GREGORY J. FOURATT, Magistrate Judge.
THIS MATTER is before the Court on Plaintiff's "Motion to Reverse or Remand the Administrative Decision" [ECF No. 18] and "Memorandum Brief in Support of Plaintiff's Motion to Reverse or Remand the Administrative Decision" (collectively, "Motion"),
Plaintiff was born on September 16, 1961, in Santa Fe, New Mexico. Administrative R. ("AR") 233-34. He attended school until the tenth grade but did not receive a diploma. AR 271. Plaintiff later obtained a General Educational Development ("GED") certificate while he was incarcerated. AR 85. Plaintiff's work history included employment as a prep cook, handyman, and auto mechanic. AR 85.
Plaintiff filed an application for Supplemental Security Income ("SSI") on November 27, 2012, alleging disability beginning on July 30, 2012, due to paranoid schizophrenia, bipolar disorder, anxiety disorder, and physical limitations stemming from back and right shoulder injuries. AR 238. The Social Security Administration ("SSA") denied Plaintiff's application initially on March 19, 2013 [AR 138], and upon reconsideration on July 19, 2013. AR 153. At his request, Plaintiff received a de novo hearing before ALJ John W. Rolfe on October 2, 2014, at which Plaintiff, his attorney, and a vocational expert ("VE") appeared. AR 81-119. On January 16, 2015, the ALJ issued his decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act ("the Act"). AR 60-73. Plaintiff appealed to the SSA Appeals Council ("Appeals Council"), but it declined review on June 27, 2016. AR 1-4. As a consequence, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2016).
Plaintiff timely filed his appeal in this Court on August 12, 2016. ECF No. 1.
Plaintiff advances five grounds for relief. First, he argues that the ALJ erroneously evaluated the medical evidence and misapplied relevant governing regulations. Pl.'s Mot. 6-9, ECF No. 19. Second, he contends the ALJ improperly assessed his limitations under the "paragraph B" criteria of the mental Listings of Impairments ("Listings"). Id. at 9-14. Third, Plaintiff alleges that the ALJ impermissibly failed to incorporate certain limitations into his residual functional capacity ("RFC"). Id. at 14-19. Fourth, Plaintiff claims that the ALJ's adverse credibility finding is fraught with legal error. Id. at 19-21. Lastly, he challenges the ALJ's step five findings. Id. at 20-24.
When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.
The factual findings at the administrative level are conclusive "if supported by substantial evidence." 42 U.S.C. § 405(g) (2012). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 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). 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; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. See 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)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ's legal decisions, the Court reviews "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases." Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed "to apply the correct legal standards, or to show . . . that she has done so." Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, 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. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
The SSA has devised a five-step sequential evaluation process to determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2016). At the first three steps, the ALJ considers the claimant's current work activity, the medical severity of the claimant's impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App'x 1. If a claimant's impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four and determines the claimant's RFC. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and mental demands of the claimant's past relevant work, and in the third phase, compares the claimant's RFC with the functional requirements of her past relevant work to determine if the claimant is still capable of performing her past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on the question of disability for the first four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to her past work, then the Commissioner bears the burden at the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).
The ALJ issued his decision on January 16, 2015. AR 57. At step one, he found that Plaintiff had not engaged in substantial gainful activity since the protective filing date
At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 63-65. The ALJ began with Plaintiff's physical impairments, and found that Plaintiff did not meet or medical equal Listing 1.02 for major dysfunction of a joint. To meet that Listing, Plaintiff would have had to establish that his back pain or shoulder pain resulted in "an inability to ambulate effectively" or the "inability to perform fine and gross movements effectively." AR 63. The ALJ addressed Plaintiff's back pain by noting that in his "Function Report — Adult," Plaintiff self-reported that "he does not require assistive devices to ambulate." AR 63 (citing AR 267). He further observed that during a consultative examination, Plaintiff "was able to get on and off the exam table without difficulty." AR 63 (citing AR 564). As to Plaintiff's shoulder injury, the ALJ recounted that Plaintiff does not "allege that he is unable to perform fine and gross movements effectively." AR 63. Additionally, the ALJ took account of Plaintiff's statement "that he has spent time working on cars, which requires fine and gross movement of the upper extremity." AR 63. Thus, because Plaintiff could ambulate independently and effectively perform relevant movements with his affected upper extremity, the ALJ found he did not meet or medically equal Listing 1.02.
