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Sherman v. Berryhill

United States District Court, D. New Mexico

June 12, 2019

GREGORY PAUL SHERMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Gregory Paul Sherman's (“Mr. Sherman”) Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 18) (“Motion”), filed September 28, 2018, seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“Commissioner”) denying Mr. Sherman's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits under 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner filed a response in opposition to the Motion on November 15, 2018, (Doc. 19), and Mr. Sherman filed a reply in support of the Motion on December 21, 2018. (Doc. 21.) Having meticulously reviewed the entire record and the applicable law and being otherwise fully advised in the premises, the Court FINDS that Mr. Sherman's Motion is well taken and should be GRANTED.

         I. Legal Standards

         A. Standard of Review

         This Court must affirm the Commissioner's final decision denying social security benefits unless: (1) “substantial evidence” does not support the decision; or, (2) the Administrative Law Judge (“ALJ”) did not apply the correct legal standards in reaching the decision.[2] 42 U.S.C. §§ 405(g), 1383(c)(3); Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The Court must meticulously review the entire record but may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008); 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. Although the Court may not re-weigh the evidence or try the issues de novo, its consideration of the record must include “anything that may undercut or detract from the [agency]'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 agency's] findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Thus, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the 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, 1009-10 (10th Cir. 1996).

         B. Disability Determination Process

         A person must, inter alia, be “under a disability” to qualify for disability insurance benefits under Title II; similarly, a “disabled” person may qualify for supplemental security income benefits under Title XVI. 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1). An individual is considered to be “under a disability” if he 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).

         The Commissioner has adopted a five-step sequential analysis to determine whether a person satisfies the statutory criteria:

(1) At step one, the ALJ must determine whether the claimant is engaging in “substantial gainful activity.”[3] If the claimant is engaging in substantial gainful activity, he is not disabled regardless of his medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment (or combination of impairments) that is severe and meets the duration requirement, he is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment meets or equals in severity one of the listings described in Appendix 1 of 20 C.F.R. Part 404, Subpart P, and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If none of the claimant's impairments meet or equal one of the listings, the ALJ must determine at step four whether the claimant can perform his “past relevant work.” This step involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ must consider all of the relevant evidence and determine what is “the most [claimant] can still do despite [his physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. Second, the ALJ must determine the physical and mental demands of the claimant's past work. Third, the ALJ must determine whether, given the claimant's RFC, the claimant is capable of meeting those demands. A claimant who is able to perform his past relevant work is not disabled.
(5) If the claimant is unable to perform his past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan, 399 F.3d at 1261. The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         II. Background and Procedural History

         A. Factual Background

         Mr. Sherman alleges that he became disabled on November 21, 2010 because of Bipolar Disorder, Attention Deficit Disorder, Anxiety Disorder (NOS) and Social Phobia. (Doc. 18 at 1, AR 36, 224-230, 241, 542.)[4] Mr. Sherman has a law degree and worked as an attorney from 1998 to 2003. (AR 51-53, 283-90, 339.) He worked as a telemarketer and a temporary worker between 2003 and 2006, and as a substitute teacher from 2006 to 2012. (AR 38-39, 283-90, 337, 339.) In 2016, he worked ten to fifteen hours per week as a legal assistant, and in 2017 he worked briefly at the New Mexico State Fair. (AR 571-72.) Mr. Sherman testified that two factors have prevented him from working on a more regular basis. First, he testified that he always “end[s] up saying something that [he] shouldn't say, ” which often leads directly to the termination of his employment.[5] (AR 572-73; cf. AR 45 (“[E]very job that I have done . . . from my job at the Public Defender Department onward . . . I managed to do something that has either got me fired or I've failed at the job so miserably I've been unable to continue with that.”).) Second, he testified that he has problems concentrating for several hours together on a consistent basis. (AR 573.)

         The earliest treatment notes in the record indicate that, by November 1, 2004, Mr. Sherman was an established patient at the Las Cruces Mental Health Center (“LCMHC”). (AR 375.) He received mental health treatment at LCMHC two to eleven times per year through June 17, 2009, [6]by which date his providers had diagnosed him with bipolar disorder, ADD, and avoidant schizoid personality, and prescribed Depakote, [7] Ritalin, [8] Effexor, [9] and Abilify[10] to treat these disorders. (AR 345-75.) In November 2009, Mr. Sherman changed treatment providers to the Southwest Counseling Center (“SWCC”), where he received mental health treatment approximately four times per year until July 2012.[11] (AR 377-81, 415-17.) By July 2012, his providers at the SWCC had diagnosed him with bipolar disorder and ADD, and prescribed Depakote, Dexedrine, [12] and Lexapro[13] to treat these disorders. (AR 381, 393, 415-17.) In her July 11, 2012 treatment plan review, Virginia Chavez, L.I.S.W., noted that Mr. Sherman no longer had a job in Las Cruces and would be moving to Albuquerque. (AR 415.)

