LOURDES A. MARTÍNEZ, Magistrate Judge.
On February 21, 2013, Plaintiff filed an application for Disability Insurance Benefits (hereinafter "DIB"), alleging disability that began on November 11, 2012 (Doc. 15-12 at 2).
The 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) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d at 760 (citation and quotation marks omitted). An ALJ's 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." Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted). While a court may not re-weigh 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) (citations omitted). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
For purposes of social security disability claims, a person establishes a disability when 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. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). In light of this definition for disability, a five-step sequential evaluation process (hereinafter "SEP") has been established for evaluating a disability claim. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in "substantial gainful activity;" and (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 either (3) the claimant's impairment(s) meet(s) or equal(s) 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); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering his or her residual functional capacity (hereinafter "RFC"), age, education, and work experience. Grogan, 399 F.3d at 1261.
Plaintiff was born on August 3, 1969, and was 43 years old on November 11, 2012, the alleged date of disability onset. [Doc. 15-12 at 2]. On September 22, 2016, the date of the ALJ's decision, Plaintiff was 47. Thus, Plaintiff was both a "younger person age 18-44" and a "younger person age 45-49"
Plaintiff's medical records include: hospital in-patient treatment records from Peak Psychiatric Hospital, for the period from February 22, 2016 through March 18, 2016 (Doc. 15-3 at 9-26); office treatment records from Presbyterian Family Health Care, dated March 20, 2013 (Doc. 15-17 at 13-19); outpatient records from University of New Mexico Behavioral Health, dated August 14, 2013 to September 4, 2013 (Doc. 15-21 at 12-16; Doc. 15-22 at 21-27; Doc. 15-23 at 2-6, 22-30, 34); comprehensive assessment from Open Skies Healthcare, dated February 2, 2015 (Doc. 15-29 at 3-13); and office treatment records from First Choice Community Healthcare, dated May 12, 2014 to May 8, 2015 (Doc. 15-30 at 3-23). Where relevant, Plaintiff's medical records are discussed in more detail below.
At step one of the five-step evaluation process, the ALJ found that, Plaintiff "has not engaged in substantial gainful activity since November 11, 2012, the alleged onset date." [Doc. 15-4 at 7]. At step two, the ALJ found that Plaintiff has the following severe impairments: "total right knee replacement; degenerative disc disease of the lumbar and cervical spines; bilateral plantar fasciitis; neuroma and hammertoes with associated bilateral foot pain; obesity; and depression." Id. at 8. At the third step, the ALJ found that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926)." Id. In so finding, the ALJ stated that she considered Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety related disorders). Id. at 8-10. With respect to the paragraph B criteria for Listing 12.04, the ALJ found that Plaintiff has mild restriction of her activities of daily living, moderate difficulties with social functioning, moderate difficulties with concentration, persistence or pace, and has had no episodes of "significant decompensation," although she had "experienced one to two episodes of decompensation, each of extended duration." Id. at 9-10. Therefore, the ALJ determined that Plaintiff did not satisfy the paragraph B criteria for that listing. Id. at 10. The ALJ then determined that Plaintiff also did not meet the paragraph C criteria for Listings 12.04 and 12.06. Id. Prior to step four, the ALJ determined that, from November 11, 2012, the alleged onset of her disability, Plaintiff had the RFC to:
Id. at 11. In support of this RFC assessment, the ALJ found that Plaintiff's "medically determinable impairments might be expected to cause some of the alleged symptoms; however, [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." Id. at 12.
At step four, the ALJ found that Plaintiff is unable to perform any of her past relevant work, consisting of stage technician (skilled, heavy exertion), contractor (skilled, medium exertion), painter (skilled, light exertion), electronics worker (unskilled, light exertion), and sound operator (skilled, light exertion) based on her current, sedentary, RFC. Id. at 16-17. At step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. Id. at 17. The ALJ relied on the VE's testimony that an individual with Plaintiff's age, education, work experience, and RFC would be able to perform the following representative jobs: document specialist (DOT
In her motion, Plaintiff argues that: (1) in determining Plaintiff's RFC, the ALJ (a) "failed to weigh the evidence properly" and (b) used improper factors to determine that Plaintiff was not credible; (2) the ALJ relied on VE testimony regarding job numbers that was inherently unreliable; and (3) the Appeals Council improperly rejected "new, relevant, and material evidence." [Doc. 20 at 3]. Defendant responds that: (1) the ALJ reasonably found that Plaintiff has the RFC to perform a limited range of sedentary work, based on a reasonable evaluation of the medical evidence and a reasonable evaluation of Plaintiff's credibility (Doc. 22 at 11-21); (2) Plaintiff did not challenge the VE's testimony regarding jobs numbers and, in any event, 45,000 document preparer jobs is significant (id. at 21-23); and (3) the additional documentation submitted to the Appeals Council is evidence of events that occurred after the ALJ's decision and, "therefore, simply does not pertain to the period adjudicated by the ALJ" (id. at 23). In her reply, Plaintiff asserts that the ALJ failed to account for all moderate limitations assessed by consulting expert Donald K. Gucker, Ph.D., failed to explain how she weighed the opinion of Christopher Cunningham, LMSW, and it was not Plaintiff's burden to develop the vocational evidence, as well as reiterating her prior arguments. [Doc. 23].
