Hernandez v. Berryhill

Filing 21

MEMORANDUM AND ORDER - IT IS ORDERED: The plaintiff's motion to reverse (Filing No. 14 ) is granted. The defendant's motion to affirm (Filing No. 17 ) is denied. The decision of the Commissioner is reversed. This action is remanded to the Social Security Administration for an award of benefits. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

NIKKI J. HERNANDEZ,
Plaintiff,

8:18CV274

vs.
MEMORANDUM AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Defendant.

This is an action for judicial review of a final decision of the Commissioner of the
Social Security Administration (“the Commissioner”). Filing No. 1. The claimant, Nikki J.
Hernandez, appeals the Commissioner’s decision to deny her application for Social
Security Disability (“Disability”) and Supplemental Security Income (“SSI”) benefits under
Titles II and XVI of the Social Security Act and seeks review pursuant 42 U.S.C. § 405(g),
see Filing No. 14 (Plaintiff’s Motion for an Order Reversing the Commissioner’s Decision)
and Filing No. 17 (Defendant’s Motion for an Order Affirming the Commissioner’s
Decision). A transcript of the hearing held on May 26, 2017, is found in the record at
Filing No. 10-3. This Court has jurisdiction under 5 U.S.C. §§ 702 and 706 to review the
final decision.
BACKGROUND
I.

Procedural History

Hernandez filed an application for disability and SSI on January 22, 2015. She
alleges disability due to depression, anxiety, multi-joint osteoarthritis, degenerative joint
disease in the knees, and obesity. Filing No. 1. Her Form SSA-3368 Disability Report

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alleges disability based on depression, arthritis, fluid in her legs, and memory loss. Filing
No. 10-7, 236. The Commissioner denied her claims on July 9, 2015 and again upon
reconsideration on August 11, 2015.

After a hearing on May 26, 2017, with an

Administrative Law Judge (“ALJ”), Hernandez was further denied benefits and held not
disabled on September 6, 2017. The Appeals Counsel denied review on April 17, 2018.
Hernandez seeks review of the ALJ’s order denying benefits.
II.

Testimony from ALJ Hearing

Ms. Hernandez was born on April 30, 1980. She has an eighth-grade education
and has had numerous jobs of short duration. Filing No. 10-3, at 82. The ALJ concluded
that Hernandez had not engaged in substantial gainful activity (“SGA”) since January 22,
2015. Filing No. 10-2, at 17. At the hearing on May 26, 2017, Hernandez testified that
she had tried to get a GED but failed due to her inability to do simple math. Filing No. 103, at 85-86. She agreed that she tried several jobs but testified that none of them lasted
long due to her physical and psychological problems. Id. at 86. Hernandez affirmed that
she had never made more than $1,000 a month at any job. Id. at 87. She testified that
the physical tasks of her prior jobs were too hard and caused her body and legs to hurt.
Id. at 87-88. Specifically, she testified that she could not stand long and would have to
go home due to the pain. Id. at 88.
In addition to leg pain, Hernandez testified that she has pain in her knees, with
her right knee being worse than her left. Id. at 90. She stated that the pain makes it hard
for her to go up and down stairs, and she cannot stand in the shower, and she has
difficulty standing up after sitting in the shower. Id. at 91. Hernandez testified that knee
replacement surgery had been discussed with her. Id. However, she stated she is not

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qualified for the surgery because she is too young. Id. Hernandez further testified that
her feet and ankles swell and must be soaked, iced and heated, and elevated. Id. at 91–
92.

She testified that the pain and swelling throughout her body is attributed to

osteoarthritis and deteriorating joint disease. Id. at 90–91. According to Hernandez, the
physical pain she experiences in her legs, knees, ankles, and feet require her to spend
“a lot” of the day (somewhere between “[h]alf of it” and a “[m]ajority” of it), sitting with her
feet elevated. Id. at 92. Hernandez stated that due to her legs “lock[ing] up” she needs
to move frequently. Id.
Hernandez testified that the osteoarthritis and deteriorating joint disease has
spread to her elbows. Id. at 92-93. She affirmed that her elbow problems would affect
her ability to reach and pull. Id. at 93. Hernandez testified that she has sciatica and lower
back pain which runs down her legs. Id. at 93. She stated that the pain contributed to
her problems with walking and standing. Id. at 93-94.
Overall, Hernandez testified that she could walk about 5-10 minutes, stand for 15
minutes and comfortably sit for 20-30 minutes before her legs would lock up. Id. at 94.
She testified that the pain occurs “all the time” and on really bad days, she cannot
accomplish anything or go to work or any doctor’s appointments. Id. at 95-96. During the
hearing Hernandez asked whether she would be able to stretch. Id. at 104.
With regards to her psychological limitations, Hernandez testified that being
around people makes her anxious. Id. at 98. Hernandez stated that there were times
when she would go to the store and have to leave the store due to her anxiety. Id. This
anxiety occurred while she was working also. Id. at 86. She testified that she would get

