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Sanchez v. Berryhill

United States District Court, D. New Mexico

December 19, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.


          Laura Fashing United States Magistrate Judge.

         THIS 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.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] 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. 2007).

         “Substantial 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)).

         II. Applicable Law and Sequential Evaluation Process

         To 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), 416.905(a).

         When 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[2] 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. Id.

         III. Background and Procedural History

         Mr. Sanchez was born in 1961, graduated from high school, and worked doing maintenance and janitorial work and delivering medical supplies. AR 176, 241-42.[3] 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.[4] 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).

         After 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. Id.[5]

         On 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 reachi[]ng, but no overhead reaching on the right; required a cane for prolonged walking; and limited to simple decisions with few workplace changes.

AR 474-75.

         At step 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).[6] Mr. Sanchez timely filed his second appeal to this Court on May 31, 2017.[7] Doc. 1.

         IV. Mr. Sanchez's Claims

         Mr. 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.

         V. Analysis

         A. The ALJ impermissibly picked and chose from the moderate mental limitations found by treating psychiatrist Dr. Blacharsh.

         Mr. 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.

         Although 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. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)).

         In 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.”).

         Dr. 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 ‚Äúconsider [Mr. Sanchez's] medical history and the chronicity of findings as from a year prior to initial visit to current ...

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