Although Plaintiff raises several issues on appeal, the Court will consider her final issue first. Plaintiff contends that the Appeals Council improperly rejected additional evidence she submitted after the ALJ's decision was issued. [Doc. 20 at 23]. Specifically, the evidence consists of hospital in-patient treatment records from Peak Psychiatric Hospital dated February 22, 2016 through March 18, 2016 (hereinafter "Peak records"). Under the regulations in effect at the time of the Appeals Council's decision, "[i]f new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b) (1987). Thus, additional evidence that is submitted to the Appeals Council need only be considered if the evidence is "new, material, and chronologically pertinent." Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). In this case, the Appeals Council indicated that it had "looked at" the Peak records and determined that they were about a later time than the one considered by the ALJ, and "do[ ] not affect the decision about whether [Plaintiff was] disabled before September 22, 2015." [Doc. 15-3 at 3]. This is a legal determination, which is reviewable by this Court de novo. Threet, 353 F.3d at 1191.
"Evidence is new within the meaning of [§] 404.970(b) if it is not duplicative or cumulative." Id. (quoting Wilkins v. Sec'y of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)) (internal punctuation omitted). Although Defendant did not contest that the Peak records are "new," the Court concludes that they are neither duplicative nor cumulative of evidence presented at the hearing and are, therefore, "new" within the meaning of the regulation. The medical records submitted to the Appeals Council are evidence of an episode of decompensation of extended duration that took place five months after the ALJ determined that Plaintiff's mental impairments did not preclude her ability to obtain gainful employment. Thus, the evidence is clearly not duplicative or cumulative, and satisfies the element of newness.
Evidence is material "if there is a reasonable possibility that it would have changed the outcome." Id. (quoting Wilkins, 953 F.2d at 96) (internal punctuation omitted). Defendant did not address the applicability of this factor to the Peak records. The Peak records evidence a 25-day psychiatric hospitalization of Plaintiff that began five months after the ALJ's decision was issued. Plaintiff was transferred from the Lovelace Haven Hospital emergency room to Peak "due to acute psychosis and being extremely paranoid." [Doc. 15-3 at 12]. While at Peak, Plaintiff received ongoing psychiatric care from Aleksandr Gazarov, M.D., who indicated in his initial notes that Plaintiff was "in a manic psychotic phase," and was "rambling" at times. Id. at 13. Dr. Gazarov noted that Plaintiff "appear[ed] to be in severe distress. She [wa]s hypervigilant, guarded, angry, agitated and suspicious." Id. Her "mood [wa]s anxious and depressed in a mixed state," and she was "delusional with paranoid persecution." Id. Dr. Gazarov noted further that Plaintiff's "[i]nsight and judgment [we]re felt to be limited," and her "[c]ognition and memory [we]re difficult to assess due to inability of the patient to communicate meaningfully." Id. at 14. He diagnosed Plaintiff with, among other things, "Schizoaffective disorder, bipolar type, exacerbation, with recent manic episodes; Opiate dependency; Insomnia; [and] Rule out posttraumatic stress disorder." Id. Finally, Dr. Gazarov noted that Plaintiff was "not compliant with her medications," and was "very suspicious about" them. Id. at 12. Dr. Gazarov attributed Plaintiff's non-compliance to her paranoia, and noted that, going forward, "[m]ost likely, she will drop the medications as she did lately believing that they are poison." Id. at 15. He suggested possibly treating her with injectable Abilify,
One week later, although Plaintiff reported she was "fine," Dr. Gazarov noted she was "confused, disoriented, [and] unable to make proper eye contact"; her mood was "depressed"; and at times she was "smiling inappropriately or talking to herself." Id. at 22. After another week, Dr. Gazarov noted that Plaintiff had "slept overnight for up to 2 hours," and in the morning "was extremely angry, agitated, psychotic, confused and disoriented." Id. at 21. She was given Haldol
The ALJ acknowledged that Plaintiff's depression is a "severe impairment" established by medical evidence. [Doc. 15-4 at 8]. However, despite Plaintiff's numerous psychological complaints and symptoms, the ALJ focused her decision on Plaintiff's physical impairments and appeared to significantly discount Plaintiff's mental issues as incident to drug usage. For example, the ALJ only briefly mentioned the mental health assessment by Christopher Cunningham, LMSW noting, first, that Mr. Cunningham recommended that Plaintiff "get medication management," and then essentially rejecting his entire assessment as "document[ing] self-reported anxiety and panic attacks, which appear to be primarily related to social stressors; relationship problems, financial problems, and lifestyle changes." Id. at 14. In light of the Peak records, a more comprehensive consideration of Mr. Cunningham's assessment seems warranted.
