LOURDES A. MARTINEZ, Magistrate Judge.
On January 26, 2011, Plaintiff filed applications for Disability Insurance Benefits (hereinafter "DIB") and Supplemental Security Income (hereinafter "SSI"), alleging that she became disabled on November 1, 2005.
On August 16, 2013, the ALJ issued her decision, finding that, under the relevant sections of the Social Security Act, Plaintiff was not disabled through the date of the decision. [Doc. 15-4 at 5-17]. Plaintiff requested that the Appeals Council review the ALJ's decision. [Doc. 15-3 at 42-43]. By order dated January 5, 2015, the Appeals Council accepted additional evidence, Exhibits 15E (Doc. 15-10 at 15-20), 16E (Doc. 15-11 at 2-44), and 15F (Doc. 15-20 at 2-13), which thereby became part of the record. Id. at 7. Also on January 5, 2015, 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 3-6. This decision was the final decision of the Commissioner. On March 9, 2015, Plaintiff filed her 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." 20 C.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 is a 48-year old divorced mother with two minor children, who has a long history of psychiatric difficulties. She was 41 on May 30, 2008, the amended onset of disability date. [Doc. 15-4 at 22, 25]. Plaintiff graduated from high school and completed three years of college at the University of New Mexico, studying environmental design. Id. at 25. Prior to her alleged disability, Plaintiff had worked as a teacher's aide, sales clerk, account manager, and credit representative. [Doc. 15-9 at 29]. Plaintiff has been diagnosed with both bipolar affective disorder and PTSD. See, e.g., [Doc. 15-15 at 34].
Nat'l Inst. of Mental Health, "Bipolar Disorder in Adults," http://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml#part_145404 (site last visited March 1, 2016).
Plaintiff's medical records include: mental work capacity evaluation by her treating psychiatrist, Karl Mobbs, M.D., dated June 15, 2011 (Doc. 15-16 at 54-57); mental RFC assessment (id. at 40-43) and psychiatric review technique (id. at 26-39), by Richard Reed, Ph.D., each dated March, 30, 2011; case analysis dated May 30, 2011 by Charles Mellon, M.D. (id. at 48); and psychiatric treatment records from the University of New Mexico Mental Health Center, dated October 10, 2008 through July 9, 2012 (Doc. 15-21 at 21 through Doc. 15-24 at 8), and dated February 4, 2011 through May 31, 2013 (Doc. 15-28 at 2 through Doc. 15-29 at 13). 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 definitively engaged in substantial gainful activity" since her alleged disability onset date of May 30, 2008.
Before step four, the ALJ determined that Plaintiff had the RFC:
[Doc. 15-4 at 11]. In support of her RFC assessment, the ALJ found that "[Plaintiff]'s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Id. at 12. The ALJ also found that Plaintiff had experienced one episode of decompensation of extended duration in 2008, after Plaintiff had been involved in a rollover car accident. Id. at 10.
At the fifth and final step, the ALJ noted that Plaintiff was born on February 19, 1967. [Doc. 15-4 at 15]. Therefore, Plaintiff was 41 years old on the amended disability onset date, which is considered to be a "younger person."
Plaintiff makes the following arguments in her motion to reverse or remand: (1) the ALJ failed to properly consider the opinions of Plaintiff's treating psychiatrist, Karl Mobbs, M.D., in accordance with the treating physician rule; and (2) the ALJ failed to account for moderate nonexertional limitations indicated by state non-examining doctors, Richard Reed, Ph.D. and Charles Mellon, M.D., in her RFC narrative. [Doc. 21 at 1]. In response, Defendant contends that the ALJ properly evaluated the medical opinions, and her decision is supported by substantial evidence. [Doc. 25 at 10-13]. Plaintiff's reply reiterates that Dr. Mobbs' mental RFC of Plaintiff was consistent with the medical evidence, and that the limitations Dr. Reed found in Section I of his mental RFC of the Plaintiff should have been discussed, both by him and by the ALJ. [Doc. 26].
Plaintiff first contends that the ALJ's disregard of the opinions of Dr. Mobbs violated the "treating physician rule." 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, she is prohibited from picking and choosing "among medical reports, using portions of evidence favorable to [her] 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).