         After moving to Albuquerque, Mr. Sherman sought treatment from Kevin Rexroad, M.D., a psychiatrist. (AR 457-60, 830.) The record indicates that Dr. Rexroad saw Mr. Sherman about twenty-three (23) times between August 2012 and November 2017.[14] (AR 454-75, 489-98, 909- 26, 945-48.) Dr. Rexroad originally diagnosed Mr. Sherman with unspecified episodic mood disorder, anxiety (rule out post-traumatic stress disorder and obsessive compulsive disorder), and rule out Asperger's syndrome.[15] (AR 460.) These diagnoses evolved over the years to become, by November 2017, bipolar I disorder and anxiety disorder not otherwise specified. (AR 945.) Dr. Rexroad also changed Mr. Sherman's prescription medications and dosages a No. of times, originally prescribing Depakote ER 1000 milligrams per day, Venlafaxine 15 milligrams per day, and Dexedrine 10 milligrams per day as needed, and by November 2017 prescribing Depakote ER 1, 000 milligrams per day, Venlafaxine 50 milligrams twice a day, and Bupropion[16] 75 milligrams twice a day. (AR 458, 460, 945.) Dr. Rexroad also referred Mr. Sherman to psychotherapy with various providers, [17] for a sleep study, and for an autism spectrum evaluation at the University of New Mexico Transdisciplinary Evaluation and Support Clinic (“TEASC”) in October 2016. (AR 454-75, 489-98, 880-85, 909-26, 945-48.) At the TEASC evaluation, Drs. Richard Campbell, Cynthia King, and Toni Benton ruled out ASD, maintained Mr. Sherman's diagnosis of bipolar I disorder, and added a diagnosis of social anxiety disorder (social phobia). (AR 884-85.)

         Dr. Rexroad completed three “Medical Assessment[s] of Ability to do Work-Related Activities (Mental)” regarding Mr. Sherman, in April 2013, February 2014, and January 2018. (AR 468-69, 477-78, 940-41.) Each of these forms indicated that Dr. Rexroad was to “consider the patient's medical history and the chronicity of findings as from a year prior to initial visit to current examination.” (Id. (emphasis omitted).) In April 2013, Dr. Rexroad assessed Mr. Sherman as having seven marked limitations, one marked to moderate limitation, and two moderate limitations in various work-related mental activities. (AR 468-69.) In February 2014, Dr. Rexroad assessed Mr. Sherman as having six marked and eight moderate limitations (AR 477-78); and, in January 2018, Dr. Rexroad assessed Mr. Sherman as having eight marked and six moderate limitations. (AR 940-41.)

         Paula Hughson, M.D., conducted a consultative psychiatric examination of Mr. Sherman on October 29, 2012.[18] (AR 427-31.) She assessed Mr. Sherman as “a rather textbook case of manic depressive illness, or Bipolar I Disorder, ” and found that “[t]his illness has had severe repercussions in his personal and professional life.” (AR 431.) She noted that Mr. Sherman “would certainly benefit from more frequent contact with his psychiatrist” but that he was limiting his visits to Dr. Rexroad for financial reasons. (Id.) She further opined that Mr. Sherman

should be encouraged to work with DVR towards hopefully finding some type of work, commensurate with his intelligence and level of education, but with minimal contact with the public.[19] He is gravely affected by his chronic mental illness. He could not be considered capable of fully supporting himself or being able to provide for the specialized mental health treatment which he will continue to require indefinitely.

(Id.) Dr. Hughson assessed Mr. Sherman as having one marked, one marked to moderate, and five moderate impairments in his ability to engage in various work-related mental activities. (AR 432.)

         In November 2012, non-examining psychological consultant Jay Rankin, M.D., completed a Mental Residual Functional Capacity Assessment (“MRFCA”) of Mr. Sherman on initial consideration of Mr. Sherman's March 2012 applications for social security benefits. (AR 86-88.) Non-examining psychological consultant Sheri L. Simon, Ph.D., concurred with Dr. Rankin's assessment on reconsideration in March 2013. (AR 102-04.) Drs. Rankin and Simon assessed Mr. Sherman as having eight moderate limitations in various work-related mental activities. (AR 86-88, 102-04.) Finally, in May 2017, non-examining psychological consultant Cathy Simutis, Ph.D., completed a MRFCA of Mr. Sherman on initial consideration of Mr. Sherman's April 2016 application for social security benefits. (AR 651-53.) Dr. Simutis assessed Mr. Sherman as having two moderate limitations in work-related mental activities. (Id.)

