LAURA FASHING, Magistrate Judge.
THIS MATTER comes before the Court on plaintiff Richard G. Martinez's Motion to Reverse and Remand (Doc. 18), which was fully briefed May 23, 2016. The parties consented to my entering final judgment in this case. Doc. 9. Having meticulously reviewed the entire record and being fully advised in the premises, the Court finds that the Administrative Law Judge ("ALJ") failed to apply the correct legal standards in weighing the opinions of Adam Metcalf, Licensed Clinical Social Worker ("LCSW"), and Dr. Elizabeth Chiang, a state agency psychiatrist. The Court therefore GRANTS Mr. Martinez's motion and remands this case to the Commissioner for proceedings consistent with this opinion.
The standard of review in a Social Security appeal is whether the Commissioner's final decision
"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)).
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
Mr. Martinez, 48, holds a Bachelor's Degree in Adult Education and a cosmetology certificate. AR 48, 58, 284. Mr. Martinez filed applications for disability insurance benefits and supplemental security income on February 14, 2014—alleging disability since July 13, 2012 due to AIDS, Kaposi's sarcoma, depression and anxiety. AR 284-89, 290-96, 354, 371. The Social Security Administration ("SSA") denied his claims initially on May 29, 2014. AR 168-72. The SSA denied his claims on reconsideration on September 5, 2014. AR 174-81, Doc. 15-7 at 1. Mr. Martinez requested a hearing before an ALJ. AR 182. On June 24, 2015, ALJ Eric Weiss held a hearing. AR 37-70. ALJ Weiss issued his unfavorable decision on July 17, 2015. AR 14-36.
At step one, the ALJ found that Mr. Martinez had not engaged in substantial, gainful activity since July 13, 2012. AR 19. Because Mr. Martinez had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. AR 20. At step two, the ALJ found that Mr. Martinez suffered from the following severe impairments: HIV/AIDS, Kaposi's sarcoma, depressive disorder, neuropathy of the feet, pneumonia, anxiety disorder, and amphetamine type substance abuse. Id. At step three, the ALJ found that none of Mr. Martinez's impairments, alone or in combination, met or medically equaled a Listing. AR 21-23. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Martinez's RFC. AR 23-29. The ALJ found that:
AR 23-24.
At step four, the ALJ concluded that Mr. Martinez was unable to perform any of his past relevant work as a teacher's aide, telephone representative, pharmacy technician, collection clerk, or room service clerk. AR 29. The ALJ found Mr. Martinez was not disabled at step five, concluding that he still could perform jobs that exist in significant numbers in the national economy—such as work as an assembler, finish inspector, and electronics assembler. AR 30-31.
Mr. Martinez requested review by the Appeals Council, which denied the request. AR 1-5. Mr. Martinez timely filed his appeal to this Court on September 16, 2015. Doc. 1.
Mr. Martinez raises several arguments for reversing and remanding this case: (1) the ALJ erred in finding that he could stand and/or walk for four hours a day; (2) the ALJ failed to properly weigh the opinion of treating physician Dr. de Vente; (3) the ALJ's RFC finding that he could perform a limited range of light work is not supported by substantial evidence; (4) the ALJ failed to support his mental RFC findings with substantial evidence; (5) the ALJ erred in giving only "some weight" to the opinion of consulting psychologist Mary Loescher, Ph.D.; (5) the ALJ failed to address several moderate limitations found by LCSW Adam Metcalf; (6) the ALJ failed to address several moderate limitations found by non-examining agency psychiatrist Dr. Chiang; and (7) the ALJ erred in relying on vocational expert testimony that conflicted with the Dictionary of Occupational Titles and that did not take into account all of Mr. Martinez's limitations. Because the Court remands based on the ALJ's failure to adequately address the limitations noted in the opinions of LCSW Adam Metcalf and Dr. Elizabeth Chiang, 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).