Additionally, the ALJ considered Plaintiff's diabetes mellitus under Listing 9.00, which directed the ALJ to assess Plaintiff's condition under applicable listings for other body systems.
AR 63. The ALJ framed the discussion by stating, "[d]iabetes is not a listed impairment, however, its effects on other body systems, if sufficiently severe, may meet [L]istings for those body systems." AR 63. Upon review, the ALJ did not find the required severity of symptoms in any of Plaintiff's other body systems, and therefore, he found that Plaintiff's diabetes mellitus did not meet or medically equal Listing 9.00. AR 63.
The ALJ then turned to Plaintiff's obesity, which he pointed out "is not a listed impairment," but "may be found to equal a [L]isting, or alternatively, may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a [L]isting." AR 63 (internal citation and quotation marks omitted). He noted that "the record does contain references to [Plaintiff's] obesity," but also found that the record indicated Plaintiff "has been able to exercise frequently" and engage in activities "like walking around town with his wife." AR 63. As a consequence, the ALJ found that the effects of Plaintiff's obesity were not sufficiently severe to equal a Listing, nor did they increase the severity of any other impairment sufficiently to do the same. AR 63.
Next, the ALJ turned to Plaintiff's mental impairments, which the ALJ found did not meet or medically equal the criteria of Listing Sections 12.03 (schizophrenia spectrum and other psychotic disorders) or 12.06 (anxiety-related disorders). AR 63-65. The ALJ found that the paragraph B criteria of Listings 12.03 and 12.06
He then explained his reasoning regarding paragraph B's four subparts, beginning with activities of daily living. There, the ALJ found Plaintiff to have only a mild restriction. He stated at the outset that "Ms. Pollem and Ms. Heising
As to social functioning, the ALJ found Plaintiff to suffer moderate difficulties. By Plaintiff's account, "he did not spend time with others," and "did not like to deal with people." AR 64 (citing AR 265-66). The ALJ noted evidence to support Plaintiff's reporting, including Plaintiff's testimony concerning his anxiety and prior treatment records demonstrating that social interactions had both increased Plaintiff's anxiety and caused relapses into cocaine use. AR 64 (citing AR 723). But, the ALJ also found evidence that Plaintiff's social functioning is only moderately limited, including the facts that in 2013 and 2014: (1) he was reaching out to his church community, (2) spending time with his wife and niece; (3) spending time with his son; and (4) he attended a wedding, which "involves social interaction with multiple people." AR 64 (citations omitted). Treatment records produced in June and July of 2014 further bolstered a moderate finding, as providers at Albuquerque Healthcare for the Homeless had described Plaintiff as having "a lot of positive relationships" and rated his social functioning as "excellent." AR 64-65 (citing AR 706, 709) (internal quotation marks omitted).
Next, the ALJ turned to Plaintiff's concentration, persistence, and pace, and again found Plaintiff to have moderate difficulties. The ALJ first looked to the findings of consultative psychological examiner Amy S. Bernardi, Psy.D., who opined that Plaintiff's mental impairments "would likely impact his ability to follow complex instructions, be a dependable employee, or tolerate changes in the work environment." AR 65 (citing AR 570). He weighed this opinion against that of consultative examiner Raul Young-Rodriguez, M.D., who noted that Plaintiff "followed simple directions well." AR 65 (citing AR 565). The ALJ found the two opinions, when considered together, to direct a finding of moderate difficulties. AR 65.
The ALJ concluded his paragraph B discussion by finding that Plaintiff "has experienced no episodes of decompensation, which have been of extended duration." AR 65. That lack of decompensation also led the ALJ to find that "the evidence fails to establish the presence of the `paragraph C' criteria,"
Because none of Plaintiff's impairments satisfied an applicable Listing, the ALJ moved on to step four and assessed Plaintiff's RFC. AR 65-71. "After careful consideration of the entire record," the ALJ determined that "[Plaintiff] has the residual functional capacity to perform medium work" with the following limitations:
AR 65-66.
To develop Plaintiff's RFC, the ALJ relied on two principal grounds. First, the ALJ rendered an adverse credibility finding against Plaintiff, which he memorialized by finding that Plaintiff's "statements concerning the intensity, persistence[,] and limiting effects" of his symptoms were "not entirely credible." AR 67. To craft this finding, the ALJ considered Plaintiff's allegations concerning his mental impairments as well as those related to his physical limitations.
