United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge
MATTER comes before the Court on plaintiff Yvette
Montoya's Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 21), which was fully briefed
on June 13, 2019. See Docs. 24, 27, 28. 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's (“ALJ”) decision
to give treating physician Dr. Santos's opinion
“limited weight” is not supported by substantial
evidence. I therefore GRANT Ms. Montoya'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. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1261. 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 then 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.
Background and Procedural History
Montoya was born in 1958 and graduated from high school in
1976. AR 230, 235.She worked for many years in the
electronics assembly industry. AR 236, 652-58, 668-77. Ms.
Montoya filed applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) on February 19, 2013, alleging disability
since August 26, 2012 due to the following impairments:
numbness in her right back, right buttock, right calf and
right toes; injuries to her lower and upper back and right
buttocks, right hand weakness and pain, right-sided carpal
tunnel syndrome, right finger pain, trigger finger on the
right hand, pinched nerve in the right shoulder; inability to
sit, stand, or walk for more than 10 minutes at a time;
inability to carry objects weighing more than 10 pounds, and
inability to drive without pain. AR 187-99, 234. The Social
Security Administration (“SSA”) denied her claims
initially on August 9, 2013. AR 124-28. The SSA denied her
claims on reconsideration on October 28, 2013. AR 131-35. Ms.
Montoya requested a hearing before an ALJ. AR 136-37. On
March 19, 2015, ALJ Eric Weiss held a hearing. AR 26-75. ALJ
Weiss issued his unfavorable decision on April 29, 2015. AR
9-25. Ms. Montoya requested review of the ALJ's
unfavorable decision by the Appeals Council. AR 5-8. On
September 1, 2016, the Appeals Council denied the request for
review. AR 1-4.
Montoya timely filed her first appeal to this Court on
November 4, 2016. AR 706- 07 (Montoya v. Berryhill,
No. 16cv1214 KBM, Doc. 1 (D.N.M. Nov. 4, 2016)). On September
22, 2017, the Commissioner moved for a remand pursuant to
sentence four of 42 U.S.C. § 405(g), which the Court
granted. No. 16cv1214 KBM, Docs. 26, 27. On remand, the
Appeals Council vacated the final decision of the
Commissioner and remanded to the ALJ for “[f]urther
evaluation of the opinion of treating source James Santos,
M.D.” AR 763.
Specifically, the Administrative Law Judge stated that Dr.
Santos's opinion was “less persuasive” than
the opinions of consultative examiner Raul Young-Rodriguez,
M.D. and the State agency medical consultants because Dr.
Santos's opinion “contrasts sharply” with the
other evidence of record and the other medical opinions
(Decision, page 8). However, the decision does not reflect
consideration of significant countervailing evidence in Dr.
Santos's treatment records contained at Exhibit 10F,
including a July 2014 cervical spine MRI showing moderate
disc degeneration at ¶ 5-6 with loss of disc height and
a right paracentral and interforaminal disc extrusion that
results in moderate right foraminal stenosis, with a central
annular tear at this level, and an EMG/NCS study from
February 2013 that showed mild right median mononeuropathy at
the wrist and demyelinating features affecting the sensory
fibers (Exhibit 10F, pages 15 and 17). Consultative examiner
Dr. Young-Rodriguez and the State agency medical consultants
did not review the treatment records from Dr. Santos; their
opinions were provided prior to the submission of Dr.
Santos's treatment records and prior to the
claimant's July 2014 cervical spine MRI described above.
In addition, in evaluating the opinion of Dr. Santos, the
hearing decision does not address those factors discussed at
20 CFR 404.1527(c) and 416.927(c) for evaluating opinion
evidence nor does it contain any specific references to the
evidence of record to support the weight assigned to Dr.