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frustrated and would have to go outside or go to the bathroom because it would be hard
for her to breathe. Id. at 86-87.
When asked about her work speed and productivity compared to other workers,
Hernandez responded that “[I]t was a problem.” Id. at 87. When asked about whether
she could follow written instructions, Hernandez stated that she would need someone to
be hands-on with her. Id. at 87. When she was given instructions, she testified that she
would sometimes have difficulty following the instructions because she would lose
concentration. Id. Hernandez stated that she could only “sometimes” watch a 30-minute
television show and she cannot concentrate on reading. Id. at 99-100.
In addition to anxiety and problems focusing, Hernandez stated that she suffers
from depression and has crying spells a couple times a week. Id. at 98-99. She stated
that the crying spells can be short or last all day. Id. at 99. She further stated that on
days when she has an all-day crying spell, she has no energy at all. Id. at 99. In sum,
Hernandez testified that about three times a week she does not interact with anyone and
lays down and cries. Id. at 101.
Hernandez testified that she was not seeing a psychologist or psychiatrist, but her
primary nurse practitioner, Julie Nieveen, treats her for her mental health. Id. at 96-97.
Hernandez stated that she was prescribed Ativan and Sertraline for her depression and
anxiety. Id. According to Hernandez, Nieveen recommended she be treated by a mental
health professional. Id. at 97.
Hernandez testified that in 2016 she worked at McDonald’s for 3-4 months. Id. at
87. She testified that she began working full-time and then was reduced to part-time due
to her leg pain. Id. at 87-88. She testified that she was fired because she missed work,

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and she was unable to work the hours that were needed. Id. at 89. Hernandez testified
that job attendance was a regular problem at other jobs and she was fired from other jobs.
Id. She stated that she was fired from Subway because she failed to come in to a shift
due to leg pain. Id. at 90.
When asked whether she could work if she did not have any mental anxiety issues,
and only physical problems, Hernandez responded “No.” Id. at 101-02. Similarly, when
asked whether she could work if she did not have any physical problems, but only mental
problems, Hernandez responded that she would not be able to work. Id. at 102.
III.

Medical Evidence

Hernandez’s Nebraska Medical Center health records reflect, among other things,
diagnoses of recurrent depression, anxiety, arthritis, hypertension, bilateral chronic knee
pain, bilateral elbow joint pain, chronic left shoulder pain, degenerative joint disease. See
Filing No. 10-8, at 359-60; Filing No. 10-9, at 411-12, 419, 447, 462-64, 471-72.
Throughout 2014, she presented to Nebraska Medical Center at least four times with
symptoms of low back pain, obesity, abdominal pain, flank pain and chronic bilateral knee
pain. Filing 10-8, at 321-48.
In April of 2015, while attending a follow-up appointment with her general nurse
practitioner, Julie Nieveen, for her chronic knee pain, depression and anxiety, Hernandez
reported “sadness, tearfulness, difficulty falling asleep, self[-]isolation.” Id. at 358. It was
noted that her mood began to worsen after her boyfriend was murdered in 2013. Id. A
Patient Health Questionnaire-9 (“PHQ-9”) screening classified Hernandez as having
moderate depression with a score of 141. Id. In July of 2015 an x-ray of her knee showed

The Patient Health Questionnaire-9 (“PHQ-9”) is a multipurpose questionnaire to screen, diagnose, monitor and
measure the severity of depression. The score ranges include:
1

