United States District Court, D. New Mexico
CINDY M. BROOKSHIRE, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER 
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff Cindy M.
Brookshire's (“Ms. Brookshire”) Motion to
Reverse and Remand for Rehearing with Supporting Memorandum
(Doc. 27) (“Motion”), filed August 8, 2019,
seeking review of the unfavorable decision of Defendant
Andrew Saul, Commissioner of the Social Security
Administration (“Commissioner”), on Ms.
Brookshire's claim for Title II disability insurance
benefits under 42 U.S.C. §§ 405(g) and 1383(c)(3).
The Commissioner filed a response in opposition to the Motion
on October 8, 2019, (Doc. 29), and Ms. Brookshire filed a
reply in support of the Motion on October 15, 2019. (Doc.
30.) Having meticulously reviewed the entire record and the
applicable law and being otherwise fully advised in the
premises, the Court FINDS that Ms. Brookshire's Motion is
well taken and should be GRANTED.
Brookshire is a 60-year-old, college-educated woman who filed
for disability insurance benefits on June 30, 2015, alleging
a disability onset date of March 1, 2011. (Administrative
Record (“AR”) 041, 159.) From 1999 through
February 2011, she worked as a medical records clerk at the
Center for Orthopedics. (AR 042-44, 171-73.) She stopped
working in February 2011 after her position was
“eliminated, ” although Ms. Brookshire suspects
that her employer eliminated her position to avoid firing her
outright. (AR 043.) According to Ms. Brookshire, she
“frightened people” that she worked with by
frequently talking out loud to herself and saying
“outrageous” and “inappropriate”
things. (AR 046-47.)
Brookshire first started receiving “mental health
services” at age nineteen after suffering
“several losses.” (AR 276.) In the Disability
Report she completed when she applied for benefits, Ms.
Brookshire reported that beginning in 1997, she received
treatment for “Depression/Anxiety Situational Bi-polar
PTSD [sic]” from various providers while living in
Connecticut. (See AR 195-97.) Upon relocating
to New Mexico in 2013, Ms. Brookshire established care at Rio
Rancho Medical Center, where she received refills for the
different medications she was on at the time, including
Celexa (citalopram), which was used to treat her dysthymic
disorder (depression). (AR 287-289.)
April 2015, Ms. Brookshire began treating with psychiatrist
Yvonne Hall, M.D. (AR 392-94.) Dr. Hall diagnosed Ms.
Brookshire with posttraumatic stress disorder
(“PTSD”), depressive disorder, and autism
disorder, noting that Ms. Brookshire “is struggling
with interpersonal deficits” and that the “course
is expected to be chronic because of the patient's
autistic component.” (AR 393-94.) She continued Ms.
Brookshire on her then-current treatment of citalopram for
depression and PTSD (AR 394) and later augmented and modified
Ms. Brookshire's medication regimen to include prazosin
to treat Ms. Brookshire's nightmares (AR 390),
aripiprazole to treat her increased depression, which was
later switched to Latuda and then lamotrigine (AR 360-61,
367-68, 371, 381), and lorazepam for anxiety (AR 366, 371).
Dr. Hall treated Ms. Brookshire on a monthly basis from April
2015 through at least March 2017, titrating her medications
throughout that time depending on whether Ms. Brookshire
reported improvement in her condition or increased symptoms.
(AR 354, 355-94.) As early as September 2015, Dr. Hall
encouraged Ms. Brookshire to consider seeing a
psychotherapist, which Ms. Brookshire declined at that time
because she felt it would be “overwhelming to try to
talk to one.” (AR 387-88.) However, Ms. Brookshire
eventually agreed to see a psychotherapist and established
with Elizabeth Penland, Ph.D., in December 2016. (AR 357,
Brookshire saw Dr. Penland eleven times between December 2016
and April 2017, or approximately every week. (AR 401-422.) In
March 2017, Dr. Penland opined that Ms. Brookshire suffers
from social anxiety disorder, not Asperger's Syndrome or
autism. (AR 406, 407.) In April 2017, Dr. Penland diagnosed
Ms. Brookshire with (1) dysthymic disorder (seasonal
component and pervasive depressive disorder), (2) social
anxiety disorder, (3) PTSD, (4) other specified personality
disorder (mixed personality features, schizoid, avoidant,
dependent personality features), and (5) specific learning
disability (dyslexia) by history. (AR 402.) Also in April
2017, Dr. Penland completed a Medical Source Statement of
Ability to do Work-Related Activities (Mental)
(“medical source statement”) (AR 423-27) in which
she indicated her opinion that Ms. Brookshire has either no
or mild limitations in most areas of work-related functioning
but moderate and marked limitations as follows: moderate
limitations in the ability to (1) maintain attention and
concentration for extended periods, (2) perform activities
within a schedule, maintain regular attendance, and be
punctual within customary tolerances, and (3) get along with
co-worker or peers without unduly distracting them or
exhibiting behavioral extremes; marked limitations in the
ability to (1) interact appropriately with the general public
or customers, and (2) accept instructions and respond
appropriately to criticism from supervisors. (AR 424-25.) At
the end of her medical source statement where asked to
identify the “[d]ate of onset of the foregoing
limitations[, ]” Dr. Penland indicated: “Probably
going back to childhood. I have not known this patient for
very long. I just met her in December of 2016.” (AR
found that prior to her date last insured of December 31,
2016, Ms. Brookshire had the following severe impairments:
“Autistic Disorders; Anxiety Disorders; and Affective
Disorders[.]” (AR 024.) Finding that none of Ms.