As to his mental limitations, the ALJ weighed Plaintiff's allegation that "he is unable to work due to physical and mental impairments," and considered Plaintiff's claim of "significant social anxiety . . . when he has to interact with other people." AR 66 (citations omitted). The ALJ similarly considered Plaintiff's assertions concerning his diminished ability to concentrate, including his self-reporting that: (1) his impairments interfere with his ability to complete tasks, concentrate, follow instructions, and get along with others; (2) he does not handle stress or changes in routine well; and (3) hears voices and sees shadows. AR 66 (citing 264-67). Then, he compared these allegations to the medical record and found the claims wanting. First, he questioned Plaintiff's schizophrenia diagnosis, noting that while Plaintiff claimed to have been diagnosed with the same by Dr. Tim McMurray, M.D., the relevant form did "not contain detailed comments regarding [Plaintiff's] impairments or limitations," and further, the form was only reviewed — rather than signed — by Dr. McMurray. AR 67 (citing AR 539-42). The ALJ also observed that in both October and November 2013, Plaintiff had reported to treating officials that he rarely if ever heard voices, and that the other schizophrenic symptoms he claimed were abating. AR 67 (citing AR 659, 661). Lastly, he noted that at Albuquerque Healthcare for the Homeless, where he was "most frequently" observed, the health care providers found him to be "psychiatrically stable," with "a lot of positive relationships" and "exhibiting no risks." AR 68 (citations omitted). These same providers also opined that Plaintiff needed no improvement in his activities of daily living, and that he had demonstrated excellent progress from 2013 to 2014. AR 68 (citations omitted). These records led the ALJ to conclude that Plaintiff's symptoms of mental impairment "are not as severe or frequent as alleged." AR 67.
The ALJ also assessed Plaintiff's reporting of his various physical impediments. Here, the ALJ considered Plaintiff's claims that "he can no longer swim because of his impairments," that his "back impairment makes it difficult to walk," and that he "cannot walk long before needing to stop and rest." AR 66 (citing AR 265-66). He further evaluated Plaintiff's specific allegations that "he can stand for only 15 to 20 minutes before needing to change positions," and that he can only lift five pounds, which at his administrative hearing, Plaintiff clarified to mean he could only lift five pounds with his right arm. AR 67 (citation omitted). The ALJ then turned to the record, where consultative examiner Dr. Raul Young-Rodriguez, M.D., noted that "the clinical medical evidence supported only mild-to-moderate limitation of activity involving the right shoulder and lumbar spine." AR 68 (citing AR 565). The ALJ emphasized that at that consultative examination, Plaintiff "was able to get on and off the exam table, up and out of the chair, and dress and undress himself without difficulty, except that [Plaintiff] seemed to have some difficulty with moving his right arm overhead." AR 68 (citing AR 564). The ALJ also observed that Plaintiff reported walking around town with his wife to collect boxes and cans, which he believed to indicate that Plaintiff "is able to lift and carry more than five pounds" as he alleged. AR 69. Lastly, he highlighted numerous mentions in the record of Plaintiff working on cars. AR 68 (citations omitted). Taken together, these facts led the ALJ to find Plaintiff's account of his physical symptoms to "be only partially credible." AR 68.
Following his credibility determination, the ALJ began to evaluate each medical opinion in turn. Specifically, the ALJ weighed four separate medical opinions — one from a consultative examining physician, one from a consultative examining psychologist, and two from non-medically acceptable sources at Albuquerque Healthcare for the Homeless.
The ALJ accorded great weight to the opinion of consultative examiner Dr. Raul Young-Rodriguez, M.D. Dr. Rodriguez examined Plaintiff on March 7, 2013, and chronicled Plaintiff's claims of severe physical impairments, which included the inability to: (1) lift more than five pounds; (2) stand for more than two hours during an eight-hour workday, (3) walk more than three blocks without stopping and resting; and (4) sit for more than one hour. AR 69 (citing AR 564). Dr. Rodriguez reviewed the medical evidence in Plaintiff's file, and opined that the evidence supported only mild or moderate limitations of activity involving Plaintiff's spine and right shoulder. AR 69 (citing AR 565). He observed that Plaintiff "was able to get on and off the exam table, up and out of a chair, and dress and undress himself without difficulty," but that he "seemed to have some difficulty with moving his right arm overhead." AR 69 (citing AR 564). The ALJ reasoned that Dr. Young-Rodriguez's opinion drew support from the record, including Plaintiff's "reports that he remained active daily by engaging in activities like walking around town with his wife and picking up boxes and cans to turn in for recycling." AR 69 (citing AR 701). Additionally, the ALJ found the opinion to "supported by reports in the record of the claimant exercising and working on cars." AR 69 (citing AR 655-56).