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severe degenerative joint disease. Filing No. 10-9, at 426-28. At the appointment she
was referred to orthopedics and counseled that she probably would need a knee
replacement. Id.
In January of 2016, at a follow up appointment for her chronic bilateral knee pain,
she reported sadness. Id. at 460. A second PHQ-9 screening classified Hernandez as
having mild depression with a score of 5. Id. at 460-61. In May of 2016, Hernandez
presented to the Nebraska Medical Center with left elbow pain. Id. at 433-36. The
medical report diagnosed her with mild left elbow degenerative joint disease. Id. at 43435. In October of 2016, Hernandez was diagnosed by Nieveen with hypertension,
osteoarthritis of both knees, chronic bilateral elbow pain, and chronic left shoulder pain.
Id. at 470-72. Her diagnoses of anxiety, depression, hypertension, and chronic bilateral
knee pain due to degenerative joint disease were again discussed in January of 2017.
Id. at 455.
IV.

Medical Opinions

On April 19, 2017 Hernandez presented for a psychological consultative
examination with Dr. Beverly A. Doyle after being referred there by her attorney. Filing
No. 10-10, at 475-78. Dr. Doyle diagnosed Hernandez with Major Depression (chronic,
moderate), posttraumatic stress disorder (“PTSD”), and gave her a GAF score of 45. Id.
With regards to Hernandez’s ability to work, Dr. Doyle determined that Hernandez
exhibited “Marked Limits (Poor Functioning)” with regards to her ability to “Perform at a
consistent pace without unreasonable number and length of rest periods” and “Work in
1-4 Minimal Depression
5-9 Mild Depression
10-14 Moderate Depression
15-19 Moderately Severe Depression
20-27 Severe Depression.

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coordination and proximity to others.” Id. at 482-85. Functionally, Dr. Doyle noted that
Hernandez would have extreme difficulties in maintaining social function, and maintaining
concentration, persistence or pace. Id. at 483. Dr. Doyle noted that Hernandez would be
off task or unable to work at a competitive pace for more than 20% of an 8-hour work day.
Id. at 484. Finally, Dr. Doyle stated that Hernandez’s impairments or treatments would
cause her to be absent from work more than 4 days per month. Id. Dr. Doyle reported
Hernandez as having a GAF2 score of 45. Id. at 476-77.
On June 30, 2015 Hernandez presented for a psychological consultative
examination with Dr. A. James Fix.3 Filing No. 9, at 415-20. Dr. Fix noted that Hernandez
has restrictions on activities of daily living, and difficulties in maintaining social functioning.
Id. at 415. Dr. Fix also stated that Hernandez is unable to sustain concentration and
attention needed for task completion, noting that this ability was “mildly impaired” on the
date of examination. Id. Dr. Fix stated that Hernandez was only “marginally” able to
relate appropriately to co-workers and supervisors.

Id.

During the examination,

Hernandez was able to add 2+2+2 and multiply 3x3, but unable to multiply 3x3x3. Id. at
419. According to Dr. Fix, Hernandez “gave up easily on serial 7’s and did not accomplish
any of those, although [Dr. Fix’s] impression was she probably could have done some of
them.” Id. Dr. Fix stated that Hernandez seemed to function on the “low average area of

The Global Assessment of Functioning (“GAF”) score is the clinician’s judgment of the individual’s overall level
of functioning. See Diagnostic and Statistical Manual of Mental Disorders, DSM–IV-TR, 32 (4th ed. 2000). A
GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job). Id. at 34. A new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) was
released in 2013 and replaced the DSM-IV. The DSM-V “no longer uses GAF scores to rate an individual’s level
of functioning because of ‘its conceptual lack of clarity’ and ‘questionable psychometrics in routine practice.’”
Alcott v. Colvin, No. 4:13-CV-01074-NKL, 2014 WL 4660364, at *6 (W.D. Mo. Sept. 17, 2014).
3
Hernandez was referred to Dr. Fix through the Disability Determination Services of the State of Nebraska,
Department of Education Division of Rehabilitation Services.
2