Here, the ALJ found that Plaintiff suffered from two severe disabilities; bipolar disorder and PTSD. Dr. Mobbs was Plaintiff's treating psychiatrist for ten months prior to assessing her mental work functionality in June 2011. See [Doc. 15-16 at 54-57)]. As such, Dr. Mobbs is considered a "treating source" whose opinions are generally given "controlling weight." See Soc. Sec. Rep. 96-2P, 1996 WL 374188 at *1 (1996) ("If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted"). The Tenth Circuit Court of Appeals has explained this principle, which is commonly called the "treating physician rule," as follows:
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (emphasis added) (citations and internal quotation marks omitted). See also Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (an examining medical-source opinion is given particular consideration and is presumptively entitled to more weight than a doctor's opinion derived from a review of the medical record).
Even where the ALJ determines that a treating source's opinion is not entitled to controlling weight, the opinion is still entitled to deference and must be weighed using the following factors:
Bainbridge v. Colvin, 618 F. App'x 384, 389-90 (10th Cir. 2015) (unpublished). In this case, the only opinions regarding Plaintiff's mental functioning were provided by Dr. Mobbs, her treating psychiatrist, Dr. Reed, a non-examining psychologist, and Dr. Mellon, a non-examining psychiatrist.
On June 15, 2011, Dr. Mobbs filled out a mental work capacity evaluation (Doc. 15-16 at 54-57), in which he expressed his opinion that Plaintiff had experienced repeated episodes of decompensation of extended duration within the previous year. Id. at 54. Dr. Mobbs also identified the following symptoms of bipolar disorder and PTSD from which Plaintiff suffered: anhedonia
The ALJ did not specifically assign a weight to Dr. Mobbs' opinions, nor did she discuss the 20 C.F.R. § 404.1527 weighting factors. She did, however, determine that Dr. Mobbs' "assessment is not consistent with the overall evidence of record, his treatment records, and does not reflect moderate symptoms as suggested by the [GAF] score he afforded." [Doc. 15-4 at 14]. The ALJ went on to find that the opinions of the state agency doctors, Reed and Mellon, were "more consistent with the record as a whole" than was Dr. Mobbs' opinion, and gave the opinions of those non-examining doctors "more weight than [she gave] to the opinion of Dr. Mobbs." Id. In reaching this decision, the ALJ focused on only two perceived issues with Dr. Mobbs' assessment, consisting of a single minor internal inconsistency within the assessment itself, and Plaintiff's GAF score. Indeed, the ALJ appeared to consider the GAF scores assigned to Plaintiff over time to be by far the best evidence of the providers' assessment of Plaintiff's ability to function in a work environment. However, this approach to weighing medical evidence has been rejected by the Tenth Circuit. See Groberg v. Astrue, 415 F. App'x 65, 69 (10th Cir. 2011) (unpublished) (an ALJ's "naked reliance on the GAF score" ignores the source's narrative progress notes). Thus, "[a] single `good day' at the doctor's office does not necessarily signify the lack of any occupational effects from mental disorders." Groberg v. Astrue, 505 F. App'x 763, 769 (10th Cir. 2012) (unpublished).
Here, the ALJ acknowledged the fluidity of Plaintiff's GAF scores over time, but attributed the fluctuation of her scores to Plaintiff's own failure to take her medication. See, e.g., [Doc. 15-4 at 13] (noting that Plaintiff's low GAF scores "were assessed during psychiatric hospitalizations and episodes of mania" and "clearly demonstrate[] that the [Plaintiff] exhibits tendencies to get on and off her medications"). This is but one of many sweeping generalizations the ALJ made with respect to both Plaintiff's medical records and her "actual" day-to-day functionality. Such statements are without reference to the record and are generally in the nature of opinions. Such statements also fail to account for the inherently fluctuating functionality of someone who has been diagnosed with bipolar disorder. However, the ALJ's job is to collect, review, and analyze the medical evidence before her, not to act as a consulting medical source.
