LOURDES A. MARTÍNEZ, Magistrate Judge.
On September 15, 2011, Plaintiff filed applications for Disability Insurance Benefits (hereinafter "DIB") and Supplemental Security Income (hereinafter "SSI"), alleging that he became disabled on January 14, 2011. [Doc. 17-7 at 2-5 and 6-11, respectively]. Plaintiff claimed that he became disabled due to post-traumatic stress disorder (hereinafter "PTSD"), depression, anxiety, chronic thoracic pain, Type 2 diabetes, gastro-esophageal reflux disorder, testosterone deficiency, sleep apnea, insomnia, restless leg syndrome, nocturnal hypoxia, and benign prostatic hyperplasia. [Doc. 17-8 at 6]. Each application was denied at the initial level on January 17, 2012 (Doc. 17-4 at 2),
On April 15, 2013, the ALJ issued his decision, finding that, under the relevant sections of the Social Security Act, Plaintiff was not disabled through the date of the decision. [Doc. 17-3 at 12-24]. Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 8. By order dated October 3, 2014, the Appeals Council denied Plaintiff's request for review, on the ground that there was "no reason under our rules to review the [ALJ]'s decision." Id. at 2. This decision was the final decision of the Commissioner. On December 5, 2014, Plaintiff filed his complaint in this case. [Doc. 1].
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). Courts 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 DIB and SSI, 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. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 405.1505(a), 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. §§ 404.1520, 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) either meet(s) or equal(s) one of the "Listings" of presumptively disabling impairments; or (4) the claimant is unable to perform his "past relevant work." 20C.F.R.§§404.1520(a)(4)(i-iv), 416.920(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 residual functional capacity (hereinafter "RFC"), age, education, and work experience. Grogan, 399 F.3d at 1261.
Plaintiff was born on June 4, 1967, and was 43 years old on January 14, 2011, the alleged onset of disability date. [Doc. 17-8 at 2]. Plaintiff graduated from high school and completed one semester of college at the University of New Mexico. [Doc. 17-3 at 42]. Prior to his alleged disability, Plaintiff had worked as a customer service representative by phone, a user support representative, a patient transporter, an orthopedic technician, a cashier, and a pharmacy technician. [Doc. 17-3 at 22-23, 37-41].
Plaintiff's medical records include: Disability Determination Examination, dated December 7, 2011, by Louis Wynne, Ph.D. (Doc. 17-15 at 75-79); Psychiatric Review Technique (Doc. 17-16 at 2-13) and Mental RFC (id. at 14-16), both dated December 20, 2011, by Carol Mohney, Ph.D; Physical RFC, dated January 4, 2012, by Mary Lanette Rees, M.D. (id. at 17-22); Case Management Note, dated October 3, 2012, by Plaintiff's treating physician, Juliane N. Bohan, M.D. (Doc. 17-20 at 39-40). 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 his alleged disability onset date of January 14, 2011. [Doc. 17-3 at 14]. At step two, the ALJ found that Plaintiff has the following severe medically determinable impairments: "Major Depressive Disorder (MDD), generalized anxiety disorder (GAD), hypertension, a history of knee and ankle disorders and obesity." Id.. At the third step, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled any of the Listings found in 20 C.F.R. § 404, Subpt. P, App'x. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Id. at 15. The ALJ considered Plaintiff's obesity, noting that it is no longer a listed impairment, and found that it has not "reached a level that would cause [Plaintiff]'s other impairments to meet or medically equal a listed impairment." Id. The ALJ also found that Plaintiff had mild restriction of his activities of daily living, moderate difficulties with social functioning, and moderate difficulties with concentration, persistence or pace. Id. at 16. Therefore, the ALJ determined that Plaintiff's mental impairments did not satisfy the paragraph B or paragraph C criteria for Listings 12.04, 12.06, and 12.08. Id. at 15-16. Finally, the ALJ considered Listing 12.09 with respect to Plaintiff's history of poly-substance abuse, concluding that the "prior substance abuse is not material and is non-severe in that it has not resulted in any significant limitation in his ability to do basic work activities." Id. at 17.
Before step four, the ALJ determined that Plaintiff had the RFC:
[Doc. 17-3 at 17]. In support of his RFC assessment, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Id. at 20.