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intellectual ability” but “some of her capacity is lost by emotional interference.” Id. Dr. Fix
reported Hernandez as having a GAF score of 45, with a high of 60. Id.
The combined reports of the clinical psychologists suggest that Hernandez’s
depression and PTSD is linked to several different stressors. See Filing No. 10-8, at 358;
Filing No. 10-9, at 417; Filing No. 10-10, at 475. First, there are significant instances of
physical violence in her past. Psychologist A. James Fix reported that Hernandez had
been raped at gunpoint at age 14. Filing No. 10-9, at 417. Psychologist Beverly A. Doyle
reported that Hernandez had been raped twice. Filing No. 10-10, at 475. She has also
been abused by at least one domestic partner. Filing No. 10-10, at 417 (noting abuse by
one domestic partner); Filing No. 10-10, at 475 (noting abuse by two domestic partners).
Second, in approximately 2013 she suffered the loss of her fiancé/boyfriend when he was
murdered. Filing No. 10-8, at 358; Filing No. 10-9, at 417. Third, she reports stress due
to losing her children to the State. Filing No. 10-9, at 417.
On June 30, 2015 Hernandez also presented for a medical examination with Dr.
Samuel E. Moessner.4 Filing No. 10-9, at 400-13. Dr. Moessner’s impressions included
obesity, degenerative joint disease, anxiety, depression, a history of polysubstance abuse
and plantar fasciitis with bilateral heel spurs, a history and possible findings of a right
lateral retinal detachment, and status post appendectomy, status post salpingectomy, and
status post dilation and curettage of the uterus on several occasions. Filing No. 10-9 at
411. Dr. Moessner stated that Hernandez was living with her sister at the time, and
between the two of them, they could manage to provide safekeeping for any disability
benefits that would be granted to Hernandez. Id. at 412.

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Hernandez was referred to Dr. Moessner through the Disability Determination Services of the State of
Nebraska, Department of Education Division of Rehabilitation Services.

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A. Consultative Examinations
Two Social Security consultants, Patricia Newman, Ph. D., and Lee Branham,
Ph.D., also offered opinions. Dr. Branham and Dr. Newman found that Hernandez would
only marginally be able to relate appropriately to other people. Filing No. 10-4, at 121,
136. They noted that there were significant symptoms of depression and PTSD. Id. at
120, 136.
Additionally, Dr. Newman and Dr. Branham found that Hernandez appeared to
function in the low average area of intellectual ability and would have limitations in regard
to her ability to adapt. Id. at 121, 137. Both further noted that Hernandez would have
limitations with regard to sustaining concentration and persistence. Id. at 121, 136.
Finally, Dr. Newman and Dr. Branham found that Hernandez was capable of sedentary
work, and she did not satisfy the criteria of “paragraph B” or “paragraph C” for mental
disability. Id. at 116, 122, 130-32.
V.

The ALJ’s Findings

The ALJ found that Hernandez is not under a disability as defined in the Social
Security Act. Filing No. 10-2, at 15. The ALJ undertook the familiar five step sequential
process for analyzing and determining disability. Id. at 15-26. The ALJ found that
Hernandez has not engaged in substantial gainful activity since January 22, 2015, the
application date. Id. at 17. The ALJ agreed with the finding that Hernandez suffers from
depression, anxiety, history of polysubstance abuse (in recent remission), multi-joint

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osteoarthritis, degenerative joint disease in the knees and obesity, and that all of these
impairments are severe. Id.
The ALJ concluded that Hernandez’s physical impairments do not meet or
medically equal the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). Id. at 18. The ALJ found that
Hernandez was able to ambulate effectively under section 1.00B2b, did not have a
compromised nerve root or spinal cord under section 1.04, and failed to meet the
requirements for arthritis under 14.09. Id. at 18. With regards to her mental impairments,
the ALJ found that they did not individually nor in combination meet or medically equal
the criteria listings of 12.04 (affective disorders) and 12.06 (anxiety-related disorders). Id.
at 19. The ALJ concluded that Hernandez did not satisfy “paragraph B” criteria and found
that Hernandez only has moderate limitations.

Id. at 19-20.

The ALJ noted that

Hernandez was cooperative and oriented in all spheres during her examinations and that
she has normal mood and affect. Id. at 19. The ALJ cited one Nebraska Medical Center
record which found her negative for dysphoric mood, not nervous and not anxious. Filing
No. 10-8, at 325.

The ALJ found that Hernandez had moderate limitations in

understanding, remembering or applying information, and moderate limitations with
interacting with others. Filing No. 10-2, at 19. Citing to Hernandez’s statement that she
could sometimes concentrate enough to watch a 30-minute television show, the ALJ
found that she only had moderate limitations with regards to concentrating, persisting or
maintaining pace. Id.
The ALJ determined that Hernandez had residual functioning capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 416.967(a) except she could occasionally

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push and pull 10 pounds.