Santos's opinion. Thus, further evaluation, pursuant to
20 CFR 404.1527 and 416.927, is warranted.
remand from the Appeals Council, on April 12, 2018, ALJ Weiss
held a second hearing. AR 648-82. On May 4, 2018, the ALJ
issued a partially favorable decision-finding Ms. Montoya
disabled from June 17, 2015 forward, but not disabled prior
to that date. AR 616-47.
found that Ms. Montoya met the insured requirements of the
Social Security Act through December 31, 2016. AR 624. At
step one, the ALJ found that Ms. Montoya had not engaged in
substantial, gainful activity since August 21, 2012, her
alleged onset date. Id. At step two, the ALJ found
that Ms. Montoya suffered from the following severe
impairments: “[o]steoarthrosis; degenerative disc
disease; cervical spondylosis; cervicalgia, cervical
radiculopathy; carpal tunnel syndrome, facet syndrome;
lumbago; right trigger finger, thoracic outlet syndrome; and
right AC joint arthropathy.” Id. Beginning on
June 17, 2015, the date the ALJ found Ms. Montoya disabled,
the ALJ found that, in addition to all the above severe
impairments, Ms. Montoya also had “left cubital tunnel
syndrome status post open ulnar nerve decompression; and left
shoulder osteoarthritis status post left shoulder
three, the ALJ found that none of Ms. Montoya's
impairments, alone or in combination, met or medically
equaled a Listing. AR 625-27. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Ms.
Montoya's RFCs. AR 627-37. Prior to June 17, 2015, the
ALJ found Ms. Montoya had the RFC to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant could lift, carry, push, or
pull 20 pounds occasionally and 10 pounds frequently. She was
able to stand or walk for six hours per eight-hour day and
sit for six hours per eight-hour day with normally scheduled
breaks. She could occasionally climb ramps and stairs, but
never climb ladders, ropes, and scaffolds. The claimant was
able to occasionally balance, stoop, crouch, and kneel, but
could never crawl. She was able to frequently reach, handle,
and finger with her upper extremities. She had to avoid more
than occasional exposure to unprotected heights.
AR 627. Beginning on June 17, 2015, the ALJ found Ms. Montoya
had the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except she can lift up to 10 pounds occasionally.
She can stand or walk for two hours per eight-hour day and
sit for six hours per eight-hour day with normally scheduled
breaks. The claimant is able to occasionally climb ramps and
stairs, but never climb ladders, ropes, and scaffolds. She is
able to occasionally balance, stoop, crouch, and kneel, but
never crawl. The claimant can occasionally reach, handle, and
finger with her bilateral upper extremities. She must avoid
exposure to unprotected heights, dangerous moving machinery,
and pulmonary irritants such as dust, fumes, odors, and
four, the ALJ concluded that, prior to June 17, 2015, Ms.
Montoya was capable of performing her past relevant work as
an “electronics assembler” and as a
“production expeditor” as that work is generally
performed. AR 637-38. Because she could perform her past
relevant work, the ALJ concluded that she was not disabled
prior to June 17, 2015. AR 638. Beginning on June 17, 2015,
the ALJ found that Ms. Montoya could not perform her past
relevant work. Id. At step five, for the period
beginning on June 17, 2015, the ALJ found that considering
Ms. Montoya's age, education, work experience and RFC,
there were no jobs that exist in significant numbers that Ms.
Montoya could perform. Id. The ALJ therefore found
Ms. Montoya disabled beginning on June 17, 2015. Id.
Ms. Montoya timely filed her appeal to this Court on August
31, 2018. Doc. 1.
Ms. Montoya's Claims
Montoya raises two arguments for reversing and remanding this
case: (1) the ALJ erred in weighing the opinion of treating
physician Dr. James Santos; (2) the RFC is not supported by
substantial evidence because the ALJ failed to account for
Ms. Montoya's subjective allegations of pain and other
symptoms. See Doc. 21. Because I remand based on the
ALJ's failure to properly weigh the opinion of Dr.
Santos, I do not address the other alleged error, which
“may be affected the ALJ's treatment of this case
on remand.” Watkins v. Barnhart, 350 F.3d
1297, 1299 (10th Cir. 2003).