         B. Procedural History

         On March 9 and 26, 2012, Mr. Sherman protectively filed applications for disability insurance benefits under Title II, and supplemental security income benefits under Title XVI, of the Social Security Act, alleging an onset date of November 1, 2005. 42 U.S.C. §§ 401 et seq.; 42 U.S.C. §§ 1381 et seq.; (AR 66-67, 194-202.) The agency denied Mr. Sherman's applications at the initial level and upon reconsideration on November 28, 2012 and March 29, 2013, respectively. (AR 66-121.) On May 30, 2013, Mr. Sherman requested a hearing before an ALJ. (AR 136-38.) ALJ Ann Farris conducted a hearing on August 26, 2014. (AR 32-65.) Mr. Sherman appeared in person at the hearing with attorney representative Michael Armstrong and amended his alleged onset date to November 21, 2010. (Id.) The ALJ took testimony from Mr. Sherman, his father Martin Philip Sherman, and impartial vocational expert (“VE”) Nicole King. (Id.) On October 22, 2014, the ALJ issued a decision finding Mr. Sherman not disabled. (AR 16-26.) The Appeals Council upheld the ALJ's final decision on February 16, 2016. (AR 1-3.)

         On April 19, 2016, Mr. Sherman filed a complaint seeking judicial review of the Commissioner's final decision. (AR 620-21.) This Court reversed the Commissioner's decision and remanded the case for further proceedings on March 30, 2017. (AR 622-36.) While the case was still pending before this Court, on April 25, 2016, Mr. Sherman filed a second application for disability insurance benefits under Title II, alleging an onset date of May 1, 2013. (AR 642, 644.) The agency denied this application at the initial level on May 26, 2017. (AR 642-55.) On June 23, 2017, the Appeals Council ordered the ALJ to consolidate Mr. Sherman's applications, create a single record, offer Mr. Sherman another administrative hearing, take any further action to complete the administrative record, and issue a new decision. (AR 639-40.)

         Pursuant to the Appeals Council's instructions, ALJ Farris conducted another administrative hearing on February 6, 2018. (AR 566-94.) Mr. Sherman appeared in person at the hearing with attorney representative William Rode. (Id.) The ALJ took testimony from Mr. Sherman and impartial VE Pamela (or Cindy A.) Harris.[20] (Id.) ALJ Farris issued a second decision finding Mr. Sherman not disabled on March 8, 2018. (AR 538-58.) This appeal followed.

         C. The ALJ's Decision

         In her March 8, 2018 decision, ALJ Farris determined at step one of the sequential evaluation process that Mr. Sherman worked after his amended alleged onset date, but that his work did not rise to the level of substantial gainful activity.[21] (AR 541.) At step two, the ALJ found that Mr. Sherman has the severe impairments of: (1) bipolar disorder; (2) attention deficit disorder (“ADD”); (3) anxiety disorder not otherwise specified; and, (4) social phobia. (AR 542.) The ALJ also found that Mr. Sherman has the nonsevere impairments of hyperlipidemia, hypertension, and obstructive sleep apnea. (Id.) Further, she rejected Mr. Sherman's allegation that he has Asperger's syndrome, based on a 2016 autism spectrum evaluation that ruled out a diagnosis of autism spectrum disorder (“ASD”) in favor of social anxiety disorder (social phobia). (AR 542, 879-85.)

         The ALJ determined at step three that Mr. Sherman's impairments do not meet or medically equal the severity of one of the listings described in Appendix 1 of 20 C.F.R. Part 404, Subpart P. (AR 543-44.) As a result, the ALJ proceeded to step four and found that Mr. Sherman has the RFC to perform a full range of work at all exertional levels but is “limited to work involving simple and some detailed, but not complex, tasks” and requiring only “occasional and superficial interaction with the public and with coworkers.” (AR 544, 556.) Also at step four, the ALJ concluded that Mr. Sherman is unable to perform any of his past relevant work. (AR 556-57.) However, at step five, the ALJ determined that Mr. Sherman is not disabled because, based on his RFC, age, education, and work experience and the VE's testimony, there are jobs that exist in significant No. in the national economy that Mr. Sherman can perform. (AR 557-58.)

