STEPHAN M. VIDMAR, Magistrate Judge.
THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 17], filed on October 5, 2018. Defendant responded on January 7, 2019. [Doc. 22]. Plaintiff replied on February 4, 2019. [Doc. 25]. The parties have 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") did not apply the correct legal standards in evaluating Dr. Gucker's opinion. Accordingly, the Motion will be granted, and the case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (sentence four).
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. The 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 a 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 [Commissioner]'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) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (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) (quotation marks omitted).
In order to qualify for disability benefits, a claimant must establish that he 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), 1382c(a)(3)(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) he is not engaged in "substantial gainful activity"; and (2) he 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) his impairment(s) either meet or equal one of the "Listings"
This is Plaintiff's second appeal to this Court. He originally applied for a period of disability, disability insurance benefits, and supplemental security income on November 14, 2011. Tr. 41. He alleged a disability-onset date of September 1, 2009. Id. Plaintiff's claims were denied initially and on reconsideration.
ALJ Barry O'Melinn held the first administrative hearing on January 7, 2014, in Albuquerque, New Mexico. Tr. 41, 58-88. He then issued the first unfavorable decision on February 14, 2014. Tr. 53. The Appeals Council denied review, Tr. 15-19, and in federal court, on recommendation by the magistrate judge, the ALJ's decision was reversed and the case was remanded for further proceedings, Chavez v. Colvin, No. 15-cv-0734 JAP/KK, [Doc. 43] (D.N.M. Dec. 13, 2016) (unpublished).
On remand, the Appeals Council instructed the ALJ to consolidate Plaintiff's claims with those subsequently filed on October 30, 2015. Tr. 686. ALJ Ben Ballengee held the second administrative hearing on September 13, 2017, in Albuquerque, New Mexico. Tr. 574, 597-640. Plaintiff appeared in person with his attorney. Id. The ALJ heard testimony from Plaintiff and an impartial vocational expert ("VE"), Karen Provine. Tr. 597-640.
The ALJ issued the second unfavorable decision on January 25, 2018. Tr. 574-89. He found that Plaintiff met the insured-status requirement through March 31, 2014. Tr. 576. Then, at step one he found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Id. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: diabetes mellitus, diabetic peripheral neuropathy, obesity, and depression with psychotic features. Tr. 577. The ALJ also found that Plaintiff's hypertension, hyperlipidemia, gastroesophageal reflux disease, and history of alcohol and drug abuse did not qualify as "severe." Tr. 578. He further found that any head injury, post-traumatic stress disorder, spine impairment, or elbow impairment failed to qualify as "medically determinable impairments." Id.
At step three the ALJ determined that none of Plaintiff's impairments, alone or in combination, met or medically equaled a Listing. Tr. 579-80. Because none of Plaintiff's impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff's RFC. Tr. 580-87. The ALJ found that Plaintiff had:
Tr. 580-81.
At step four the ALJ found that Plaintiff was unable to perform past relevant work as a dry-wall applicator, carpenter, or construction worker I. Tr. 587. Accordingly, the ALJ went on to consider Plaintiff's RFC, age, education, work experience, and the testimony of the VE at step five. Tr. 588-89. He found that Plaintiff could perform work that exists in significant numbers in the national economy and, therefore, was not disabled. Id. Because this case had been remanded by the federal court once before, Plaintiff was not required file written exceptions with the Appeals Council. See 20 C.F.R. § 404.984. Instead, Plaintiff timely appealed directly to this Court on May 24, 2018. [Doc. 1].
Remand is warranted because the ALJ erred in failing to explain why he rejected Dr. Gucker's assessments of certain moderate limitations. Because proper evaluation of Dr. Gucker's opinion may render moot Plaintiff's other alleged errors, the Court declines to pass on them at this time.
Although ALJs need not discuss every piece of evidence, they are 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)
Dr. Gucker offered a non-examining opinion that Plaintiff had moderate limitations in the following areas:
Tr. 103-04. He further opined that Plaintiff had marked limitations in the following areas:
Tr. 103. The ALJ accorded Dr. Gucker's opinion "significant weight." Tr. 586. Plaintiff argues that the ALJ ignored certain of the moderate limitations assessed by Dr. Gucker, because the RFC assessment fails to account for all of Dr. Gucker's assessed limitations. Therefore, as Plaintiff sees it, the ALJ failed to apply the correct legal standard in weighing Dr. Gucker's opinion. [Doc. 25] at 6. The Court agrees.