Summary of Dr. Santos's Treatment Records
James Santos, a doctor board-certified in physical medicine
and rehabilitation, treated Ms. Montoya more than twenty times
between August 2013 and May 2015. See AR 380-83,
391-92, 405-09, 432-43, 447-50, 457-60, 465-68, 479-88,
495-97, 502-03, 509-10, 522-23, 536-37, 590-91, 600-04,
606-08, 612-15, 1162-63.
August 23, 2013, Ms. Montoya saw Dr. Santos for an initial
exam. AR 380-83. Ms. Montoya reported low back pain, present
for more than one year, which resulted in the inability to
stand for more than 30 minutes at a time and a pain level of
7 out of 10, with pain made worse by activities. AR 380. Ms.
Montoya also reported “neck pain, joint pain, joint
swelling, back pain, ” and a weak right hand and arm
that became sore with use. Id. On lumbar exam, Dr.
Santos noted that Ms. Montoya had “[t]enderness to
palpation” of the “right buttocks” but no
other significant findings. AR 382. Dr. Santos reviewed an
MRI done by High Resolution in September of 2012 and noted
that it showed the following:
Multileval moderate disc degeneration from L2-3 through
L5-S1. There is a left paracentral disc protrusion with an
annular tear at ¶ 5-S1. There is a far left disc
protrusion an[d] annular tear noted at ¶ 4-5. There is a
small left paracentral disc protrusion at ¶ 2-3 with
annular tear. There is moderate facet joint arthropathy L4-5
Id. Dr. Santos diagnosed Ms. Montoya with
“persistent axial lumbar pain in the setting of
multilevel disc degeneration with annular tears at ¶
2-3, L4-5, and L5-S1 and facet joint arthropathy most
pronounced at ¶ 4-5.” AR 383. Dr. Santos opined
that the “[e]tiologies of the axial pain could include:
discogenic pain, facet syndrome, or sacroiliac joint
dysfunction.” Id. Dr. Santos noted that Ms.
Montoya reported that she received “about a 90%
reduction in her pain levels following physical therapy, but
her residual pain still affects her quality of life”
and limits her functional activities. AR 383, 405. Ms. Montoya
“agreed to undergo a diagnostic and therapeutic facet joint
injections [left] laterally at ¶ 4-5 and L5-S1.”
September 9, 2013, Dr. Santos performed a diagnostic and
therapeutic right L4-5 and left L4-5 facet block. AR 391-92.
On November 14, 2013, Ms. Montoya reported a 60% reduction in
her low back pain following the facet joint injections. AR
495. She reported a current pain level of 6 out of 10,
continued numbness, pain with activities, radiating pain, and
night pain. Id. She reported “constant
pain” and pain when “trying to do
anything.” Id. On lumbar exam, Dr. Santos
found a limited range of motion due to pain, and decreased
extension. AR 496. Dr. Santos assessed Ms. Montoya with
“moderately improved, persistent axial lumbar pain in
the setting of multilevel disc degeneration and annular tears
and facet joint arthropathy, most pronounced at ¶
4-5.” AR 497. He scheduled Ms. Montoya for repeat
bilateral L4-5 facet joint injections. Id.
November 25, 2013, Dr. Santos performed diagnostic and
therapeutic bilateral L4-5 facet joint injections AR 502-03.
On January 7, 2014, Ms. Montoya reported a 60% pain reduction
in pain following the facet joint injections but reported a
current pain level of 8 out of 10, and that she continued to
have pain with activities, radiating pain, and night pain. AR
486. She reported that “the injection only helps when
she isn't doing anything.” Id. Dr. Santos
scheduled Ms. Montoya for a medial branch block of the L4-5
facet joints bilaterally. AR 488.
January 27, 2014, Dr. Santos performed a diagnostic right
L4-5 and left L4-5 facet block via injection of right L3,
left L3, right L4 and left L4 medial branch nerves. AR 509.