At the fifth and final step, the ALJ noted that Plaintiff was born on June 4, 1967, and was therefore 43 years old on the alleged disability onset date, which is considered to be a younger person pursuant to 20 C.F.R. §§ 404.1563(c) and 416.963(c) (defining a "younger person" as "under age 50"). [Doc. 17-3 at 23]. The ALJ noted that Plaintiff has at least a high school education and is able to communicate in English, and stated that "[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the [Plaintiff] is `not disabled,' whether or not [he] has transferable job skills." Id. However, the ALJ noted that Plaintiff's ability to perform the full range of light work "has been impeded by additional limitations," and asked the VE to determine "whether jobs exist in the national economy for an individual with the [Plaintiff]'s age, education, work experience, and [RFC]." Id. at 23-24. The VE testified that such an individual "would be able to perform the requirements of representative occupations," including: mail sorter (DOT 209.687-026),
Plaintiff makes the following arguments in his motion to reverse or remand: (1) the ALJ improperly rejected findings by the Administration's own medical experts, and failed to express his RFC assessment in terms of work-related mental activities; and (2) the ALJ failed to inquire about or resolve discrepancies between the VE's testimony and the DOT. [Doc. 23 at 2]. In response, Defendant argues that the ALJ reasonably weighed the medical evidence and properly expressed Plaintiff's RFC, and any error regarding the VE's testimony was harmless. [Doc. 30 at 11, 15, 16]. In his reply brief, Plaintiff argues that Defendant has mischaracterized Plaintiff's arguments and fails to address the real issues, and that the conflicts between the VE's testimony and the DOT were not resolved and, therefore, are not harmless error. [Doc. 31].
In December 2011, Plaintiff was examined, at the Administration's request, by Louis Wynne, Ph.D., who provided an assessment of Plaintiff's psychological disability. [Doc. 17-15 at 75-79]. In his assessment, Dr. Wynne diagnosed Plaintiff with major, recurrent, severe depression with psychotic features, alcohol abuse in remission, opioid abuse, panic disorder, and cognitive disorder (not otherwise specified) due to head injury. Id. at 77. Dr. Wynne assigned Plaintiff a Global Assessment of Functioning (hereinafter "GAF") score of 51 (id. at 78), which indicates "moderate" symptoms.
Id. at 77. The ALJ gave Dr. Wynne's opinion "some weight, because Dr. Wynne personally examined the [Plaintiff] and because [the opinion] is consistent with the medical evidence of record." [Doc. 17-3 at 21]. Nonetheless, based on the ALJ's own determination that Plaintiff's "substance abuse is in remission,"
Also in December 2011 and at the Administration's request, Carol Mohney, Ph.D reviewed Plaintiff's psychiatric medical records and provided a Mental RFC assessment of Plaintiff on that basis. [Doc. 17-16 at 14-16]. In Section I of her RFC assessment, Dr. Mohney indicated that Plaintiff was moderately limited in ten out of twenty abilities, including: understanding and remembering detailed instructions; carrying out detailed instructions; working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically-based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; interacting appropriately with the general public; accepting instructions and responding appropriately to criticism from supervisors; maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness; being aware of normal hazards and taking appropriate precautions; traveling in unfamiliar places or using public transportation; and setting realistic goals or making plans independently of others. Id. at 14-15. Dr. Mohney assessed Plaintiff's ability to respond appropriately to changes in the work setting as "markedly" limited.
As recently discussed by the Tenth Circuit Court of Appeals in Carver v. Colvin, 600 Fed. App'x 616, 619 (10th Cir. 2015) (unpublished), the narrative statement in Section III of the Mental RFC form is for the medical source to "explain[] the conclusions indicated in [S]ection I, in terms of the extent to which these mental capacities or functions could or could not be performed in work settings." The narrative should "[i]dentify the [Section I] subsection (e.g., Understanding and Memory), then discuss the functions that the individual has demonstrated that he/she can do, as well as any limitations of those functions." POMS DI 24510.065.B.1. Although Dr. Mohney's narrative utterly fails to meet this standard, the ALJ still gave her opinion "some weight," while also noting that Dr. Mohney had "opined the [Plaintiff] had moderate restrictions in his activities of daily living as well as maintaining social functioning and concentration, persistence or pace." [Doc. 17-3 at 21] The ALJ then discounted at least one portion of Dr. Mohney's RFC Assessment based on his own conclusion that Plaintiff's "daily activities support the conclusion he is capable of work consistent with my determination." Id.
Significantly, the ALJ relied heavily on a list of activities of daily living (hereinafter "ADL") as evidence of Plaintiff's lack of credibility regarding his symptoms. The list, which is general rather than specific, is recited several times in the ALJ's decision and includes Plaintiff's ability to take care of himself and his children, do light housework, go outside daily, drive, shop for groceries, pay bills, count change, and "handle" a savings account. See [Doc. 17-3 at 16 (twice), 18, 20, 22]. First, the ALJ does not elaborate on how such activities render Plaintiff's testimony less than credible, nor how they indicate that Plaintiff's work-related limitations should be given any less weight. For example, there is no discussion about just how much or how well Plaintiff "cares for" himself or his daughters (who were 15 and almost 13 at the time of the hearing), or what kind of "light housework" Plaintiff does or how often he does it. Plaintiff did testify that he drove by himself to the hearing and that he drives his children to school, but also that he is "afraid" to drive, and that he goes grocery shopping only about once a month. Much of his time is spent simply watching TV at his parents' home, which is where he and his daughters live, and where his mother does all of the cooking and most of the housework. The ALJ's statement that Plaintiff's "legal custody" of his children "undermines his claim, as he would be unlikely to have legal custody if he were unfit for parental duties" is pure speculation. Although Plaintiff testified that his two daughters live with him (and his parents), he did not elaborate on the circumstances that led to that arrangement, nor did he state that he had "legal custody" of his children.