The ALJ also failed to discuss anxiety in any meaningful way, even though she claimed to have considered whether Plaintiff's anxiety met the criteria for Listing 12.04. See id. at 10. Thus, the ALJ implicitly found that Plaintiff's anxiety did not satisfy the "de minimus" standard of step two severity (see id. at 8), which draws the line only where an impairment is so slight that it "do[es] not significantly limit any `basic work activity.'" Langley, 373 F.3d at 1123. Considering whether anxiety that does not satisfy the much lower step two severity standard under step three is pointless, since listing-level impairments are so severe that they are presumed to be disabling. See 20 C.F.R. §§ 404.1511(a) and 416.911(a).
Additionally, the ALJ made several inconsistent statements regarding decompensation episodes in her step three discussion. The ALJ first stated that Plaintiff "has experienced one to two episodes of decompensation, each of extended duration," followed immediately by the statement that she found "no evidence revealing that [Plaintiff] has had any episodes of significant decompensation." [Doc. 15-4 at 10]. Shortly thereafter, the ALJ stated that Plaintiff did not "meet the C criteria [for Listing 12.04] because she has not had any episodes of decompensation of extended duration." Id. The paragraph C criteria for Listing 12.04 require a 2-year documented history of a chronic affective disorder, plus one of three other factors, including, "[r]epeated episodes of decompensation, each of extended duration."
Additionally, the ALJ was dismissive of Plaintiff's statements regarding her symptoms, finding them to be "less than credible." [Doc. 15-4 at 12]. Thus, although Plaintiff repeatedly reported feeling anxious to various providers during the period prior to the ALJ's decision (see, e.g., Docs. 15-17 at 16; 15-22 at 16; 15-23 at 22, 24, 27; 15-24 at 3; 15-29 at 4, 10; 15-30 at 15, 21), the ALJ did not even discuss anxiety at step two. Moreover, during Plaintiff's hospitalization at Peak, she was repeatedly described by her treating physician as "anxious." See [Doc. 15-3 at 13, 21, 25]. Thus, the Peak records are supportive of Plaintiff's claims of anxiety, which the ALJ deemed not significant enough to even discuss. At the very least, the Peak records are evidence that Plaintiff's mental impairments were more serious than they seemed when the ALJ's decision was issued. Although other conclusions are also possible, new evidence is deemed "material" if it is reasonably possible that it might lead to a different result. Threet, 353 F.3d at 1191. The Court finds that the Peak records support a reasonable possibility of a different result, not just with respect to the existence of Plaintiff's mental impairments, but also with respect to Plaintiff's credibility in reporting her symptoms.
The stated reason for the Appeals Council's rejection of the Peak Records was that the evidence was "about a later time" (Doc. 13-3 at 3) or, in other words, it wasn't temporally relevant. This is also the sole basis relied upon by Defendant in arguing that rejection of the records was not error. However, the Court disagrees. New evidence is not required to be created prior to the ALJ's decision; only that it "relate to" that period. See 20 C.F.R. § 404.970(b). Thus, in Padilla v. Colvin, 525 F. App'x 710, 712 (10th Cir. 2013) (unpublished), the Tenth Circuit reversed an Appeals Council decision that rejected
The Peak records relate to a mental condition that was considered and deemed to be "severe" by the ALJ. Specifically, Plaintiff's admitting diagnosis was "[m]ajor depression, with psychotic features" (Doc. 15-3 at 16), and Dr. Gazarov listed her diagnosis as an "exacerbation"
The Court finds that the Peak records satisfied all three criteria for consideration of additional evidence by the Appeals Council because that evidence was "new, material, and chronologically pertinent." Threet, 353 F.3d at 1191. If additional evidence meets the new, material, and temporally relevant standards, and "the Appeals Council did not consider it, the case should be remanded for further proceedings." Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004). See also, Threet, 353 F.3d at 1192 (rejection of such evidence "means that the Appeals Council did not evaluate the entire record including the new evidence, [and] that failure constitutes substantial legal error necessitating a remand for further proceedings"). Based on the Appeals Council's failure to consider new, material, and chronologically pertinent information, this matter will be remanded for additional proceedings.
