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Vienna v. Saul

United States District Court, D. New Mexico

September 26, 2019

Y RAY VIENNA, Plaintiff,
v.
ANDREW M. SAUL, [1] 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 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.

         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

          Mr. 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.[4] 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.[5] 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.

         The ALJ 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.

         At step 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. 1.[6]

         IV. Mr. Vienna’s Claims

         Mr. 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.

         Because 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).

         V. Analysis

         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). 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).[7] “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.”).

         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.

         A. 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.

         Mr. 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.

         Simon’s Section III findings, [8] 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 ...


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