Defendant's arguments in support of the ALJ's decision are without merit. [Doc. 22] at 14-17. Defendant argues that Dr. Gucker's "formal opinion" (referred to as "Section III") is the only part of his opinion that matters. Id. at 15. The implication is that the ALJ was permitted to ignore the other parts of the opinion (e.g., Section I). Review of the relevant authorities—the POMS, regulations, and case law—indicates that Defendant is incorrect.
An explanation of the relevant administrative process is necessary here. At the initial and reconsideration stages,
To record his RFC assessment, the doctor utilizes form SSA-4734-F4-SUP, the Mental Residual Functional Capacity Assessment ("MRFCA") form. POMS DI §§ 24510.005(B)(2); 24510.061(A). The POMS explains that in order "[t]o assure a comprehensive assessment of mental RFC, the [MRFCA form] requires the [doctor] to first record preliminary conclusions about the effect of the impairment(s) on each of four general areas of mental function [in Section I,] then to prepare a narrative statement of mental RFC [in Section III]." POMS § DI 24510.061(A) (emphases omitted). For example, a claimant is "`Moderately Limited' when the evidence supports the conclusion that the individual's capacity to perform the activity is impaired." POMS § DI 24510.063(B) (emphases omitted). When the doctor finds a claimant moderately limited in a certain area, "[t]he degree and extent of the capacity or limitation must be described in a narrative format in Section III." POMS § DI 24510.063(B)(2) (emphases omitted). "Section III is for recording the formal narrative mental RFC assessment and provides for the [doctor] to prepare a narrative statement for each of the subsections (A through D) in [S]ection I." POMS § DI 24510.065(A), see (B). In other words, the doctor must incorporate all of his Section I findings into his Section III narrative RFC assessment.
At the stages that the doctor makes these RFC findings, i.e., at the initial and reconsideration stages, his RFC findings are not evidence. POMS § DI 24515.007(3)(a). The MRFCA form, which contains his RFC findings, is not evidence; rather, it is a decision. The POMS expressly clarifies that when the doctor is acting as an adjudicator (i.e., at the initial and reconsideration stages), his "findings are not opinion evidence, but are formal determinations based on weighing of all the evidence." Id.
Later in the administrative process, however, if the case comes before an ALJ, the nature of the MRFCA form changes. At the ALJ stage, the doctor's MRFCA form is no longer the adjudication of the case; rather it becomes evidence that the ALJ must consider in making her own new, independent findings. The ALJ considers the doctor's MRFCA form along with all of the other evidence in the file. This MRFCA form has been completed by a doctor, acting as an adjudicator, at an earlier administrative stage. Because that doctor never examined the claimant, ALJs (and courts) refer to him as the "nonexamining physician" and refer to his report as the "nonexamining opinion." In other words, when the case percolates up to an ALJ, the findings on the MRFCA form change from an adjudication of the claim to a "nonexamining opinion" about the claim.
At the ALJ stage (and thereafter) the entire MRFCA form—all of the findings on the MRFCA form—is considered the doctor's "opinion." POMS DI § 24515.007(1)(b) ("All evidence from nonexamining sources is opinion evidence."); see POMS §§ DI 24515.002(B)(2) ("Medical opinions are statements from physicians and psychologists . . . that reflect judgments about the nature and severity of a claimant's impairment(s), including any of the following: a. Symptoms, b. Diagnosis and prognosis, c. What the claimant can still do despite impairment(s), and d. Physical or mental restriction."); 24510.010(A)(2) ("The medical source statement must always be carefully considered and addressed."). The distinction between Section I and Section III, which was meaningful for the physician adjudicator, has little to no bearing on how the ALJ must weigh the MRFCA report. POMS § DI 24515.007(3)(b) ("At the . . . [ALJ]. . . hearing . . . level . . ., the ALJ . . . will consider findings of fact made by DDS medical and psychological consultants . . . regarding the nature and severity of an individual's impairment(s) as expert opinion evidence of nonexamining sources."). Appreciating the administrative context in which the MRFCA form is generated is helpful because it clarifies that the POMS' distinction between Section I and Section III is aimed at the doctors who complete the forms, not at the ALJs.
