WILLIAM J. MARTÍNEZ, District Judge.
This is a social security benefits appeal brought under 42 U.S.C. § 405(g). Plaintiff Lisa A. Reyes ("Plaintiff") challenges the final decision of Defendant, the Commissioner of Social Security ("Commissioner"), denying her application for disability and social security benefits. The denial was affirmed by an administrative law judge ("ALJ"), who ruled Plaintiff was not disabled within the meaning of the Social Security Act ("Act"). This appeal followed.
For the reasons set forth below, the ALJ's denial of benefits is reversed and the case is remanded to the Commissioner for rehearing.
Plaintiff filed a claim for disability benefits on January 27, 2009 (Admin. Record ("R.") at 12) Plaintiff alleged a disability onset date of February 1, 1992 due to "bipolar, PTSD, and anxiety". (Id.) The claim was denied initially on April 9, 2009. (Id.) Plaintiff then filed a written request for a hearing on April 27, 2009. (Id.) A hearing was held on October 12, 2010, which was continued through to January 31, 2011 due to last minute submissions of evidence by Plaintiff. (Id.) The hearing before ALJ Wendland resulted in an unfavorable decision for Plaintiff dated March, 2011. (Id.)
In 2001, Plaintiff was involved in a tragic motor vehicle accident when her car was rear-ended at a high rate of speed, resulting in the death of her five year-old son.
On December 12, 2008, Plaintiff was seen by Denver Health Medical Center ("Denver Health") for a mental health assessment. (R. 271.) Plaintiff reported that she was experiencing flashbacks, nightmares, insomnia, racing thoughts, and avoiding things that reminded her of her son's death. (Id.) Plaintiff reported significant problems with appetite, sleep, memory, and attention as well as suicidal ideation and a suicidal attempt. (Id.) On December 18, 2008, while being evaluated at Denver Health, Plaintiff further reported that she was experiencing "new anxiety and panic attacks" which had were "worse since the second motor vehicle accident." (R. 268.) She also reported that she experienced flashbacks, as well as reporting problems in memory and concentration. (R. 269.)
During the course of 2009, Plaintiff was further seen by Denver Health, where she was treated for, inter alia, depression and PTSD. (R. 379-409.) Her medication included Risperdal (.25 mg twice a day) and lithium (300 mg. twice a day). The effects of Plaintiff's medication had mixed results (and side-effects)—including continued mood swings, racing thoughts, anxiety and weight gain.
During the course of 2010, Plaintiff continued to be seen by Denver Health, and on March 9, 2010, Plaintiff presented at the Psychiatric Emergency Services of same. Plaintiff stated that she had a plan to commit suicide by overdosing on prescription medications, which she had not been taking for the last 2-3 weeks because she thought they were no longer helping her. (R. 299.)
On November, 18, 2010, Joseph Pachta, BA (Plaintiff's primary therapist) evaluated Plaintiff's psychological condition.
On December 1, 2010, Plaintiff was again seen by Mr. Pachta, where treatment issues and plans were made. Mr. Pachta's notes reflect detailed psychotheray steps that Plaintiff was taking that shed light on her depression and PTSD symptoms. (R. 409-476.) In particular, at R. 436, a crisis plan was put in place where Plaintiff pledged as follows:
On December 17, 2010, Plaintiff was seen by Dr. McNamee for a 40 minute session. (R. 426) She reported that she had stopped taking lithium because of tremors and weight gain, although she was taking all her other medications. (Id.) Dr. McNamee opined that Ms. Reyes' symptoms were consistent with PTSD with anxiety resulting from the PTSD. (Id.)
On the March 11, 2011, ALJ Wendland issued a written decision in accordance with the Commissioner's five-step sequential evaluation process.
The Court reviews the Commissioner's decision on Plaintiff's entitlement to disability benefits to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Although a district court will "not reweigh the evidence or retry the case," a district court "meticulously examines the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42 U.S.C. § 405(g). Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005).
As the Tenth Circuit observed in Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to "fully and fairly develop the record as to material issues." Id. This duty exists even when the claimant is represented by counsel. Id. at 480.
The Appeals Council denied Plaintiff's request for review on the ALJ's decision. (ECF No. 7-2.) Plaintiff filed this action seeking review of that decision. On appeal, Plaintiff raises two arguments: (1) the ALJ's RFC findings are not based on substantial evidence, (2) the ALJ's credibility findings are conclusory and fail to properly assess the credibility of Plaintiff's testimony. (ECF No. 14 at 4.) Related to the second argument is the contention that the ALJ has erred because paragraphs in the decision reflect `boilerplate' language that fails to link the conclusory statement to relevant evidence.
Because the Court finds that the ALJ's RFC was not supported by substantial evidence, and failed to fully and fairly develop the record, the Court finds that such error requires remand. Since similar deficiencies meant that the ALJ did not fully examine Plaintiff's testimony, the Court also finds that the ALJ credibility findings are deficient and require further consideration.
Plaintiff first challenges the ALJ's RFC determination on grounds that the ALJ's findings fail to meet the substantiality test. (ECF no. 13-1 at 23.)
The RFC assessment is made by the ALJ "based on all the relevant evidence in [the claimant's] case record." 20 C.F.R. § 404.1545(a)(1). The RFC is an assessment of the most a claimant can do despite his or her limitations. Id. Examples of the types of evidence required to be considered in making an RFC assessment are the claimant's medical history, medical signs and laboratory findings, and medical source statements. Soc. Sec. Ruling (SSR) 96-8p (July 2, 1996). An ALJ must make specific RFC findings based on all of the relevant evidence in the case record. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996):
See, SSR 96-8p. The ALJ's findings regarding the RFC must, therefore, be supported by substantial evidence and based on all of the relevant evidence. See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999); Winfrey, 92 F.3d at 1023.