The ALJ assigned "little weight" to the opinion of consultative examining psychologist Amy S. Bernardi, Psy.D., who examined Plaintiff on February March 7, 2013. AR 69. Dr. DeBernardi opined that Plaintiff was most likely unable to work at the time and explained that Plaintiff's symptoms of mental impairments "would likely impact his ability to follow complex directions, be a dependable employee, or tolerate changes in the work environment." AR 70 (citing AR 570). The ALJ particularly noted that Dr. Bernardi assigned Plaintiff a Global Assessment of Functioning ("GAF")
The ALJ also accorded little weight to the opinions of Asha Pollem, a psychiatric-mental health nurse practitioner ("PMHNP") who treated Plaintiff on multiple occasions from 2012 to 2014. AR 70. At the outset, the ALJ observed that Ms. Pollem did not qualify as an acceptable medical source, and therefore, he stated that he would consider her opinion as that of an "other source" under relevant regulations. AR 70; see 20 C.F.R. § 416.913 (2014)
The ALJ compared Ms. Pollem's opinions against her treatment records and found them "to be inconsistent," which rendered the opinions "less persuasive." AR 70. He cited to multiple instances in the record where Ms. Pollem observed that Plaintiff: (1) did "get out of the house and interact with others with some regularity (December 9, 2013);" (2) was "overall functioning well" (June 30, 2014); (3) had "a lot of positive relationships" (same date); and (4) was stable psychiatrically and exhibiting no risks. (same date). AR 70 (citing AR 653, 709). In the ALJ's opinion, these statements did "not support Ms. Pollem's opinion statement that claimant had marked restrictions in activities of daily living, marked difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence or pace." AR 70. (citing AR 695). As a result, the ALJ accorded Ms. Pollem's opinions little weight.
Ms. Amara Heising completed a questionnaire concerning Plaintiff's mental impairments on October 2, 2014. AR 71 (citing AR 734-40). Therein, she opined that Plaintiff "had marked restrictions in activities of daily living, marked difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence or pace." AR 71 (citing AR 738). She additionally concluded that Plaintiff had suffered four or more periods of decompensation, each of extended duration. AR 71 (citing AR 738). The ALJ noted, however, as with Ms. Pollem's opinion, that Ms. Heising's opinion was "inconsistent with other reports made by her," and therefore "rendered less persuasive." AR 71. He explained that "[c]ontrary to Ms. Heising's opinion statement, on May 20, 2014, Ms. Heising reported that [Plaintiff's] depression, anxiety, and paranoia had significantly improved, and that [Plaintiff] believed in his ability to care for himself." AR 71 (citing AR 711). Additionally, he highlighted Ms. Heising's notes of July 31, 2014, wherein she assigned Plaintiff the highest possible scores in activities of daily living and social function, while describing Plaintiff's functioning in these areas as "excellent" and not requiring improvement. AR 71 (citing AR 706). These notes echoed Ms. Heising's statement that Plaintiff had made "excellent progress over the last year." AR 71 (quoting AR 703). Lastly, the ALJ considered that Ms. Heising had assigned Plaintiff a GAF score of 55, which although not dispositive, was also "not consistent with the limitations" contained in her opinion. In the aggregate, these inconsistencies led the ALJ to discount Ms. Heising's opinion and assign it little weight. AR 71.
In the second phase of step four, the ALJ identified past relevant work as a cook's helper and as an auto mechanic's helper. AR 71. Then, at the third and final phase of step four, the ALJ found that Plaintiff could not return to any of these three instances of past relevant work, as their demands exceeded the RFC he had prescribed. AR 71.