Mr. Martinez argues that the ALJ committed legal error by failing to incorporate several moderate mental limitations assessed by LCSW Adam Metcalf and by Dr. Elizabeth Chiang, while at the same time giving their opinions "great weight." Doc. 18 at 17-21. The Commissioner argues that the ALJ did not err because he was not required to account for all of the moderate limitations found by LCSWMetcalf, and because his reliance on Dr. Chiang's findings at the conclusion of her report excused him from addressing the numerous moderate limitations noted in the first part of her report. Doc. 22 at 10-13. For the reasons discussed below, the Court agrees that the ALJ erred by failing to address several of the noted moderate mental limitations.
Although an ALJ need not discuss every piece of evidence, he or she is required to discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). 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). "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 (same) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)).
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.
Mr. Martinez argues that because the ALJ affords LCSW Metcalf's opinion "great weight, he was required to assess the impact of the many other moderate limitations found by [LCSW] Metcalf." Doc. 18 at 17. The Commissioner argues that the ALJ does not have to address the limitations in Mr. Metcalf's "other source" opinion on a "line-by-line basis," and posits that the ALJ gave the opinion great weight because it stated that Mr. Martinez "could return to work and that his prognosis was good if he continued treatment." Doc. 22 at 10.
In his December 23, 2014 opinion, LCSW Metcalf opined that Mr. Martinez had the following limitations:
AR 880-83.
The ALJ's assessment of LCSW Metcalf's Mental Residual Functional Capacity Assessment (MRFCA) is as follows:
AR 28.
LCSW Metcalf is considered an "other source" under the regulations. See SSR 06-03p (Aug. 9, 2006), 2006 WL 2329939, at *5. Opinions from "other sources" "are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file." Id. at *3. Opinions from "other sources" are weighed using the same factors for weighing opinions from acceptable medical sources. Id. at *4-*5; Frantz, 509 F.3d at 1302.
The parties disagree about how much the ALJ was required to discuss LCSW Metcalf's "other source" opinion. The Commissioner argues that the ALJ is not required to address LCSW Metcalf's limitations "line-by-line," arguing that for a "nonacceptable medical source . . . the ALJ's decision is sufficient if it permits us to follow the adjudicator's reasoning." Doc. 22 at 10 (quoting Keyes-Zachary, 695 F.3d at 1164). The Commissioner also cites Mounts v. Astrue, 479 F. App'x 860, 866 (10th Cir. 2012) (unpublished), claiming that it stands for the proposition that an "ALJ is not required to discuss a counselor's opinions with the same level of detail as a physician's." Doc. 22 at 10. The Court finds these cases distinguishable. Unlike the ALJ in this case, the ALJs in Keyes-Zachary and in Mounts did not pick and choose from limitations noted in the "other source" opinions. In each case, the ALJ rejected the "other source" opinion outright, and the Court found no error because the ALJ's decision allowed the Court to "follow the adjudicator's reasoning." Mounts, 479 F. App'x at 866 (quoting SSR 06-03p, 2006 WL 2329939, at *6); see also Keyes-Zachary, 695 F.3d at 1164 (same).
Here, however, the ALJ erred because his discussion of the evidence does not permit the Court to follow his reasoning. In this case, as in Frantz, the ALJ "ignored evidence from [an "other source"] that would support a finding of disability while highlighting evidence favorable to a finding of nondisability." Frantz, 509 F.3d at 1302. And, as in Haga, "the ALJ did not state that any evidence conflicted with [the] opinion or mental RFC assessment. So it is simply unexplained why the ALJ adopted some of [the] restrictions but not others." 482 F.3d at 1208. Under Haga and Frantz, the ALJ was required to either adopt all of the moderate limitations assessed by LCSW Metcalf, or explain his reasons for not doing so. The ALJ gave LCSW Metcalf's opinion "great weight." AR 28. However, the RFC does not encompass all of the moderate limitations noted in LCSW Metcalf's opinion, and provides no rationale for rejecting the omitted limitations. Therefore, remand is required.