Here, Plaintiff contends that the ALJ erred in relying exclusively on the Mental Residual Functional Capacity Assessment and the Psychiatric Review Technique form ("Reports")—both completed by Ellen Ryan, M.D. (a State Agency physician)—to determine the Plaintiff's RFC. (R. 233-237) For the reasons that follow, and based on review of all the relevant evidence in the record, the Court finds deficiencies in the ALJ's RFC determination. See Winfrey v. Chater, 92 F.3d 1017, 1023. The reasons are two-fold.
First, Dr. Ryan's Reports were completed on April 9, 2009. (R. 249) Notwithstanding the fact that the Reports were written well before the ALJ hearing, it is apparent from the decision that the ALJ afforded Dr. Ryan much weight in making the determination against Plaintiff's disability claim—a determination that was made on March 4, 2011. (ECF No. 7-2 at 4.) Indeed, in making the medical impairment findings, the ALJ makes no express reference (by name) to any other doctor or therapist that treated Plaintiff's symptoms. This is deficient because even upon a cursory review of the record, it is clear that there is plentiful evidence that addresses Plaintiff's medical history and medical source statements; all of which would be relevant to an assessment of whether there is substantial evidence to support the ALJ's findings (or not). (R. 279-584); see Winfrey, 92 F.3d at 1023.
Accordingly, because the substantial evidence test has not been properly met—because the ALJ did not consider all relevant evidence from the entire record—the Court finds that remand is required to resolve such deficiencies.
Second, and related to the first reason, the Court finds that the ALJ has failed to fully and fairly develop the record. Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993) (stating that the duty to "develop the record pertains even if the claimant is represented by counsel.") Other than conclusory statements made by the ALJ, there is nothing in the record that demonstrates meaningful consideration of all the evidence post April-2009. For example, there is no meaningful consideration of evidence supplied by Dr. McNamee and Mr. Pachta. This deficiency is puzzling given the detailed psychological assessment that Mr. Pachta provides in the record. The psychological assessment specifically examines Plaintiff's (1) depression, (2) cognitive abilities, and (3) anxiety levels. (R. 408-11.) These tests have been addressed earlier in the Order on page 3. The assessment also examined how each of these factors impact Plaintiff's daily functioning. (Id.)
Accordingly, because the ALJ has erred in not fully developing the record, the Court finds that the matter warrants remand for further consideration.
Plaintiff next attacks the ALJ's credibility findings as being conclusory. The Court agrees. The ALJ states:
(ECF No. 7-2 at 16)
Notwithstanding the ALJ's reference to the RFC, conclusory paragraphs of this kind have been heavily criticized by the courts. For example, in Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (Posner, J.) the court called the above language (or variants thereof) as constituting "meaningless boilerplate" language. In that case, the paragraph was couched as follows: "After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments would reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Parker, 597 F.3d at 922. The Seventh Circuit held that such paragraphs—couched in these terms are conclusory—and reasoned that such language "yields no clue to what weight the trier of fact gave the testimony." Id. Moreover, Tenth Circuit authorities suggest that conclusory paragraphs (like the instant) fail to inform the "court in a meaningful, reviewable way of the specific evidence the ALJ considered in determining that claimant's complaints were not credible." See Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
Here, and consistent with Parker, Plaintiff similarly argues that the ALJ's paragraph yields no clue as to what weight he gave Plaintiff's testimony. The Court agrees. Indeed, the Court finds that the ALJ deals with Plaintiff's testimony by ignoring it into irrelevance. It marginalizes the testimony without any meaningful (evidentiary) analysis. This is not enough under Parker, nor is it consistent with Tenth Circuit authority, which, too, calls into question the use of such paragraphs in ALJ decisions. See Hardman, 362 F.3d at 679 (stating that "[s]tandard boilerplate language will not suffice [because it] fails to inform the court in a meaningful, reviewable way of the specific evidence the ALJ considered in determining that claimant's credibility.")
In sum, the Court finds that the ALJ's conclusory findings, as to Plaintiff's credibility, are insufficient, warranting remand of the ALJ's decision. Id.
To the extent that Plaintiff raises additional issues related to the sufficiency of the underlying proceedings, the Court expresses no opinion. Neither party, however, should take the Court's silence as tacit approval or disapproval of how the evidence was considered. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ's error affected the analysis as a whole, court declined to address other issues raised on appeal). It is entirely possible that, given the passage of time, the ALJ could arrive at the same conclusion as it did before and find that Plaintiff is not disabled, but before doing so, and as the Court has noted earlier, there must be some meaningful review of (1) Dr. McNamee (2) Mr. Pachta, and (3) Mr. Reyes' evidence to determine Plaintiff's disability claim.
As such, the Court does not intend by this opinion to suggest the result that should be reached on remand; rather, the Court encourages the parties, as well as the ALJ, to consider the evidence and the issues anew.
For the reasons set forth above, the Commissioner's decision is REVERSED and this case is REMANDED to the Commissioner for rehearing.
While Defendant acknowledges that Mr. Pachta is a licensed counselor, suggestion is made in Defendant's briefing that the ALJ did not need to consider his evidence. (ECF No. 11.) This argument runs in the face of SSR 06-03p, above. Despite this, the Court does acknowledge that non-medical sources are not to be given controlling weight, but some weight must be afforded to the such non-medical sources for the purpose of determining disability under the statute. Indeed, the policy statements reflecting the purpose of the statute, support this view. Id. But, in this case, there is also evidence in the record that Mr. Pacta was under the oversight of Dr. McNamee, which would tend to bolster the evidence of the former in support of Plaintiff's disability. This, however, is ultimately for the ALJ to decide on remand.