The ALJ also noted that Dr. Mobbs had checked "mild" with respect to Plaintiff's ability to carry out detailed instructions, while checking "moderate" with respect to her ability to carry out short, simple instructions. See [Doc. 15-4 at 14]. However, this apparent minor inconsistency may be wholly eliminated from Dr. Mobbs' opinion without in any way detracting from the opinion's impact, which is that Plaintiff has many moderate, marked, and even severe functional limitations. Specifically, if the two assessments regarding ability to carry out instructions are removed from the assessment, Dr. Mobbs' opinion would still indicate that Plaintiff has two moderate and one extreme limitation within the same category of "Sustained Concentration and Persistence." [Doc. 15-16 at 55]. Dr. Mobbs' assessment form includes four function categories that contain a total of 26 rated abilities. Out of the 24 remaining abilities, Plaintiff was assessed with "extreme" limitations in 3, "marked" limitations in 11, "moderate" limitations in 5, and "none" or "mild" in 5. Id. at 55-57. An apparent mix-up of two abilities (with ratings of mild and moderate, in any event), simply cannot justify disregarding the other 24 assessments, even when combined with what the ALJ deemed to be an "inconsistent" GAF score.
Dr. Mobbs' assessment of Plaintiff's work functionality was based on his extensive interaction with Plaintiff, his years of practice as a psychiatrist, and his unique position as a member of a team of mental health providers who had, for years, treated Plaintiff under vastly varying life circumstances. The ALJ's decision to simply disregard Dr. Mobbs' opinion in its entirety is not in any way supportable by the minimal and general factors she stated for doing so. Rejection of the only mental assessment provided by a treating specialist cannot be founded on global generalizations to the effect that his opinion is "not consistent with the overall evidence of record [and] his treatment records." If there are indeed actual conflicts between Dr. Mobbs' opinion and the voluminous mental health records that document Plaintiff's treatment at the University of New Mexico Mental Health Center, then the ALJ should certainly have discussed them in her decision. The fact that she did not is grounds for remand.
Plaintiff also contends that the ALJ failed to properly include certain elements of the opinions of the state agency consultative doctors when she endorsed their opinions. As already noted, an RFC assessment must be based on all of the relevant evidence in the record, and must include a narrative discussion describing how the evidence supports each conclusion. Soc. Sec. Rep. 96-8p at *5-7. The RFC assessment "must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved," and must always consider and address medical source opinions. Id. Because the whole record must be considered, the decision maker is prohibited from picking and choosing "among medical reports, using portions of evidence favorable to his position while ignoring other evidence." Carpenter, 537 F.3d at 1265 (citation and internal quotation marks omitted).
On March 30, 2011, Dr. Richard Reed, a psychologist, completed a mental RFC assessment of Plaintiff, based on a review of her medical records. [Doc. 15-16 at 40-43]. Similar to the assessment provided by Dr. Mobbs, Dr. Reed's assessment form contained four categories in Section I: Understanding and Memory; Sustained Concentration and Persistence; Social Interaction; and Adaptation. Dr. Reed's form contained twenty listed abilities to be assessed in Section I and, of those twenty, Dr. Reed indicated that Plaintiff was "moderately limited" in nine of them. Among the abilities in which Dr. Reed indicated Plaintiff had moderate limitations were the ability to "perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances" (id. at 40); 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" (id. at 41); to "ask simple questions or request assistance;" (id.) and to "maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness" (id.). In Section III, however, Dr. Reed's assessment indicated only that "[a]ssuming that the [Plaintiff] remains treatment compliant with her medications and follows through with her appointments, she is belived [sic] capable of the following: [Plaintiff] can understand, remember and carry out detailed but not complex work."
In response to Plaintiff's motion to remand, Defendant argues that the ALJ did not err by failing to include Dr. Reed's moderate limitations in her RFC because the Tenth Circuit does not require her to do so, citing Carver v. Colvin, 600 F. App'x 616 (10th Cir. 2015) (unpublished). [Doc. 25 at 11-12]. As Defendant points out, Carver states, relying on the Social Security Administration's Program Operations Manual Systems (hereinafter "POMS"), that "[t]he purpose of [S]ection I [of the mental RFC form]. . . is chiefly to have a worksheet to ensure that the psychiatrist or psychologist has considered each of these pertinent mental activities and the [Plaintiff]'s degree of limitation . . .
Id. (citations omitted) (some emphasis added). Thus, Dr. Reed should have discussed in his narrative all of the limitations he found Plaintiff to have in Section I, and the ALJ should likewise have discussed those limitations in connection with her evaluation of the medical evidence. As this was not the case, Dr. Reed's opinion cannot properly be considered substantial evidence that supports the ALJ's decision. Moreover, failure to fully account for all of Plaintiff's limitations leaves a significant gap in the ALJ's assessment of Plaintiff's work-related abilities, which requires a remand of this case for further consideration.
For the reasons stated above, the Court