On February 19, 2014, Ms. Montoya reported a 20 to 30%
reduction in pain for the six hours following the injection,
with some relief from pain lasting two days after the facet
block injection. AR 483. She reported a current pain level of
7 out of 10. Id. Dr. Santos assessed Ms. Montoya
with “transiently improved axial lumbar pain after her
intra-articular steroid injections within the facet joints in
the setting of spondylosis.” AR 485. Because Ms.
Montoya had an “atypical response” to the facet
block injection, Dr. Santos decided to repeat the procedure
and “add one level.” Id. Dr. Santos
scheduled Ms. Montoya for a “medial branch block on the
L4-5 and L5-S1 facet joints” that would
“effectively block the bilateral L3 and L4 medial
branches and bilateral L4 dorsal primary rami.”
February 24, 2014, Dr. Santos performed a diagnostic right
L4-5, left L4-5, right L5-S1, and left L5-S1 facet block via
injection of the right L3, left L3, right L4 and left L4
medial branch nerves and right L5 and left L5 dorsal rami. AR
February 27, 2014, Ms. Montoya reported pain localized
bilaterally along the upper and inner parascapular region. AR
479. On physical exam, Dr. Santos noted pain/tenderness when
he palpated the trigger points of the bilateral trapezius,
levator scapula, and rhomboids. AR 482. Dr. Santos ordered
thoracic x-rays, which showed mild scoliosis. Id.
Dr. Santos diagnosed Ms. Montoya with “chronic upper
thoracic axial pain with clinical evidence of extensive
myofascial spasms.” Id.
March 25, 2014, Ms. Montoya was seen for follow up after the
February 24, 2014 facet injections. AR 465. Ms. Montoya
reported a pain level of 7 out of 10 and pain with
activities, with symptoms unchanged from her previous visit.
Id. She reported an 80 to 90% pain reduction of her
lower back pain for approximately 6 hours after the facet
block injections, but also reported some numbness and
tingling in her legs after the injections. AR 465, 520. Dr.
Santos noted that Ms. Montoya had “chronic paresthesias
in her right leg.” AR 465. Dr. Santos assessed Ms.
Montoya with “axial lumbar pain secondary to facet
syndrome at ¶ 4-5 and L5-S1 in the setting of
spondylosis.” AR 467. Dr. Santos noted that Ms. Montoya
had “a positive response to the last medial branch
block, but she is concerned that the radiofrequency right
rhizotomy would cause leg symptoms. After a long
discussion with the patient, we have agreed to have her
return for a repeat set of medial branch blocks and determine
whether she experiences the same symptoms in her legs.”
March 31, 2014, Dr. Santos performed a diagnostic right L4-5,
left L4-5, right L5-S1 and left L5-S1 facet block injection
via injection of the right L3, left L3, right L4 and left L4
medial branch nerves and right L5 and left L5 dorsal rami. AR
536. On April 16, 2014, Ms. Montoya reported a pain level of
8 out of 10, pain with activities, and symptoms unchanged
since her last visit. AR 447. Ms. Montoya reported 100%
relief of her back pain for the 6 hours that she recorded her
pain after the March 31, 2014 facet block injections.
Id. Dr. Santos assessed her with “axial lumbar
pain secondary to facet syndrome at ¶ 4-5 and L5-S1 in
the setting of spondylosis.” AR 450. Noting that Ms.
Montoya had two positive responses to medial branch blocks,
Dr. Santos scheduled Ms. Montoya for bilateral radiofrequency
rhizotomy at ¶ 3, L4, and L5. Id.
April 29, 2014 Ms. Montoya reported a pain level of 8 out of
10, and pain with activities. AR 441. She reported that her
pain had worsened since her last visit. Id. Ms.
Montoya complained of upper thoracic and scapular pain.
Id. Dr. Santos assessed Ms. Montoya with
“chronic upper thoracic axial pain with clinical
evidence of myofascial spasms, ” administered trigger