The parties do not address each omitted limitation individually. The Court will not do so either, as remand is required given that the ALJ omitted at least two critical limitations from the RFC without adequate discussion.
First, the ALJ failed to include any limitation concerning Mr. Martinez's ability to accept instructions and respond appropriately to criticism from supervisors in the RFC. LCSW Metcalf found that Mr. Martinez had a moderate limitation in this ability. AR 883. Dr. Chiang found that Mr. Martinez had a moderate limitation in this ability. AR 110, 129. Dr. Loescher, the agency's consultative examiner, found that Mr. Martinez "would be severely impaired in his ability to . . . interact with others in a work setting." AR 699.
Second, the ALJ failed to adequately address the limitation in Mr. Martinez's ability to complete a normal workday and workweek without psychologically based interruptions, and to perform at a consistent pace without an unreasonable number and length of rest periods. LCSW Metcalf found that Mr. Martinez had a moderate limitation in this ability. AR 882. Dr. Chiang found that Mr. Martinez had a moderate limitation in this ability. AR 109, 128. The ALJ did not point to any evidence contradicting the fact that Mr. Martinez has at least a moderate impairment in this area. However, the ALJ failed to explain why he rejected this limitation. The mental abilities needed for any job include "the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." Social Security Program Operations Manual System ("POMS") § DI 25020.010,
The ALJ assigned "great weight" to the medical source opinion of Dr. Elizabeth Chiang, a non-examining state agency psychiatrist. AR 29. In Section I of her May 27, 2014 MRFCA, Dr. Chiang found that Mr. Martinez had the following limitations:
AR 109-10, 128-29.
In Section III of her MRFCA, Dr. Chiang found that:
AR 110, 129.
The ALJ assessed Dr. Chiang's opinion as follows:
AR 29.
Mr. Martinez argues that the ALJ failed to account for the numerous moderate limitations in Dr. Chiang's MRFCA. Doc. 18 at 19. The Commissioner responds that "[t]he ALJ accounted for the psychologists' [sic] opinions by relying on their specific opinions, at the conclusion of their reports. . . ." Doc. 22 at 12. The Commissioner cites Sullivan v. Colvin, 519 F. App'x 985, 989 (10th Cir. 2013) (unpublished), claiming that it supports the proposition that it is not error for the ALJ to "not mention[] the moderate limitations in performance indicated in Section I of the Mental Residual Functional Capacity form where the ALJ relied on the state agency's ultimate opinion in Section III." Id. The Commissioner also cites several out-of-circuit cases as support for this position. Id. at 12-13. The Court finds the Commissioner's arguments unpersuasive.
As the Honorable Stephan M. Vidmar thoroughly explained in his recent opinion rejecting nearly identical arguments, the POMS, regulations, and case law require the ALJ to address all of Dr. Chiang's findings, not just those in Section III. See Silva v. Colvin, No. 15-cv-603 SMV, Doc. 24 at 11-18 (D.N.M., Aug. 25, 2016). Specifically, "findings of fact made by State agency . . . psychological consultants and other program physicians and psychologists become opinions at the administrative law judge . . . level[] of administrative review . . . and requires administrative law judges . . . to consider and evaluate these opinions when making a decision in a particular case." POMS § DI 24515.013,
Social Security regulations also require ALJs to "consider findings and other opinions of State agency medical and psychological consultants and other program physicians, psychologists, and other medical specialists as opinion evidence. . . ." 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i). "Evidence" includes "findings . . . made by State agency medical and psychological consultants and other program physicians and psychologists . . ., and opinions expressed by medical experts or psychological experts that we consult based on their review of the evidence in your case record." 20 C.F.R. §§ 404.1512(b)(1)(viii), 416.912(b)(1)(viii). Like the POMS, the regulations do not exempt the Section I findings from an ALJ's consideration and evaluation. See id.