Id. at 20.

Additional limitations include: no more than

occasional balancing, kneeling, stooping, crouching, crawling, and climbing ramps and
stairs; never climbing ladders, ropes, or scaffolds; never being exposed to vibrations or
workplace hazards like moving mechanical parts or unprotected heights; no more than
accessional pushing, pulling, and operating foot controls with lower extremities; no more
than simple, unskilled instructions and tasks; no more than occasional interactions with
coworkers, supervisors, and the public; no more than occasional changes in the
workplace environment; and no fast-paced, assembly-line, or high production quota work.
Id.
The ALJ granted great weight to the opinions of Dr. Newman and Dr. Branham,
who found that Hernandez had no significant limitations with regards to her ability to follow
simple questions, request assistance, and get along with coworkers or peers. Id. at 2223. On the other hand, the ALJ granted little weight to Dr. Doyle because her assessment
was “not based on any objective medical evidence.” Id. at 23. The ALJ found that Dr.
Doyle’s findings that Hernandez had a GAF score of 45 was inconsistent with the
evidence that Hernandez was able to live independently. Id. Additionally, the ALJ granted
partial weight to Dr. Fix’s assessment. Id. This was largely due to Dr. Fix stating
Hernandez had a GAF score of 45, but that it could be as high as 60. Id.
After weighing this information, the ALJ found that Hernandez’s statements
concerning the intensity, persistence, and limiting effects of her medical symptoms are
not entirely consistent with the medical evidence and the evidence on the record. Id. at
24. As such, the ALJ found that Hernandez was not precluded from work within the
described RFC. Id.

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The ALJ found that Hernandez was capable of working as a document preparer,
an addresser, or a cutter/paster. Id. at 25.

This determination was based on the

hypothetical questions presented to the vocational expert and considered Hernandez’s
age, education, work experience, and RFC. Id. As such, the ALJ determined that
Hernandez had not been under a disability since January 22, 2015, the date her disability
application was filed. Id. at 26.
STANDARD OF REVIEW
This Court’s review is limited to an inquiry into whether there is substantial
evidence on the record to support the findings of the ALJ and whether the ALJ applied
the correct legal standards. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011); Lowe
v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). Substantial evidence means something less
than a preponderance of the evidence, but more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.

Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) (quoting Lewis v.

Barnhart, 353 F.3d 642, 645 (8th Cir. 2003)); Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229
(1938)).

However, this “review is more than a search of the record for evidence

supporting the [Commissioner’s] findings,” and “requires a scrutinizing analysis.” Scott
ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008).
DISCUSSION
I.

Appointments Clause
Hernandez argues that the ALJ was an inferior officer who was not appointed in a

constitutional manner. Filing No. 14-1, at 18. Under the theory that the ALJ was not

12

correctly appointed, Hernandez states that the ALJ’s decision must be vacated and her
claim must be remanded and heard by a new ALJ. Id. The Commissioner argues that
Hernandez’s appointments clause claim is untimely because it was not raised during her
initial application for benefits, on reconsideration, in her hearing with the ALJ or before
the Appeals Council. Filing No. 18, at 12. In response, Hernandez argues that her claim
is timely, and even if it were not timely, the Court should exercise its authority of
discretionary review and find the ALJ was improperly appointed. Filing No. 14-1, at 1924.
The Court finds that Hernandez’s argument that the ALJ was an inferior officer not
appointed in a constitutional manner is untimely. While Hernandez argues that the claim
was not forfeited or waived even though it was not presented to the ALJ or the Appeals
Counsel, this argument is unpersuasive.
As the Commissioner argues, a constitutional challenge under the Appointments
Clause is “nonjurisdictional” and therefore forfeited when it was not raised during the
administrative process. As stated by the Commissioner, multiple district courts have held
that a challenge to the appointment of an ALJ must be raised in the administrative
proceedings to preserve it for judicial review. Stearns v. Berryhill, No. C17-2031-LTS,
2018 WL 4380984, at *6 (N.D. Iowa Sept. 14, 2018) (holding an Appointments Clause
claim was forfeited because it was not raised before or during the ALJ’s hearing, or any
time before the ALJ’s decision became final); Page v. Comm’r of Soc. Sec., No. 17-13716,
2018 WL 5668850, at *3 (E.D. Mich. Oct. 31, 2018) (denying a motion for leave to amend
a complaint to challenge the appointment of a ALJ because it was not timely challenged);
Williams v. Berryhill, No. 2:17-cv-87-KS-MTP, 2018 WL 4677785, at *2 (S.D. Miss. Sept.

