United States District Court, D. New Mexico
JACQUELINE D. LEWNES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on plaintiff Jacqueline D.
Lewnes's Motion to Reverse or Remand for a Rehearing with
Supporting Memorandum (Doc. 17), which was fully briefed on
October 16, 2018. See Docs. 19, 20, 21. The parties
consented to my entering final judgment in this case. Docs.
4, 7, 8. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) improperly
rejected the opinion of Ms. Lewnes's treating therapist,
Rose Wolfenbarger, LPCC. I therefore GRANT Ms. Lewnes'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. §§
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
Lewnes was born in 1966, earned a bachelor's degree in
fine arts, and worked for many years running her own
housecleaning business (working approximately eight hours per
week). AR 39, 190, 225. Ms. Lewnes filed an application for
disability insurance benefits (“DIB”) on
September 24, 2014 and an application for supplemental
security income (“SSI”) on November 6, 2014,
alleging disability since December 16, 2012 due to post
traumatic stress disorder (“PTSD”). AR 190-92,
192-97, 224. The Social Security Administration
(“SSA”) denied her DIB claim initially on
February 14, 2015. AR 122-26. The SSA denied her DIB claim on
reconsideration on July 7, 2015. AR 130-32. Ms. Lewnes
requested a hearing before an ALJ. AR 144-45. On February 3,
2017, ALJ Michael Leppala held a hearing. AR 31-102.
Leppala issued his unfavorable decision on May 3, 2017. AR
7-23. The ALJ found that Ms. Lewnes met the insured status
requirements of the Social Security Act through December 31,
2018. AR 12. At step one, the ALJ found that Ms. Lewnes had
not engaged in substantial, gainful activity since December
16, 2012, her alleged onset date. Id. At step two,
the ALJ found that Ms. Lewnes's PTSD and depressive
disorder were severe impairments. Id. The ALJ found
that Ms. Lewnes's right knee injury was a non-severe
impairment. Id. At step three, the ALJ found that
none of Ms. Lewnes's impairments, alone or in
combination, met or medically equaled a Listing. AR 13-14.
Because the ALJ found that none of the impairments met a
Listing, the ALJ assessed Ms. Lewnes's RFC. AR 14-17. The
ALJ found Ms. Lewnes had the RFC to do the following:
lifting and/or carrying 50 pounds occasionally and 25 pounds
frequently; standing and/or walking for about 6 hours in an
8-hour workday, and sitting for about 6 hours in an 8-hour
workday, with normal breaks. She can 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 a normal workday. The
Claimant is limited to occasional interaction with the public
and frequent interaction with coworkers.
four, the ALJ concluded that Ms. Lewnes's prior work as a
housecleaner did not meet the “recency, earnings, and
duration requirements of past relevant work.” AR 17.
The ALJ concluded that Ms. Lewnes was not capable of
performing any past relevant work because she did not have
any past relevant work. Id. The ALJ found Ms. Lewnes
not disabled at step five because she could perform jobs that
exist in significant numbers in the national economy, such as
kitchen helper and hospital cleaner. AR 17-18. On May 8,
2017, Ms. Lewnes requested that the Appeals Council review
the ALJ's unfavorable decision. AR 189. On January 23,
2018, the Appeals Council denied the request for review. AR
1-6. Ms. Lewnes timely filed her appeal to this Court on
March 23, 2018. Doc. 1.
Ms. Lewnes's Claims
Lewnes raises two arguments for reversing and remanding this
case: (1) the ALJ improperly rejected the opinion of her
treating therapist, Rose Wolfenbarger, LPCC (“LPCC
Wolfenbarger”); and (2) the ALJ failed to properly
consider the opinion of her treating physician, Dr. B.J.
Davis. See Doc. 17. I find that the ALJ erred by
failing to properly consider the opinion of LPCC
Wolfenbarger. Because I remand based on the ALJ's failure
to properly analyze this opinion, I do not address the other
alleged error, 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).
The ALJ failed to properly consider the opinion of
treating therapist, LPCC Wolfenbarger.
Lewnes argues that the ALJ erred in not discussing what
weight he gave LPCC Wolfenbarger's opinion. Doc. 17 at
17. She further argues that the reasons the ALJ gave for
“dismissing” LPCC Wolfenbarger's opinion are
not valid. Id. at 17-18. The Commissioner responds
that “the ALJ gave good reasons for discounting [LPCC
Wolfenbarger's] extreme opinion[s]” and urges the
Court not to disturb the ALJ's decision. Doc. 19 at 8.
For the reasons discussed below, I agree with Ms. Lewnes.
Wolfenbarger is considered an “other source”
under the regulations. See SSR 06-03p, 2006 WL
2329939, at *2 (Aug. 9, 2006). An “other source”
cannot give a “medical opinion, ” cannot
establish the existence of a medically determinable
impairment, and is not considered a “treating
source.” Id. However, “other
source” opinions “are important and should be
evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in
the file.” Id. at *3. Opinions from
“other sources” are weighed using the same
factors used to weigh opinions from acceptable medical
sources. Id. at *4-*5; Frantz v. Astrue,
509 F.3d 1299, 1302 (10th Cir. 2007). Those factors are:
(1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the
treatment relationship, including the treatment provided and
the kind of examination or testing performed; (3) the degree
to which the [other source's] opinion is supported by
relevant evidence; (4) consistency between the opinion and
the record as a whole; (5) whether or not the [other source]
is a specialist in the area upon which an opinion is
rendered; and (6) other factors brought to the ALJ's
attention which tend to support or contradict the opinion.
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir.
2004) (citation omitted); 20 CFR §§ 404.1527(c),
416.927(c) (both effective March 27, 2017). The ALJ
“should explain the weight given to opinions from these
‘other sources,' or otherwise ensure that the
discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the
adjudicator's reasoning, when such opinions may have an
effect on the outcome of the case.” SSR 06-03p, 2006 WL
2329939, at *6.
Frantz, the Tenth Circuit held that an ALJ erred by
not discussing what weight he gave an “other
source” opinion on the severity and functional effects
of the claimant's limitations. 509 F.3d at 1302. It also
is error for an ALJ to ignore evidence from an “other
source” which would support a finding of disability,
“while highlighting evidence favorable to the finding
of nondisability.” Id.; see also Clifton
v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)
(“[I]n addition to discussing the evidence supporting
his decision, the ALJ also must discuss the uncontroverted
evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.”).
case, LPCC Wolfenbarger, who treated Ms. Lewnes at least 189
times between 2013 and 2017, AR 428, completed a Medical
Assessment of Ability to Do Work-Related Activities (Mental)
on March 27, 2015, in ...