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Bosse v. Saul

United States District Court, D. New Mexico

August 23, 2019

ANDREW M. SAUL, Commissioner of the Social Security Administration, [1] Defendant.



         THIS MATTER comes before the Court on plaintiff Joann Patricia Bosse's Motion to Reverse and Remand (Doc. 23), which was fully briefed on December 5, 2018. See Docs. 26, 27, 28. The parties consented to my entering final judgment in this case. Doc. 20. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to apply the correct legal standards in weighing the opinions of non-examining state agency medical consultants S. Adamo, PsyD., and Edith King, PhD. I therefore GRANT Ms. Bosse'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 (internal quotation and citation omitted). “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. (internal quotation and citation omitted). 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).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; 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); 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. Bosse, currently age 48, earned a bachelor's degree in journalism and previously worked as a real estate broker, directory assistance operator, and administrative clerk. AR 87, 120, 128.[4] She filed an application for Disability Insurance Benefits (“DIB”) on September 17, 2014, [5] alleging disability since May 25, 2012, due to major depressive disorder, post-traumatic stress disorder (“PTSD”), anxiety disorder, personality disorder, bi-polar disorder, and recurring lumbago with sciatica. AR 223-24, 236, 239. The Social Security Administration (“SSA”) denied her claim initially and on reconsideration. AR 128-40, 141-56, 164-67. Ms. Bosse requested a hearing before an ALJ. AR 168-69. On February 17, 2017, ALJ Michael Leppala held a hearing. AR 79-127. ALJ Leppala issued his unfavorable decision on June 12, 2017. AR 15-36.

         The ALJ found that Ms. Bosse last met the insured status requirements of the SSA on June 30, 2014.[6] AR 20. At step one, the ALJ found that Ms. Bosse had not engaged in substantial, gainful activity from her alleged onset date of May 25, 2012, through her date last insured of June 30, 2014. AR 20. At step two, the ALJ found that Ms. Bosse suffered from the following severe impairments: affective disorder, anxiety disorder, PTSD, alcohol and substance abuse disorder, and personality disorder. Id. Additionally, at step two, the ALJ concluded there was no evidence that Ms. Bosse's alleged lumbago and sciatica met the durational requirements of the SSA program or created any specific functional limitations regarding her ability to perform work-related activities and therefore found those impairments non-severe. AR 20-21.

         At step three, the ALJ found that none of Ms. Bosse's impairments, alone or in combination, met or medically equaled a Listing. AR 21-22. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Bosse's RFC. AR 23-29. The ALJ found Ms. Bosse had the RFC to

perform medium work as defined in 20 C.FR 404.1567(c) except that the Claimant is able to occasionally lift and/or carry fifty pounds; frequently lift and/or carry twenty-five pounds; stand and/or walk about 6 hours in an 8-hour workday, and sit for about six hours in an eight-hour workday, all with normal breaks. She is further limited to frequently climbing ramps or stairs, never climbing ladders, ropes or scaffolds, frequently balancing, frequently stooping, frequently kneeling, frequently crouching, and frequently crawling. The Claimant is able to understand, carry out, and remember simple instructions and make commensurate work-related decisions, respond appropriately to supervision, coworkers, and work situations, up to and including two hours at a time with normal breaks throughout a normal workday. She is able to perform simple, routine, and repetitive tasks and is suitable for jobs involving work primarily with things and not people.

AR 23.

         At step four, the ALJ concluded that Ms. Bosse was unable to perform her past relevant work. AR 29. The ALJ found Ms. Bosse not disabled at step five because she could perform jobs that exist in significant numbers in the national economy-such as a kitchen helper, dining room attendant, and cleaner. AR 29-30.

         On June 13, 2017, Ms. Bosse requested review of the ALJ's unfavorable decision by the Appeals Council. AR 222. On March 23, 2018, the Appeals Council denied the request for review. AR 1-6. Ms. Bosse timely filed her appeal to this Court on May 22, 2018.[7] Doc. 1.

         IV. Ms. Bosse's Claims

         Ms. Bosse raises three arguments for reversing and remanding this case: (1) the ALJ impermissibly picked and chose among the limitations found by non-examining consultants S. Adamo, PsyD, and Edith King, PhD; (2) the ALJ failed to provide legitimate reasons for improperly weighing the findings of her treating provider Stephanie Lynch, CNP; and (3) the ALJ failed to provide legitimate reasons for rejecting the opinion of examining psychologist Nick Barneclo, PhD. See Doc. 23. For the reasons discussed below, the Court finds that the ALJ impermissibly picked and chose from the limitations noted in the opinion of the non-examining consultants, and remands on this basis. The Court does not address the other alleged errors, 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. The ALJ Erred in Failing to Either Incorporate, or Explain Why He Rejected, Moderate Limitations Noted in the Medical Opinions of S. Adamo, PsyD., and Edith King. PhD.

         Although an ALJ need not discuss every piece of evidence, the ALJ must 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).[8] “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. “[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 (“It is the ALJ's duty to give consideration to all the medical opinions in the record, ” and to “discuss the weight he [or she] assigns to such opinions.” (citing 20 C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii)).

         In 2007, the Tenth Circuit Court of Appeals decided two cases that control here. First, in Haga, the court 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. Later in 2007, in Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007), the Tenth Circuit expressly applied Haga and its reasoning to the opinions of non-examining physicians.

         Ms. Bosse argues that the ALJ impermissibly “picked and chose” from among the moderate mental limitations in the opinions of non-examining consultant psychologists Drs. Adamo and King.[9] Doc. 23 at 14-18. Specifically, Ms. Bosse argues that the ALJ erred by giving these opinions “great weight, ” while ignoring some of the moderate limitations these psychologists identified in their Mental Residual Functional Capacity Assessment (“MRFCA”) without explanation. Id. The Commissioner argues that the questions and ratings contained in the MRFCA are merely a helpful tool in “determining [] [an] individual's ability to perform sustained work activities, ” but is not the “actual” MRFCA, which is “recorded in the narrative discussion” of Section III.[10] Doc. 26 at 4 (internal quotations omitted). The Commissioner also argues that the ALJ “correctly looked” to the narrative in Section III, and that these assessments aligned with the ...

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