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Lewnes v. Berryhill

United States District Court, D. New Mexico

March 27, 2019

JACQUELINE D. LEWNES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING, UNITED STATES MAGISTRATE JUDGE

         THIS 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.[1] I therefore GRANT Ms. Lewnes's motion 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[2] 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[3] 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

         Ms. 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.[4] 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.[5] 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.

         ALJ 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.

AR 14.

         At step 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.[6]

         IV. Ms. Lewnes's Claims

         Ms. 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).

         V. Analysis

         A. The ALJ failed to properly consider the opinion of treating therapist, LPCC Wolfenbarger.

         Ms. 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.

         LPCC Wolfenbarger is considered an “other source” under the regulations. See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).[7] 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.

         In 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.”).

         In this 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 ...


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