United States District Court, D. New Mexico
ANDREW J. SANCHEZ, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge.
MATTER comes before the Court on plaintiff Andrew J.
Sanchez's Motion to Reverse and Remand for Rehearing with
Supporting Memorandum (Doc. 15), which was fully briefed on
March 5, 2018. See Docs. 17, 21, 22. The parties
consented to my entering final judgment in this case. Docs.
6, 8, 9. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) erred by
impermissibly picking and choosing from the moderate mental
limitations found by treating psychiatrist Dr. Blacharsh, and
by failing to properly assess Mr. Sanchez's use of a cane
in formulating his residual functional capacity
(“RFC”). I therefore GRANT Mr. Sanchez's
motion IN PART 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. §§
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; 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), 416.920(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.
Background and Procedural History
Sanchez was born in 1961, graduated from high school, and
worked doing maintenance and janitorial work and delivering
medical supplies. AR 176, 241-42. He filed applications for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on October
27, 2010, alleging disability due to problems with his right
elbow, right knee, and with both ankles. AR 176-89, 241. The
Social Security Administration (“SSA”) denied his
claims initially on December 2, 2010. AR 93-96. The SSA
denied his claims on reconsideration on June 14, 2011. AR
102-05. Mr. Sanchez requested a hearing before an
ALJ. AR 106. On November 9, 2012, ALJ Barbara Perkins held a
hearing. AR 50-84. At the hearing, ALJ Perkins advised Mr.
Sanchez that she would issue a favorable decision. AR 82. The
case was subsequently reassigned to ALJ Ann Farris, who held
a second hearing on November 19, 2013. AR 27-49. ALJ Farris
issued an unfavorable decision on December 12, 2013. AR 8-26.
On January 13, 2014, Mr. Sanchez requested review of the
ALJ's unfavorable decision by the Appeals Council. AR
4-5. On April 10, 2015, the Appeals Council denied the
request for review. AR 1-3. Mr. Sanchez filed his first
appeal to this Court on June 9, 2015. Sanchez v.
Colvin, No. 15cv482-SMV, Doc. 1 (June 9, 2015).
Mr. Sanchez filed his first Motion to Reverse and Remand for
a Rehearing, the Commissioner filed an Unopposed Motion to
Remand, which the Court granted. Id., Docs. 16, 23,
24. On remand, the Appeals Council directed the ALJ to
further consider Mr. Sanchez's RFC: to provide specific
references to evidence of record in support of assessed
limitations, to explain the weight given to the opinions of
the state agency medical consultants, to obtain evidence from
a vocational expert (“VE”), and, before relying
on the VE's testimony, to resolve any conflicts between
the VE's testimony and the Dictionary of Occupational
Titles (“DOT”) and Selected Characteristics of
Occupations (“SCO”). AR 469, 523-24. While his
first appeal was pending, Mr. Sanchez filed second
applications for both DIB and SSI. AR 523. On March 26, 2016,
the SSA issued a favorable determination finding Mr. Sanchez
disabled beginning on April 1, 2015 for his DIB claim and
June 9, 2015 for his SSI claim. Id. The Appeals
Council consequently limited the period before the ALJ on
remand to the period before June 9, 2015.
December 13, 2016, ALJ Ann Farris held another hearing. AR
489-520. On February 2, 2017, ALJ Farris issued a second
unfavorable decision. AR 466-88. At step one, the ALJ found
that Mr. Sanchez had not engaged in substantial, gainful
activity since February 10, 2009, his alleged onset date. AR
472. At step two, the ALJ found that Mr. Sanchez suffered
from the severe impairments of osteoarthritis of the knees
and right elbow, obesity, and depression. Id. At
step three, the ALJ found that none of Mr. Sanchez's
impairments, alone or in combination, met or medically
equaled a Listing. AR 472-74. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Mr.
Sanchez's RFC. AR 474-79. The ALJ found Mr. Sanchez had
the RFC to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except no climbing, kneeling, crouching, or
crawling; occasionally stooping; occasionally reaching, but
no overhead reaching on the right; required a cane for
prolonged walking; and limited to simple decisions with few
four, the ALJ concluded that Mr. Sanchez was unable to
perform his past relevant work doing building maintenance, or
as a janitor, general laborer, or deliverer. AR 479. The ALJ
found Mr. Sanchez not disabled at step five because he could
perform jobs that exist in significant numbers in the
national economy-such as counter clerk and [call-out]
operator. AR 480. Because this Court previously remanded Mr.
Sanchez's case, Mr. Sanchez was not required to seek
Appeals Council review again, and the ALJ's decision
stands as the final decision of the Commissioner.