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28, 2018) (holding that an Appointments Clause claim was waived because it was not
raised before the agency); Hugues v. Berryhill, No. CV17-3892-JPR, 2018 WL 3239835,
at n.2 (C.D. Cal. July 2, 2018) (holding that the Appointments Clause claim was waived
because it was not raised during the administrative proceedings); Garrison v. Berryhill,
No 1:17-cv-00302-FDW, 2018 WL 4924554, at *2 (W.D.N.C. Oct. 10, 2018) (holding that
the Appointments Claim was forfeited because it was not raised during the administrative
proceeding); Davidson v. Comm’r of Soc. Sec., No. 2:16CV00102, 2018 WL 4680327, at
*2 (M.D. Tenn. Sept. 28, 2018) (same); see also Blackburn v. Berryhill, No. 0:17-120DCR, 2018 WL 5085759 (E.D. KY. Oct. 18, 2018) (noting an appointments clause claim
was denied).
The Court finds the Commissioner’s argument persuasive. The general rule is that
an Appointment Clause challenge must be raised during the administrative proceeding.
See e.g. generally Stearns, No. C17-2031-LTS, 2018 WL 4380984, at *6.

As a

“nonjurisdictional” issue, an Appointment Clause challenge is within the court’s discretion
to consider. Fretay v. C.I.R., 501 U.S. 868, 879 (1991). However, it is a “rare case” when
a court decides to consider an untimely Appointment Clause challenge. Id. at 879. The
Supreme Court made it clear that in using its discretion to hear an untimely Appointment
Clause challenge, Fretay was an exception to the common rule that all issues and
objections by a litigant must be raised at trial. Id. This rule is reinforced by Lucia v.
S.E.C., 138 S.Ct. 2044, 2055 (2018), in which the Court states that only “one who makes
a timely challenge” is entitled to relief (quoting Ryder v. United States, 515 U.S. 177, 182183). Hernandez has failed to demonstrate why her case should be the exception to the
common rule.

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II.

Disability Decision
A. Sequential Analysis
To determine whether a claimant is entitled to disability benefits, the ALJ performs

a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At step one, the claimant
has the burden to establish that she has not engaged in substantial gainful activity since
her alleged disability onset date. Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013).
At step two, the claimant has the burden to prove she has a medically determinable
physical or mental impairment or combination of impairments that significantly limits her
physical or mental ability to perform basic work activities. Id. At step three, if the claimant
shows that her impairment meets or equals a presumptively disabling impairment listed
in the regulations, she is automatically found disabled and is entitled to benefits. Id. If
not, the ALJ determines the claimant's RFC, which the ALJ uses at steps four and five.
20 C.F.R. § 404.1520(a)(4).
A claimant's RFC is what she can do despite the limitations caused by any mental
or physical impairments. Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014); 20 C.F.R.
§ 404.1545. “The ALJ must determine a claimant’s RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of [her] limitations.” Papesh v. Colvin, 786 F.3d 1126, 1131
(8th Cir. 2015). The RFC must give appropriate consideration to all of a claimant’s
impairments and be based on competent medical evidence establishing the physical and
mental activity that the claimant can perform in a work setting. Mabry v. Colvin, 815 F.3d
386, 390 (8th Cir. 2016).