Because this Court has determined that Plaintiff's case must be remanded for further consideration of the Peak records, it is unnecessary to resolve Plaintiff's additional issues at this time, since those issues may be affected by the proceedings on remand. See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004) (declining to reach the plaintiff's step five claims because they may be affected by resolution of the case on remand); Lopez v. Astrue, 371 F.App'x. 887, 889 and 892 n.6 (10th Cir. March 29, 2010) (unpublished) (court need not reach claims regarding ALJ's reliance on VE testimony, since such issues may be affected by treatment of the case on remand for further consideration) (citing Robinson, 366 F.3d at 1085). Accordingly, the Court will not attempt to fully discuss or resolve those issues at this time. However, the Court will provide limited guidance on some of the issues raised by Plaintiff in this appeal in an effort to avoid another appeal on the same or similar grounds.
First, Plaintiff contends that the ALJ improperly relied on her "overuse of opioid medication . . . to find her not credible." [Doc. 20 at 19]. The Court agrees that the ALJ's decision does repeatedly refer to Plaintiff's use of narcotic pain killers, including the following statements: William Chestnut, M.D. noted Plaintiff "requires five Vicodin
Id. at 16.
Despite these numerous references to Plaintiff's drug usage, the ALJ did not find that substance abuse was an impairment, either severe or non-severe, in Plaintiff's case. Id. at 8. However, repeated references to drugs at least arguably suggest that the ALJ considered substance use to have had at least some impact on Plaintiff's psychological symptoms. Moreover, if the ALJ suspected substance abuse, that suspicion also may have negatively impacted her credibility assessment of Plaintiff, as Plaintiff suggests. While that may or may not have been this ALJ's view, it is worth noting that there is a standard protocol for considering drug usage in disability cases, which was not followed in this case. See Soc. Sec. Rep. 13-2p ("Titles II and XVI: Evaluating Cases Involving Drug Addiction and Alcoholism"). The protocol applies where there is evidence that drug addiction or alcoholism (hereinafter "DAA") is a medically determinable impairment (hereinafter "MDI"). Id. at *10. In such cases, the protocol first requires the ALJ to apply the five-step SEP to determine whether "the claimant is disabled considering all MDIS, including DAA." Id. at *6 (emphasis added). "It is beyond dispute that an ALJ is required to consider all of the claimant's medically determinable impairments, singly and in combination; the statute and regulations require nothing less." Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). If the claimant is determined to be disabled after the first SEP, a second SEP is required, in order to determine whether she would still be disabled in the absence of DAA. SSR 13-2p at *6. If the claimant would not be disabled absent the DAA, the DAA is said to be "material" to the disability finding and benefits are denied. Id. at *5. However, two SEPs are required, even "[w]hen the claimant's other impairment(s) is not disabling by itself." Id. at 6. In this case, it appears that Plaintiff's DAA was considered to be an MDI, but no such finding was made, nor was the two-stage protocol implemented. This appears to have been error. Therefore, on remand, a finding should be made at step two of the SEP regarding whether or not Plaintiff's narcotics usage constitutes a MDI and, if so, the SSR 13-2p protocol should be followed.
Second, the Plaintiff argues on appeal that the VE's testimony regarding the number of document preparer jobs is "unreliable" because it is "vastly different from" job numbers provided by other VEs in other cases. [Doc. 20 at 22]. Plaintiff also contends that neither of the representative jobs is likely to exist "in this technological age," and that those jobs' very existence depends on outdated information. Id. at 21-22. However, these objections to the VE's testimony were not made by Plaintiff's former counsel at the ALJ hearing. Therefore, on remand, Plaintiff's counsel should raise this issue in such a way that it can be fully addressed by the Commissioner and/or the ALJ, or accept the risk that failure to do so may be deemed a waiver of the issue. See, e.g., Maes v. Astrue, 522 F.3d 1093, 1097(10th Cir. 2008) (claimant's counsel cannot allow evidence to stand and then argue that the ALJ failed to develop the record); Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997) ("ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored").
For the reasons stated above, the Court