         III. Analysis

         In support of his Motion, Mr. Sherman argues that: (1) the ALJ failed to provide adequate reasons for rejecting the medical opinions of Mr. Sherman's treating psychiatrist, Dr. Rexroad; and, (2) in formulating Mr. Sherman's RFC, the ALJ erroneously failed to account for several functional limitations listed in the medical opinions of Drs. Hughson, Rankin, and Simon. (Doc.18 at 1, 26.) For the reasons discussed below, the Court finds that the ALJ failed to provide adequate reasons for the weight she assigned to two of Dr. Rexroad's medical opinions, and, in formulating Mr. Sherman's RFC, she failed to account for an uncontroverted functional limitation identified in the medical source opinions of record. The Court further concludes that these errors were not harmless. As such, this case requires remand.

         A. The ALJ did not provide adequate reasons for the weight she assigned to Dr. Rexroad's February 2014 and January 2018 medical opinions.

         “An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional.”[22] Hamlin, 365 F.3d at 1215 (citation omitted). When the opinion at issue is that of the claimant's treating physician, the ALJ must first consider “whether the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substantial evidence in the record.” Allman v. Colvin, 813 F.3d 1326, 1331-32 (10th Cir. 2016) (quoting Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007)). “If so, the ALJ must give the opinion controlling weight.”[23] Id.

         Moreover, even if a treating physician's medical opinion is not entitled to controlling weight, it is “still entitled to deference” and the ALJ must decide what weight, if any, to give it. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004). Relevant factors the ALJ should consider 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 physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician 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.

Allman, 813 F.3d at 1331-32; Oldham, 509 F.3d at 1258; Robinson, 366 F.3d at 1082; Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003).

         Although she need not specifically address each of the above factors, “an ALJ must give good reasons . . . for the weight assigned to a treating physician's opinion.” Allman, 813 F.3d at 1332; Oldham, 509 F.3d at 1258; Langley, 373 F.3d at 1119. These reasons must be “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight.” Allman, 813 F.3d at 1332; Oldham, 509 F.3d at 1258; Langley, 373 F.3d at 1119. Moreover, “[i]f the ALJ rejects the opinion completely, he must then give specific, legitimate reasons for doing so.” Allman, 813 F.3d at 1332; Langley, 373 F.3d at 1119.

In choosing to reject the treating physician's assessment, an ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.

Langley, 373 F.3d at 1121 (emphasis omitted) (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)); Robinson, 366 F.3d at 1082 (same).

         In addition,

when a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physicians' reports to see if they outweigh the treating physician's report, not the other way around. The treating physician's opinion is given particular weight because of his unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.[24]

Hamlin, 365 F.3d at 1215 (citations and quotation marks omitted); Robinson, 366 F.3d at 1084 (same).

         Here, the ALJ found, and the Commissioner does not dispute, that Dr. Rexroad was Mr. Sherman's treating psychiatrist from August 2012 through at least November 2017. (AR 546-52, 555; Doc. 19 at 5.) The ALJ stated that she gave “[s]ome weight” to “Dr. Rexroad's opinions.” (AR 555.) She explained that she did not give more weight to his April 2013 opinion for two reasons. (Id.) First, she stated that it was “inconsistent with his objective treatment records, which indicate that he only saw the claimant approximately every 3 months, that he rarely made medication changes and in which he opined repeatedly that the claimant was stable.” (AR 555.) Second, the ALJ observed that Dr. Rexroad “stated that the claimant's primary impairment was ‘undiagnosed' Asperger's syndrome, which he later removed as a diagnosis for the claimant after an evaluation by Dr. Campbell, Dr. Benton and Dr. King.” (Id.)

         The ALJ explained that she did not give more weight to Dr. Rexroad's February 2014 opinion because

the marked limitations he opined that the claimant had are inconsistent with his treatment notes, in which he opined that the claimant's condition was stable, and with the claimant's own reports that he spent time with friends, played games and read as a hobby.

(AR 555-56.) The ALJ offered no explanation for why she gave only some weight to Dr. Rexroad's January 2018 opinion regarding Mr. Sherman's work-related mental limitations.[25] (See AR 553, 555-56.)

         The Court first notes that the ALJ failed to follow the treating physician rule because she did not discuss whether Dr. Rexroad's opinions were entitled to controlling weight. Instead, she “collapsed the two-step inquiry into a single point, stating only” the weight she gave the opinions and, with respect to the April 2013 and February 2014 opinions, the reasons why. Chrismon v. Colvin,531 Fed.Appx. 893, 901 (10th Cir. 2013).[26] However, the Tenth Circuit has declined to reverse on this ground where “the ALJ implicitly declined to give . . . controlling weight” to a treating source's opinion. Mays v. Colvin,739 F.3d 569, 575 (10th Cir. 2014). Accordingly, ...


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