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At step four, the claimant has the burden to prove she lacks the RFC to perform
her past relevant work. Cuthrell, 702 F.3d at 1116. If the claimant can still do her past
relevant work, she will be found not disabled; otherwise, at step five, the burden shifts to
the Commissioner to prove, considering the claimant's RFC, age, education, and work
experience, that there are other jobs in the national economy the claimant can perform.
Id.; see Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).
B. Treating Sources
The ALJ must give “controlling weight” to a treating physician's opinion if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence.” Papesh, 786 F.3d at 1132. Even if
not entitled to controlling weight, a treating physician’s opinion should not ordinarily be
disregarded and is entitled to substantial weight. Id. The regulatory framework requires
the ALJ to evaluate a treating sources’ opinion in consideration of factors such as length
of treatment, frequency of examination, nature and extent of the treatment relationship,
support of opinion afforded by medical evidence, consistency of opinion with the record
as a whole, and specialization of the treating source. Id.; see 20 C.F.R. 404.1527(c)(2).
“When an ALJ discounts a treating [source’s] opinion, he should give good reasons for
doing so.” Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007); Jenkins v. Apfel, 196
F.3d 922, 924–25 (8th Cir. 1999) (stating the ALJ may discount or disregard such an
opinion if other medical assessments are supported by superior medical evidence, or if
the treating physician has offered inconsistent opinions).
The ALJ erred by granting little, or partial weight to Dr. Doyle and Dr. Fix. Filing
No. 10-2, at 23. The ALJ granted little weight to the opinion of Dr. Doyle, stating that her

16

assessment was not based on any objective medical evidence but rather Hernandez’s
“subjective rendition of limitations.” Id. Despite the alleged subjectivity of Dr. Doyle’s
analysis, her diagnoses match that of almost every other health provider’s general
assessment of Hernandez. Dr. Doyle classified Hernandez as having major depression
and PTSD.

From these diagnoses and her questioning of Hernandez, Dr. Doyle

determined Hernandez’s limitations.

The foundation for Dr. Doyle’s determined

limitations is repeated throughout Hernandez’s medical record. Like Dr. Doyle, Dr. Fix
diagnosed Hernandez with PTSD and depression. Both State consultants noted that
Hernandez possessed significant symptoms of depression and PTSD. Turning to her
regular nurse practitioner, Ms. Nieveen conducted several depression screenings with
Hernandez, and diagnosed her with both recurrent depression and anxiety. Ms. Nieveen
even prescribed sertraline (Zoloft), an antidepressant, to Hernandez. Moreover, the GAF
score of 45 provided by Dr. Doyle was similarly provided by Dr. Fix. The evidence
presented by Hernandez’s medical records and the other consultants demonstrate that
Dr. Doyle’s assessment was grounded in objective medical evidence.
Additionally, the ALJ granted only partial weigh to Dr. Fix, stating that Dr. Fix’s
clinical observations did not support his restrictive statements.

The fact that some

observations may not appear as significant as other observations cannot change the fact
Dr. Fix classified Hernandez as having major depression and PTSD. Moreover, Dr. Fix’s
clinical observations are not directly opposed to these diagnoses. Among other things,
Dr. Fix reported Hernandez as having loss of energy, loss of interest, and showing
vegetative signs.

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Through discounting the evidence relating to her psychological problems, the ALJ
found that Hernandez’s “behavior, judgement, and affect remain generally normal.” Id. at
22. This contradicts the opinions provided by Dr. Doyle and Dr. Fix, and the medical
reports from Nieveen. Instead, the ALJ relied on Social Security consultants, Dr. Newman
and Dr. Branham, who opined that Hernandez was capable of work. Additionally, the ALJ
cited one Nebraska Medical Center record which stated that Hernandez presented as
negative for dysphoric mood, nervousness, and anxiety.

Filing No. 10-8, at 324.

However, the Nebraska Medical Center record in this instance primarily dealt with an
abscess on Hernandez’s arm and vaginal bleeding, not psychological concerns.
Hernandez’s other records sufficiently demonstrate a history of significant mental illness.
The Court finds that Hernandez’s symptoms, both objective and subjective, are
supported by the evidence presented. In this case, the ALJ did not properly assess the
weight of the consulting clinical psychologists’ opinions. As such, the Court finds that
Hernandez is clearly disabled.
C. Vocational Expert Testimony
To satisfy the Commissioner’s burden of showing the claimant is capable of
performing other work, the ALJ is generally required to utilize testimony of a vocational
expert if the claimant suffers from non-exertional impairments that limit her ability to
perform the full range of work described in one of the specific categories set forth in the
guidelines. Jones, 619 F.3d at 971–72. In order for a vocational expert’s testimony to
constitute substantial evidence, the ALJ must pose a hypothetical question that comprises
all of the claimant’s impairments. See Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir.
1997) (stating that a vocational expert’s testimony may be considered substantial

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evidence “only when the testimony is based on a correctly phrased hypothetical question
that captures the concrete consequences of a claimant’s deficiencies”).