Case law also requires ALJs to consider the entire MRFCA, not just the Section III findings. The Court has surveyed the cases from the Tenth Circuit that expressly address the distinction between Section I and Section III findings. Two cases, Smith v. Colvin, 821 F.3d 1264 (10th Cir. 2016) and Sullivan v. Colvin, 519 F. App'x 985 (10th Cir. 2013) (unpublished), arguably could be interpreted in the Commissioner's favor, but the others could not. Compare Smith, 821 F.3d at 1269 n.2
Thus, under Haga, 482 F.3d at 1208, and Frantz, 509 F.3d at 1302-03, the ALJ has a duty to explain why she adopted some of Dr. Chiang's limitations while rejecting others. The Court must determine whether the ALJ adequately accounted for the limitations noted by Dr. Chiang in the RFC assessment. See Carver, 600 F. App'x at 619 ("if a consultant's Section III narrative fails to describe the effect that each of the Section I moderate limitations would have on the claimant's ability, or if it contradicts limitations marked in Section I, the MRFCA cannot properly be considered part of the substantial evidence supporting an ALJ's RFC finding"). If not, the Court must determine whether the ALJ adequately explained why he rejected the missing limitations.
The Commissioner argues that, even if the ALJ failed to include some limitations, this omission is harmless error because "[t]he ALJ's ultimate findings accounted for the doctors' opinions." Doc. 22 at 13 n.1. The Court disagrees. In this case, Dr. Chiang's Section III summary failed to sufficiently account for the moderate limitations assessed in Section I. For example, Dr. Chiang's Section III findings fail to describe the effect of the Section I finding that Mr. Martinez had a "moderate limitation in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." AR 109-10, 128-29. Because Dr. Chiang's Section III summary does not encapsulate this moderate limitation, the ALJ was required to discuss this limitation in his RFC findings. As the ALJ did not do so, remand is appropriate. In addition, Dr. Chiang's Section I and Section III findings about Mr. Martinez's ability to get along with supervisors conflict. In Section I, Dr. Chiang found that Mr. Martinez had a "moderate limitation" in his ability "to accept instructions and respond appropriately to criticism from supervisors." AR 110, 129. However, in Section III, without any narrative explanation, Dr. Chiang found that Mr. Martinez could "interact adequately with co-workers and supervisors." Id. Because Dr. Chiang's Section III narrative does not incorporate her Section I finding of a moderate limitation, and because the ALJ failed to explain why he rejected this limitation, remand is required. See Carver, 600 F. App'x at 619.
As discussed above, the ALJ failed to sufficiently account for Mr. Martinez's limitations in his ability to get along with supervisors, and in his ability to complete a normal workday and workweek without interruptions and to perform at a consistent pace without an unreasonable number and length of rest periods. Under Haga and Frantz, the ALJ must either adopt these moderate limitations, or explain why he rejected them.
The ALJ erred in failing to incorporate several moderate limitations assessed by LCSW Metcalf and Dr. Chiang into Mr. Martinez's RFC without explanation. The Court remands so that the ALJ can explain the evidentiary basis for his RFC determination and his reasons for rejecting portions of the uncontroverted evidence.
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (citation omitted).
20 C.F.R. §§ 404.1545(c), 416.945(c); see also SSR 96-8p, 1996 WL 374184, at *6 ("Work-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting.") In formulating the RFC, an ALJ must perform a function-by-function assessment of these work-related functions, considering all of the relevant evidence in the case record. SSR 96-8p, 1996 WL 374184, at*2. The Tenth Circuit has held that where a claimant is found to have more than mild mental limitations in work-related functions, the ALJ must "express those impairments `in terms of work-related functions' or `[w]ork-related mental activities.'" Jaramillo v. Colvin, 576 F. App'x 870, 876 (10th Cir. 2004) (unpublished) (quoting SSR 96-8p, 1996 WL 374184, at *6).