At step five, the ALJ relied on the testimony of the VE to determine what jobs, if any, Plaintiff could still perform. Based on Plaintiff's age, education, work experience, and RFC, the ALJ found that Plaintiff could perform other jobs that exist in significant numbers in the national economy. AR 72-73. These jobs, as described by the VE, Nicole King, included assembler, Dictionary of Occupational Titles ("DOT")
After the ALJ denied the claims, Plaintiff submitted additional evidence to the Appeals Council. See AR 2, 5. The Appeals Council accepted certain evidence, which pre-dated the ALJ's decision, and made it part of the record. AR 5, 357-75, 741-51. Nevertheless, the Appeals Council found that it "[did] not provide a basis for changing the [ALJ]'s decision." AR 2. The evidence that post-dated the ALJ's decision, however, was not made part of the record. See AR 5, 7-52. The Appeals Council found that the "new information [was] about a later time," and therefore, did "not affect the [ALJ's decision]." AR 2. Remaining unpersuaded, the Appeals Council denied Plaintiff's request for review on June 27, 2016. AR 1-4.
The Court's review of this case has been made manifestly more difficult by the parties' failure to directly address a critical issue: whether this Court may consider at all the opinions of clinical nurse specialist ("CNS") Cristina Carlson. Nurse Carlson completed a questionnaire on Plaintiff's mental impairments on December 2, 2015, almost eleven months after the ALJ's decision. See generally Pl.'s Mot. 6-23. Virtually throughout his Motion, Plaintiff urges the Court to consider the merits of Nurse Carlson's opinions in furtherance of his position that the ALJ erred. Indeed, Plaintiff cites to this new evidence no less than twelve (12) times in his Motion. See id. at 2, 8, 9, 11, 13, 16, 22. But Plaintiff does so despite the Appeals Council having refused to make Ms. Carlson's opinion part of the record, see AR 5, and despite the Appeals Council having found that Ms. Carlson's opinion was "about a later time." AR 2. Although Plaintiff has enumerated five separate points of alleged error in his Motion, he at no point contends explicitly that the Appeals Council erred in refusing to accept and consider Nurse Carlson's opinions. His brief is silent on that point. Nevertheless, Plaintiff overtly and repeatedly invites this Court to consider Nurse Carlson's opinions as part of its substantial evidence and legal error review in four of his five claims. See generally Pl.'s Mot. 6-23.
The Court fully expected the Commissioner to object to the Court considering Nurse Carlson's opinions at all, given that Plaintiff did not allege as a point of error that the Appeals Council improperly refused to accept the opinions as part of the record. But the Commissioner did not object. Instead, the Commissioner did exactly as Plaintiff did — which is to consider Nurse Carlson's opinions just as if they were a proper part of the record — by responding to Plaintiff's arguments through citation to Ms. Carlson's opinion. See Def.'s Resp. at 6, 13. In electing not to object and instead arguing the merits and weight of Nurse Carlson's opinions, the Commissioner has waived her ability to contest the admissibility of this new evidence.
To repeat, the Commissioner could have objected to the mere mention of Ms. Carlson's opinion, as it likely would not otherwise have been properly before this Court because it was not made part of the record. Rather than objecting, however, the Commissioner has joined Plaintiff in debating Nurse Carlson's opinions and advancing them for this Court's review. But the merits of her opinions have never been weighed before and, despite the parties' desire for it to do so, the Court recognizes that it is barred from weighing new evidence in the first instance. See Chambers v. Barnhart, 389 F.3d 1139, 1143 (10th Cir. 2004) (reserving to the agency the authority to weigh new evidence in the first instance). Regulations quite properly reserve that function to the agency. As the Commissioner has now abandoned the Appeals Council's decision that Nurse Carlson's opinions should not be part of the record and argued instead for the consideration (and implicit rejection) of those opinions, the Court concludes that the agency must be afforded the opportunity, on remand, to assign to Nurse Carlson's opinions the appropriate weight and fashion a decision that incorporates the same. Therefore, the Court must reverse and remand the ALJ's decision for further consideration of Ms. Carlson's opinion.
For the reasons articulated above, the instant matter shall be remanded to the Social Security Administration for consideration of the new evidence that both Plaintiff and the Commissioner now deem to be appropriately included in the record.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, § 9.00(B)(5) (2017).
Id. §§ 12.03(B), 12.06(B) (2014). On March 27, 2017, the SSA significantly altered the language of these Listings.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, §§ 12.03(C), 12.06(C).
Id.