More importantly, the mere fact that Plaintiff's daughters have not been removed from his care certainly does not establish as a fact that he is a consistently fully-functioning parent. Similarly, an ability to care for one's children is no guarantee that one is able to perform work in a competitive market. Since no attempt was made to develop the extent or quality of Plaintiff's "care" of his daughters at the hearing, it is disingenuous to consider that general fact as evidence that Plaintiff is not as limited as he claims. Moreover, none of the activities the ALJ listed as evidence that Plaintiff is not as limited as he claims relates in any significant way to the work-related abilities in which Plaintiff was found to be moderately or markedly limited, including taking criticism from supervisors and adapting to changes in a work setting. Thus, it has long been held that "sporadic performance of household tasks or work does not establish that a person is capable of engaging in substantial gainful activity." Bright v. Astrue, No. 08-1196-MLB, 2009 WL 1580308, at *4 (D. Kan. June 4, 2009) (unpublished), citing Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (an "ALJ may not rely on minimal daily activities as substantial evidence that a claimant does not suffer disabling pain"). Certainly, the relationship between engaging in minimal daily activities and a claimant's mental capacity to work is even more tenuous than the relationship between a claimant's activities and his physical ability to work.
It is apparent to this Court that the ALJ gave weight to those portions of Drs. Wynne and Mohney's opinions that correlated with his own view of Plaintiff's RFC, and disregarded the rest based on his own opinion of the evidence. The ALJ made no effort to discuss the overlapping limitations indicated by both medical sources, apparently concluding that assessing Plaintiff capable of light, unskilled work would be sufficient. This is not how an ALJ is expected to render an RFC assessment, however, and "[a] limitation to `simple work' or `unskilled jobs' is generally insufficient to address a claimant's mental impairments." Groberg v. Astrue, 505 Fed. App'x 763, 770 (10th Cir. 2012) (unpublished), relying, in part, on Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012). Defendant contends that limiting Plaintiff to "working with things rather than people," as did the ALJ here, "is one way to describe an expectation of unskilled work," citing Soc. Sec. Rep. 85-15 (1985). However, this argument misses the point, which is that unskilled work cannot be performed by a claimant who lacks the abilities that are necessary to jobs of any skill level. Thus, Soc. Sec. Rep. 85-15 also states:
Id. at *4. In this respect, POMS lists the mental abilities that are needed for any job, regardless of the skill level assigned to a particular claimant. See DI 25020.010.B.2. Several of the "needed for any job" abilities listed in POMS were specifically identified by Drs. Wynne and Mohney as either moderately or markedly limited in Plaintiff's case. Those abilities are: working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; accepting instructions and responding appropriately to criticism from supervisors; being aware of normal hazards and taking appropriate precautions; and responding appropriately to changes in the work setting.
The ALJ must base the RFC assessment on all of the relevant evidence in the record, such as medical history, laboratory findings, effects of treatment and symptoms, including pain, reports of daily activities, lay evidence, recorded observations, medical source statements, evidence from attempts to work, need for a structured living environment, and work evaluations, if any. Soc. Sec. Rep. 96-8p at *5. "The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. at *7. The ALJ "must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved," and the RFC assessment must always consider and address medical source opinions. Id. Because the ALJ must consider the whole record, he is prohibited from picking and choosing "among medical reports, using portions of evidence favorable to his position while ignoring other evidence." Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008) (citation and internal quotation marks omitted). When there are multiple opinions regarding medical severity and functional ability from different sources, the ALJ must explain the weight given to each source's opinions. Hamlin, 365 F.3d at 1215 (citation omitted).
The ALJ's utter disregard of Plaintiff's limitations in abilities necessary to any job simply does not satisfy this standard, and leaves significant gaps in his assessment of Plaintiff's RFC, which require remand of this case for further consideration.
Plaintiff also contends that the VE's trial testimony conflicts with the DOT job requirements. However, because the Court finds that Plaintiff's case should be remanded for further consideration of the medical evidence, the Court finds that it is unnecessary to reach Plaintiff's claim regarding the VE's testimony, which the ALJ relied on at step five, because that claim may be affected by the findings 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) and Lopez v. Astrue, No. 09-2187, 371 Fed. App'x. 887, 889 and 892 n.6, 2010 WL 1172610 (10th Cir. March 29, 2010) (as the ALJ erred by failing to articulate the weight given to treating physicians' opinions, 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) (citing Robinson, 366 F.3d at 1085).
For the reasons stated above, the Court