See 20 C.F.R. § 404.984(a). Mr. Sanchez
timely filed his second appeal to this Court on May 31,
2017. Doc. 1.
Mr. Sanchez's Claims
Sanchez raises three arguments for reversing and remanding
this case: (1) the ALJ impermissibly picked and chose from
the moderate limitations assessed by treating psychiatrist
Dr. Jill Blacharsh; (2) the ALJ failed to do a
function-by-function assessment and, in particular, failed to
assess how his use of a cane impacted his RFC; (3) the ALJ
erroneously relied on the VE's testimony at step five
without resolving conflicts between the VE's testimony
and the DOT and SCO. See Doc. 15. For the reasons
explained below, I find that Mr. Sanchez's first two
arguments have merit, and I remand on those bases. Mr.
Sanchez's third argument is without merit.
The ALJ impermissibly picked and chose from the moderate
mental limitations found by treating psychiatrist Dr.
Sanchez argues that the ALJ impermissibly picked and chose
from the numerous mental limitations assessed by his treating
psychiatrist, Dr. Jill Blacharsh. Doc. 15 at 16-21. He argues
that the ALJ rejected some of the moderate concentration and
persistence limitations in Dr. Blacharsh's opinion
without explanation. Id. at 19. He further argues
that the ALJ did not give adequate reasons for rejecting the
numerous social interaction limitations in Dr.
Blacharsh's opinion. Id. at 15-16. The
Commissioner argues that “[t]he ALJ's treatment of
Dr. Blacharsh's opinion was well-reasoned and supported
by the record, and should not be disturbed on review.”
Doc. 17 at 9-10. For the reasons discussed below, I agree
with Mr. Sanchez.
an ALJ need not discuss every piece of evidence, he or she is
required to discuss the weight assigned to each medical
source opinion. Keyes-Zachary v. Astrue, 695 F.3d
1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§
404.1527(e)(2)(ii), 416.927(e)(2)(ii)). Specifically, when
assessing a plaintiff's RFC, an ALJ must explain what
weight is assigned to each opinion and why. SSR 96-5p, 1996
WL 374183, at *5 (July 2, 1996). “If the RFC assessment
conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not
adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July 2,
1996). “[T]here is no requirement in the regulations
for a direct correspondence between an RFC finding and a
specific medical opinion on [a specific] functional
capacity” because “the ALJ, not a physician, is
charged with determining a claimant's RFC from the
medical record.” Chapo v. Astrue, 682 F.3d
1285, 1288 (10th Cir. 2012) (alteration and internal
quotation marks omitted); see also Wells v. Colvin,
727 F.3d 1061, 1071 (10th Cir. 2013) (“exact
correspondence between a medical opinion and the mental RFC
is not required”). Nevertheless, “[a]n ALJ is not
entitled to pick and choose through an uncontradicted medical
opinion, taking only the parts that are favorable to a
finding of nondisability.” Chapo, 682 F.3d at
1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208
(10th Cir. 2007)). An ALJ “must discuss the
uncontroverted evidence he chooses not to rely upon, as well
as significantly probative evidence he rejects.”
Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir.
1996). Ultimately, an ALJ is 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; see also Keyes-Zachary, 695 F.3d
at 1161 (same) (citing 20 C.F.R. §§
Haga, the Tenth Circuit held that an ALJ erred in
failing to explain why he adopted some of a consultative
examiner's (“CE”) restrictions but rejected
others. 482 F.3d at 1208. “[T]he ALJ did not state that
any evidence conflicted with [the CE's] opinion or mental
RFC assessment. So it is simply unexplained why the ALJ
adopted some of [the CE's] restrictions but not
others.” Id. The court remanded the case
“so that the ALJ [could] explain the evidentiary
support for his RFC determination.” Id. The
prohibition against picking and choosing outlined in
Haga also applies to the opinions of treating
physicians. See Robinson v. Barnhart, 366 F.3d 1078,
1083 (10th Cir. 2004) (“The ALJ is not entitled to pick
and choose from a medical opinion, using only those parts
that are favorable to a finding of nondisability.”).
Blacharsh was Mr. Sanchez's treating psychiatrist.
See AR 922-25, 928-31, 934-37, 951-54 (documenting
visits between January and June 2015). On June 9, 2015, Dr.
Blacharsh completed a Medical Assessment of Ability to Do
Work-Related Activities (Mental), which asked her to
“consider [Mr. Sanchez's] medical history and the
chronicity of findings as from a year prior to initial visit
to current ...