness to assist him based on disability
“undermine[s] his credibility and the merits of his
claim.” AR at 21.
O'Melinn also assigns “little weight” to
Sida's allegations concerning the severity of his
symptoms and, by O'Melinn's account, “relied
upon more credible evidence.” AR at 21. ALJ
O'Melinn begins this discussion by recalling Sida's
statement that “he has not healed from rotator cuff
surgery and that his range of motion is limited, only being
able to lift his left arm to shoulder height.” AR at
21. Then, turning to the medical records, ALJ O'Melinn
notes that Sida was treated for shoulder pain in July and
August 2013, and prescribed medication. See AR at
22. At a routine follow-up in October 2013, Sida reported
that his shoulder pain continued, but that he had not started
taking his medication. See AR at 22. The clinician
observed that Sida smelled of alcohol and declared that he
was at the appointment only to build up his case for
disability. See AR at 22. In the ALJ
O'Melinn's eyes, this “medication
non-compliance coupled with the above statement by [Sida]
diminishes the credibility of [Sida].” AR at 22.
O'Melinn also discusses Sida's shoulder pain from
2014, which Sida describes as originating when he “was
fighting and fell on a chair.” AR at 22. Falling out of
a tree the next year aggravated Sida's injury.
See AR at 22. Sida underwent surgery in March 2015,
“and follow up appointments indicated steady
improvement in pain level and range of motion.” AR at
22. Clinical notes remark that Sida “had full range of
motion, still had some popping in the shoulder[, ] but was
not in any pain” at his July 2015, follow up. AR at 22.
Moreover, ALJ O'Melinn emphasizes that Sida participated
in physical therapy from April through July 2015, for eleven
visits, and that notes indicate that he “reached
maximum rehabilitation potential [and] no further physical
therapy was needed.” AR at 22. Based on these clinical
observations, ALJ O'Melinn opines that, “[w]hile
the fact that [Sida] underwent surgery suggests the symptoms
were genuine, this is offset by the fact that the record
reflects the surgery was generally successful in relieving
the symptoms.” AR at 22.
O'Melinn closes his adverse credibility finding by
comparing Sida's statements concerning his mental
impairments to the medical evidence of record. Sida reports
treatment from several providers for depression, PTSD, and
anxiety beginning in 2013 at Ben Archer Health Center.
See AR at 22. Sida reports that, at that time, he
“hear[d] music in his ears at times along with ringing
but denied visual hallucinations.” AR at 22. At a
follow-up appointment, Sida describes continued anxiety, but
also relates that he has not started his prescribed
medication and has stopped attending behavioral therapy.
See AR at 22. Later treatment at La Frontera in 2014
and 2015 reveals a similar pattern. See AR at 23.
Sida was treated for depression and anxiety, but treatment
notes record further non-compliance with medication.
See AR at 23. Nevertheless, “treatment records
note progress with medication effectiveness as they adjust
the medication and amounts, ” including an escalation
of Sida's Global Assessment of Functioning
(“GAF”) scoresfrom 35 to the 70s in the most recent
tests of April and June 2015. AR at 23. ALJ O'Melinn drew
two conclusions from Sida's mental health history: (i)
that his “non-compliance with medication demonstrates a
possible unwillingness to do that which is necessary to
improve his condition, ” which might indicate his
symptoms are less severe than purported; and (ii) that, with
proper treatment, Sida demonstrates “significant
improvement.” AR at 22-23.
O'Melinn also weighs the statements of Sida's
girlfriend, Deborah Apodaca, as the second basis for his RFC
finding. In ALJ O'Melinn's estimation, the statements
that Apodaca provide concerning Sida's condition
“appear to only repeat the subjective complaints
already testified to and reported by [Sida].” AR at 24.
Furthermore, ALJ O'Melinn opines that Apodaca is neither
a medical professional nor an uninterested party.
See AR at 24. “Most importantly, ” ALJ
O'Melinn concludes, “the clinical or diagnostic
medical evidence that is discussed more thoroughly herein
does not support [her] statements.” AR at 24. Thus, ALJ
O'Melinn finds Apodaca's statements “not
credible.” AR at 24.
ALJ O'Melinn relies on the medical evidence of record. To
begin, ALJ O'Melinn accords “some weight” to
consultative examiner Dr. Marian Landau, D.O. AR at 23. Dr.
Landau finds Sida has full motor strength in the proximal and
distal muscle groups in the upper and lower extremities.
See AR at 23. Dr. Landau finds that Sida has
tenderness in his left forefoot, and ultimately diagnoses him
with “chronic left foot pain” and uncontrolled
hypertension. AR at 23. ALJ O'Melinn accords the opinion
some weight, rather than significant weight, as he finds that
Dr. Landau “did not have the opportunity to review
additional evidence only available at the hearing level
regarding [Sida's] impairments, including medical
improvement.” AR at 23.
O'Melinn also assigns “some weight” to the
non-examining agency consultants' opinions who assessed
Sida's physical impairments. AR at 23. These two doctors
-- Dr. Karine Lancaster, M.D., and Dr. Tom Dees, M.D. -- both
opine that Sida “is capable of work at the medium
exertional level except [he] is further limited to occasional
push/pull with the left lower extremities, can frequently
climb ramps and stairs, occasionally climb ladders, ropes[, ]
and scaffolds, occasionally balance, frequently crouch[, ]
and occasionally crawl.” AR at 23. ALJ O'Melinn
hesitates to grant these opinions more than “some
weight, ” as he finds Dr. Landau's opinions
“more consistent with the record as a whole, ”
and also because neither Dr. Lancaster nor Dr. Dees has
“the benefit of considering the additional evidence
that was available only after the reconsideration
determination, including subsequent medical evidence and the
hearing testimony.” AR at 23.
ALJ O'Melinn considers the non-examining agency
psychologists' opinions and accords their opinions
“little weight.” AR at 23-24. These clinicians,
Dr. Ralph Rabinowitz, Ph.D., and Dr. Thomas VanHosse, Ph.D.,
both rate Sida's mental impairments as “less than
non-severe.” AR at 24. ALJ O'Melinn discounts their
opinions, as neither has had the opportunity to review the