Accordingly, the Court is not persuaded by Defendant's citation to POMS DI § 25020.010(B)(2) as support for her (incorrect) assertion that the ALJ should (or may) rely solely on Section III and ignore Section I. See [Doc. 22] at 15. That section of the POMS reads "It is the narrative written by the psychiatrist or psychologist in Section III (`Functional Capacity Assessment') . . . that adjudicators are to use as the assessment of RFC." Defendant appears to assume that "adjudicator" in that section refers to ALJs; it does not. It refers to the physician-adjudicators who make disability determinations at the initial and reconsideration stages. Such conclusion becomes evident when the statement is read in its administrative context.
Moreover, Dr. Gucker's MRFCA was not recorded on the traditional stand-alone form with Sections I, II, and III. (It is these sections to which Defendant's argument refers. See [Doc. 22] at 15.) Rather, his MRFCA was recorded using the newer Electronic Claims Tool ("eCAT"). Tr. 102-05. The MRFCA, as recorded in eCAT, contains neither a "Section I," nor a "Section III." Id. There simply is nothing on the doctor's reports reflecting any "Section." Id. Having reviewed hundreds of these forms in the past, the Court can make an educated guess as to which portions of the MRFCA might constitute the Section I and Section III findings in the traditional form. However, the Court cannot agree with Defendant that in this case, the ALJ was permitted to ignore the "Section I" findings when there is no "Section I" in Dr. Gucker's report.
More to the point, there simply is no authority permitting an ALJ to ignore any portion of a doctor's opinion, regardless of whether it is labeled as "Section I" or not. Silva v. Colvin, 203 F.Supp.3d 1153 (D.N.M. 2016) (thoroughly explaining the multiple sources of authority requiring ALJs to evaluate source opinions in their entirety and rejecting the argument that an ALJ may ignore any portion of an opinion). "The POMS' distinction between Section I and Section III is aimed at the doctor who completes the MRFCA form; it is not material to how the ALJ weighs the nonexamining opinion." Id. at 1159 (emphasis added). To the contrary, the POMS explicitly and repeatedly requires the ALJ to consider nonexamining opinions in their entirety. Id. at 1160-61 (surveying and discussing the authorities and citing e.g., POMS § DI 24515.007(1)(b) ("All evidence from nonexamining sources is opinion evidence.")).
Like the POMS, the regulations also belie Defendant's position. Id. at 1161-62 (citing 20 C.F.R. §§ 416.927(e)(2)(i), 416.912(b)(1)(viii)). The regulations require the ALJ to consider the doctor's opinion in its entirety. There is no exception for the Section I findings.
In line with the POMS and the regulations, the case law also requires the ALJ to consider a doctor's opinion in its entirety. For example, in Haga v. Astrue, the Tenth Circuit 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 1205, 1208 (10th Cir. 2007). "[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, therefore, remanded "so that the ALJ [could] explain the evidentiary support for his RFC determination." Id. Later, the Tenth Circuit expressly applied Haga and its reasoning to the opinions of nonexamining physicians in Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007).
Defendant does not address Haga or Frantz. See [Doc. 21]. Instead, she cites to one unpublished case that, if read in a vacuum, could be misinterpreted as licensing an ALJ to ignore findings that are recorded in Section I. [Doc. 22] at 15 (citing Carver v. Colvin, 600 F. App'x 616, 619 (10th Cir. 2015) "The POMS provides that Section III of the MRFCA, not Section I, is for recording a medical consultant's formal mental RFC assessment, and that adjudicators are to use the Section III narrative as the RFC assessment.")).