“When a

hypothetical question does not encompass all relevant impairments, the vocational
expert’s testimony does not constitute substantial evidence.” KKC ex rel. Stoner v.
Colvin, 818 F.3d 364, 377 (8th Cir. 2016) (quoting Hunt v. Massanari, 250 F.3d 622, 626
(8th Cir. 2001)).
In this case, a vocational expert, Deborah Determan, testified at the ALJ hearing.
First, the ALJ asked the expert whether a hypothetical individual of Hernandez’s age,
education, work experience, with limitations including sedentary work, minimal coworker
supervision and public interactions, and who was limited to no more than simple
instructions and tasks could find work. Filing No. 10-3, at 105-06. The expert stated that
the hypothetical worker could find work as a document preparer, an addresser, or a cutter
and paster. Id. at 106. Next, the ALJ asked whether these jobs would be available if the
hypothetical worker was unable to perform math. Id. The expert stated that the three
jobs require the lowest level of math, which is grades one through three. Id. The ALJ
then asked whether these jobs would be available if the hypothetical worker could not
stoop or bend, just as Hernandez could not bend or stoop. Id. at 107. The expert stated
that under Social Security regulations a person who is unable to stoop is precluded from
sedentary work. Id. Finally, the ALJ asked whether a person under the first hypothetical
who would be off-task up to 20% of the workday, and absent from work on an
unscheduled basis four or more times per month would be able to find work. Id. at 10708.

The expert stated that either restriction alone would preclude competitive

employment. Id. at 108.

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The ALJ concluded that Hernandez could work despite a vocational expert
specifically stating that Hernandez’s concentration difficulties and work absences would
preclude competitive employment. The hearing testimony reflects that the ALJ asked the
vocational expert whether an individual with Hernandez’s age, education, work
experience, and limitations, who would be off task for up to 20% of the workday, and
absent from work on an unscheduled basis four or more times per month, would be able
to find work. Filing No. 10-3, at 107-8. The vocational expert responded that either
restriction alone would preclude competitive employment. Id. According to Dr. Doyle,
Hernandez meets both these restrictions. Filing No. 10-10, at 484. Dr. Doyle affirmed
that Hernandez would be off task, or unable to work at a competitive pace for more than
20% of an 8-hour work day due to concentration difficulties. Id. Additionally, Dr. Doyle
marked that Hernandez’s impairments would cause her to be absent from work more than
four days per month. Id. Carrying over this error, the RFC crafted by the ALJ fails to
include workday absences or unscheduled breaks.
The ALJ improperly discounted the opinions of Dr. Doyle and Dr. Fix and ignored
the vocational expert’s statement that an individual with Hernandez’s background and
limitations would be unable to find competitive work. Specifically, the vocational expert
stated that an individual with Hernandez’s limitations who would be off task 20% of the
day and would be absent more than four days a month would be unable to find competitive
work.

Considering this evidence, the record supports finding that Hernandez’s

impairments would preclude employment.
A reversal and remand for an immediate award of benefits is appropriate where
the record overwhelmingly supports a finding of disability. Taylor, 118 F.3d at 1279. The

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court finds that “the clear weight of the evidence fully supports a determination [Titsworth]
is disabled within the meaning of the Social Security Act.” See Pate-Fires v. Astrue, 564
F.3d 935, 947 (8th Cir. 2009). The Eighth Circuit has repeatedly approved of immediately
awarding benefits based on the controlling weight afforded to the opinion of a claimant's
treating medical provider. See id.; Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003);
Cunningham v. Apfel, 222 F.3d 496, 503 (8th Cir. 2000); Singh v. Apfel, 222 F.3d 448,
453 (8th Cir. 2000); but see Papesh, 786 F.3d at 1135-36. Where further hearings would
merely delay receipt of benefits, an order granting benefits is appropriate. Hutsell v.
Massanari, 259 F.3d 707, 714 (8th Cir. 2001).
In light of the evidence in the record, the Court finds that Hernandez is clearly
disabled and entitled to an award of benefits. Accordingly,
IT IS ORDERED:
1.

The plaintiff’s motion to reverse (Filing No. 14) is granted;

2.

The defendant’s motion to affirm (Filing No. 17) is denied;

3.

The decision of the Commissioner is reversed;

4.

This action is remanded to the Social Security Administration for an award

of benefits.
Dated this 14th day of March, 2019.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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