Brookshire's severe impairments, alone or in combination,
met a Listing, the ALJ proceeded to assess Ms.
Brookshire's residual functional capacity
(“RFC”) to work. (AR 024-28.) The ALJ found that
Ms. Brookshire has the RFC to perform a full range of work at
all exertional levels but with the following non-exertional
[Ms. Brookshire] can understand, carry out, and remember
simple 1 to 3 step instructions, and make commensurate
work-related decisions. She can respond appropriately to
supervision, coworkers, and work situations. She can deal
with routine changes in work setting. She can maintain
concentration, persistence, and pace for up to and including
two hours at a time, with normal breaks throughout a normal
workday. She is limited to occasional superficial interaction
with the general public.
(AR 026.) In discussing the medical opinion evidence
vis-à-vis the RFC he assessed, the ALJ accorded
“great weight” to the opinion of non-examining
state agency psychologists William Farrell, Ph.D., and Joan
Holloway, Ph.D., that Ms. Brookshire “retains the
capacity to understand simple, one to three step instructions
during an eight-hour workday.” (AR 027.) He did so
because he found that Drs. Farrell and Holloway “had an
overview of the medical evidence, [are] familiar with Social
Security disability standards, and [their] opinion[s are]
well-explained.” (Id.) While recognizing Dr.
Penland as Ms. Brookshire's “treating
psychologist[, ]” the ALJ accorded Dr. Penland's
opinions only “some weight.” (Id.) The
ALJ explained that Dr. Penland's opinions- specifically
as to Ms. Brookshire's areas of marked limitation-were
not entitled to “controlling or even great
weight” because Dr. Penland had only been treating Ms.
Brookshire since December 2016, which the ALJ concluded
“is not long enough to establish a treatment history
that would” entitle Dr. Penland's opinions to
greater weight. (Id.) The other reason the ALJ gave
for according only “some weight” to Dr.
Penland's opinions was that “most of her treatment
notes are not clear.” (Id.) Other than noting
that Dr. Penland's treatment notes “mention [Ms.
Brookshire's] family history, depression and
post-traumatic stress disorder” and that Dr. Penland
“does not believe that [Ms. Brookshire] had either
Asperger's or Autism[, ]” the ALJ's decision
contains no further discussion of the evidence supplied by
Dr. Penland's records and medical source statement.
the ALJ found that Ms. Brookshire was unable to perform past
relevant work, he concluded that given her age, education,
work experience, and the RFC he assessed, she would be able
to perform other jobs that exist in significant numbers in
the national economy. (AR 028-29.) He therefore found that
Ms. Brookshire was “not disabled.” (AR 029.) Ms.
Brookshire sought review by the Appeals Council, which denied
her request. (AR 001-6, 157-58.) Ms. Brookshire then appealed
to this Court. (Doc. 1.)
Standard of Review
review of the Commissioner's denial of disability
benefits is limited to whether the final decision is
supported by substantial evidence and whether the
Commissioner applied the correct legal standards to evaluate
the evidence. 42 U.S.C. § 405(g); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). In
making these determinations, the Court must meticulously
examine 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). In other words, the Court does not
reexamine the issues de novo. Sisco v. U.S. Dep't of
Health & Human Servs., 10 F.3d 739, 741 (10th Cir.
1993). The Court will not disturb the Commissioner's
final decision if it correctly applies legal standards and is
based on substantial evidence in the record.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004) (quotation marks omitted). Substantial evidence is
“more than a scintilla, but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007). A decision “is not based on
substantial evidence if it is overwhelmed by other evidence
in the record[, ]” Langley, 373 F.3d at 1118
(quotation marks omitted), or “constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d
1371, 1374 (10th Cir. 1992). The Court's examination of
the record as a whole must include ...