For Defendant's argument to carry any weight, the Court would have to find that Carver implicitly overrules Haga and Frantz. To the extent Defendant invites the Court to interpret Carver as overruling Haga and Frantz, the Court declines. Carver does not overrule Haga and Frantz. It is unpublished, and besides, one panel of the circuit court cannot overrule another. United States v. Brown, 400 F.3d 1242, 1256 (10th Cir. 2005); United States v. Foster, 104 F.3d 1228, 1229 (10th Cir. 1997). "Absent an intervening Supreme Court or en banc decision justifying such action, [the Tenth Circuit Court of Appeals] lack[s] the power to overrule [its] own precedent." Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1130 (10th Cir. 2009) (citing United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1333 (10th Cir. 2003)).
Considering the POMS, the regulations, and Haga and Frantz, the Court cannot interpret the relevant case law as supporting Defendant's argument that the ALJ in this case was permitted to omit some of Dr. Gucker's limitations, without explaining the omission.
If the moderate limitations assessed by Dr. Gucker had been accounted for in his own RFC opinion (i.e., "Section III"), then Defendant's argument might be more persuasive. An ALJ may rely exclusively on the Section III findings only with an essential caveat: the Section III findings must adequately account for the Section I findings. See Nelson v. Colvin, 655 F. App'x 626 (10th Cir. 2016) (referring to the doctor's Section I findings versus his Section III findings but ultimately deciding that the ALJ's RFC accounted for all of the Section I findings (as opposed to finding that the ALJ was free to disregard the Section I findings entirely)); Lee v. Colvin, 631 F. App'x 538, 541 (10th Cir. 2015) (finding that the POMS' distinction between the purposes of Section I and Section III "does not mean, of course, that the ALJ should turn a blind eye to any moderate limitations enumerated in Section I that are not adequately explained in Section III." (emphases omitted)); Fulton v. Colvin, 631 F. App'x 498, 502 (10th Cir. 2015) ("Where a psychologist's Section III narrative does not contradict any Section I limitations and describes the effect each Section I limitation would have on the claimant's mental RFC, the ALJ may properly look to only the Section III narrative as the psychologist's opinion regarding mental RFC. The ALJ did so here. . . . And we do not see any contradiction between Sections I and III of Dr. Kendall's [report] or any failure to describe in Section III the effects of any Section I limitations on [the plaintiff]'s capacity for work." (citations omitted)); Carver, 600 F. App'x at 618-19 (acknowledging the POMS' distinction between Section I and Section III, but holding that an ALJ may not "turn a blind eye to moderate Section I limitations," and ultimately finding that the Section I limitations at issue were accounted for in the Section III findings); Jaramillo v. Colvin, 576 F. App'x 870, 874 (10th Cir. 2014) (acknowledging the POMS' distinction between Section I and Section III, analyzing whether the ALJ's RFC (presented to the VE in a hypothetical question) "adequately account[ed]" for the Section I findings, and ultimately finding that the Section I limitations at issue were accounted for in the ALJ's RFC).
Plaintiff argues that the ALJ's RFC assessment—which essentially limited Plaintiff to unskilled work
[Doc. 17] at 16 (citing Tr. 103-04); [Doc. 25] at 4 (citing Tr. 103-04).
Defendant disagrees. She argues that the RFC assessment, coupled with the SVP-2 rating
The arguments and authorities cited by Defendant may indicate that certain of Dr. Gucker's assessed limitations are accounted for in this case. For example, the moderate limitation in Plaintiff's ability to maintain attention and concentration for extended periods, Tr. 103, appears to be accounted for by the ALJ's limitation to unskilled work and SVP-2-level jobs at step five. See Vigil, 805 at 1204 ("[T]he ALJ accounted for Vigil's moderate concentration, persistence, and pace problems in his RFC assessment by limiting him to unskilled work."); see also Smith, 821 F.3d at 1268-68 (holding that, inter alia, a moderate limitation in the ability to maintain concentration, persistence, and pace was accounted in an RFC limitation to "simple, repetitive, and routine tasks").
Other limitations assessed by Dr. Gucker, however, are not accounted for in the ALJ's RFC assessment
Remand is warranted to revisit the opinion of Dr. Gucker because the ALJ failed either to incorporate Dr. Gucker's assessed limitations into the RFC or to explain the omission. Because proper evaluation of Dr. Gucker's opinion may render moot Plaintiff's other alleged errors, the Court declines to pass on them at this time.
