United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Casey Ray
Vienna’s Motion to Reverse and Remand for a Rehearing
with Supportive Memorandum (Doc. 15), which was fully briefed
on April 1, 2019. 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”) impermissibly
“picked and chose” among the moderate mental
limitations noted by non-examining state agency psychologist
Dr. Sheri Simon. I therefore GRANT Mr. Vienna’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. §§
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
Background and Procedural History
Vienna was born in 1991, graduated from high school in 2009,
and worked as a grocery store sacker, landscaper, and
construction supervisor. AR 66, 221, 267. Mr. Vienna filed
an application for Disability Insurance Benefits
(“DIB”) and an application for Supplemental
Security Income (“SSI”) on September 29, 2014,
alleging disability since August 1, 2014 due to a Tarlov
cyst, displaced lumbar intervertebral disc, degenerative
arthritis, lumbosacral radiculopathy, lumbar facet
arthropathy, sacroiliitis, disk herniation, a MCL
(“medial collateral ligament”) knee injury,
lumbar spinal stenosis, and lumbar spasm. AR 219– 29,
266. The Social Security Administration (“SSA”)
denied his claims initially on May 11, 2015. AR 145–51.
The SSA denied his claims on reconsideration on October 7,
2015. AR 156– 61. Mr. Vienna requested a hearing before
an ALJ. AR 163-64. On March 2, 2017, ALJ Raul C.
Pardo held a hearing. AR 31–74. ALJ Pardo issued his
unfavorable decision on June 22, 2017. AR 9–30.
found that Mr. Vienna met the insured status requirements of
the Social Security Act through June 30, 2019. AR 14. At step
one, the ALJ found that Mr. Vienna had not engaged in
substantial, gainful activity since August 1, 2014, his
alleged onset date. Id. At step two, the ALJ found
that Mr. Vienna’s degenerative disc disease status post
surgery, depression, right knee damage, and obesity were
severe impairments. Id. The ALJ found that Mr.
Vienna’s hypertension was a non-severe impairment.
Id. At step three, the ALJ found that none of Mr.
Vienna’s impairments, alone or in combination, met or
medically equaled a Listing. AR 15–16. Because the ALJ
found that none of the impairments met a Listing, the ALJ
assessed Mr. Vienna’s RFC. AR 16–22. The ALJ
found Mr. Vienna had the RFC to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except the claimant can
climb ramps and stairs occasionally; never climb ladders,
ropes, or scaffolds; and stoop occasionally. He is limited to
performing simple, routine tasks and only occasionally
responding appropriately to the public. The claimant’s
time off task can be accommodated by normal breaks. AR 16-17.
four, the ALJ found that Mr. Vienna could not perform any of
his past relevant work. AR 22–23. The ALJ found Mr.
Vienna not disabled at step five because he could perform
jobs that exist in significant numbers in the national
economy, such as warehouse checker and router dispatcher. AR
23–24. On July 27, 2017, Mr. Vienna requested that the
Appeals Council review the ALJ’s unfavorable decision.
AR 218. On June 22, 2018, the Appeals Council denied the
request for review. AR 1–6. Mr. Vienna timely filed his
appeal to this Court on August 16, 2018. Doc.
Mr. Vienna’s Claims
Vienna raises three arguments for reversing and remanding
this case: (1) the ALJ impermissibly “picked and
chose” among the moderate mental limitations noted by
non-examining state agency psychologist Dr. Sheri Simon; (2)
the ALJ’s RFC is flawed because it fails to include a
function-by-function assessment of Mr. Vienna’s
work-related abilities as required by SSR 96-8p; and (3) the
ALJ’s RFC is not supported by substantial evidence
because the ALJ failed to adequately consider his statements
about pain. See Doc. 15 at 2, 14-24.
the Court remands based on the ALJ’s failure to
properly analyze the opinion of Dr. Simon, 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).
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). 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. “[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.”).
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.
The ALJ Erred by Failing to Either Incorporate, or Explain
Why He Rejected, Moderate Mental Limitations
Noted in the Medical Opinion of Dr. Shari Simon.
Vienna argues that the ALJ failed to account for all the
moderate limitations in non-examining state agency consultant
Dr. Simon’s Mental Residual Functional Capacity
Assessment (“MRFCA”). Doc. 15 at 14–19.
Specifically, he argues that the ALJ failed to account for
the moderate limitations Dr. Simon found in his abilities
to maintain attention and concentration for extended periods
of time; perform activities within a schedule, maintain
regular attendance, and be punctual within customary
tolerance; and complete a normal workday and workweek without
interruptions from psychological based symptoms and to
perform at a consistent pace without unreasonable number and
length of rest periods.
Id. at 16. The Commissioner argues that the
ALJ’s RFC assessment is consistent with Dr.
Section III findings,  and that the ALJ was not required to
discuss each of the moderate limitations in Section I of Dr.
Simon’s opinion. Doc. 19 at 12–13. Next, the
Commissioner argues that both the ALJ’s RFC and Dr.
Simon’s Section III findings “adequately captured
the moderate limitations noted in Section I.”
Id. at 14. Alternatively, the Commissioner argues
that there is no error because the ALJ only gave Dr.
Simon’s opinion partial weight, after “noting
that the opinion was internally inconsistent.”
Id. at 16–17. The Court finds the
Commissioner’s arguments unpersuasive, and ...