Sandoval v. Social Security Administration
ORDER by Magistrate Judge Jerry H. Ritter granting 28 Motion to Alter Judgment and vacating 25 . However, for the reasons stated herein, the Court reaffirms Judge Lynch's decision on alternative grounds and grants 17 Plaintiff's Motion to Remand to Agency. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BESSIE DARLENE SANDOVAL,
CIV 15-0294 JHR
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff Bessie Darlene Sandoval’s Motion
to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 17), filed
November 5, 2015, as well as Defendant Nancy A. Berryhill’s Motion to Alter or Amend
Judgment Pursuant to Fed. R. Civ. P. 59(e) (Doc. 28), filed April 4, 2016. The Court has also
considered Defendant’s Notice of Supplemental Authority (Doc. 30), filed March 7, 2017, and
Plaintiff’s Motion for Leave to File Short Response to Defendant’s Motion to Alter or Amend
Judgment (Doc. 36), filed September 27, 2017. Pursuant to 28 U.S.C. § 636(c) and Federal Rule
of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and
entering final judgment in this case. See Doc. 34. Having reviewed the parties’ submissions, the
relevant law, and the Administrative Record, the Court will grant Defendant’s Motion to Alter or
Amend Judgment. However, because substantial evidence does not support the ALJ’s
determination in this case, the Court reaffirms Judge Lynch’s decision to grant Plaintiff’s Motion
to Reverse or Remand.
Effective January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social Security
Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is
therefore substituted for former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.
Plaintiff is a 43-year-old mother of three who has never had a full-time job and most
recently worked in 1996. AR at 38-39. 2 The Administrative Law Judge (“ALJ”) who reviewed
Plaintiff’s claim determined that she is not disabled under the applicable regulations, and so
denied her supplemental security income benefits. See AR at 22-32. After the ALJ’s adverse
determination, Plaintiff submitted additional evidence to the Appeals Council in the form of an
opinion authored by her treating physician which, she claimed, rendered the ALJ’s determination
unsupported by substantial evidence. The Council affirmed the ALJ’s decision to deny benefits
despite this new evidence without expressly analyzing the opinion under the treating physician
rules. The Honorable William P. Lynch determined that this failure to analyze was in error, and
remanded this case. See Doc. 25. However, Judge Lynch stayed the judgment after Defendant
filed the pending Motion to Alter or Amend Judgment in anticipation of the Tenth Circuit’s
decision in Vallejo v. Berryhill, 849 F.3d 951 (10th Cir. 2017). See Doc. 29. That decision has
since subverted Judge Lynch’s decision to remand. Compare Doc. 29 with Vallejo, 849 F.3d at
951. Accordingly, Defendant’s Motion under Rule 59(e) will be granted.
However, granting Defendant’s Motion under Rule 59(e) does not end the matter; this
Court must still review the ALJ’s decision to determine whether it is supported by substantial
evidence in light of Plaintiff’s treating physician’s opinion, and whether the correct legal
standards were otherwise applied by the ALJ in denying benefits. Ultimately, the Court
concludes that the new evidence from Plaintiff’s treating physician undermines the ALJ’s RFC
finding in this case. As such, the ALJ’s determination is unsupported by substantial evidence,
and this Court will remand this case for further analysis by the Administration.
Documents 14-1 through 14-11 comprise the sealed Administrative Record (“AR”). For the sake of
clarity, the Court cites the Record’s internal pagination, rather than the CM/ECF document number and
Plaintiff filed an application with the Social Security Administration for supplemental
security income under Title XVI of the Social Security Act on June 21, 2011, with a protective
filing date of June 14, 2011. AR at 129-134, 147-149. In her application Plaintiff alleged a
disability onset date of May 18, 2011, the day after her previous denial by the Administration.
AR at 147. Plaintiff claimed disability on the following bases: “back injury, locking elbows, right
leg gives out, anxiety, depression, panic attacks, obesity, affective disorder, mild bilateral rotator
cuff injury [and] mild lower extremity arterial occlusion disease.” AR at 151.
The Administration initially denied Plaintiff’s claims on August 23, 2011, and then
affirmed its decision at the reconsideration stage of review on November 30, 2011. AR at 72-82.
Plaintiff requested a de novo hearing before an ALJ, and her case was assigned to ALJ Ann
Farris for a hearing to be held on May 14, 2013. AR at 83, 98, 33-58. Plaintiff and Vocational
Expert (“VE”) Leslie White testified at the hearing. See AR at 33-58, 119. After conducting the
hearing, ALJ Farris issued an unfavorable decision on June 24, 2013, finding that Plaintiff has
“not been under a disability, as defined by the Social Security Act, since June 14, 2011, the date
the application was filed. . . .” AR at 19-32.
Plaintiff submitted a request for review of the ALJ’s decision on September 20, 2013,
which, while untimely, was granted by the Appeals Council on May 1, 2014. See AR at 6.
Thereafter, Plaintiff submitted additional evidence in the form of a “Medical Assessment of
Ability to do Work-Related Activities (Mental) signed and dated by Kenneth Bull, MD on
10/10/13” to the Appeals Council on May 7, 2014. AR at 327-329. The Appeals Council made
Dr. Bull’s statement “part of the record,” AR at 4; however, it ultimately denied Plaintiff’s
request for review without further analysis, concluding that Dr. Bull’s statement did “not provide
a basis for changing the Administrative Law Judge’s decision.” AR at 1-4. As such, the ALJ’s
decision became the final decision of the Acting Commissioner. Doyal v. Barnhart, 331 F.3d
758, 759 (10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42
U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that 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. § 1382c(a)(3)(A); 20 C.F.R. §
416.905(a). The Commissioner must use a five-step sequential evaluation process to determine
eligibility for benefits. See 20 C.F.R. § 416.920(a)(4). 3
At Step One of the sequential evaluation process, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since her application date. AR at 24. At Step Two, she
determined that Plaintiff has the following severe impairments: “fibromyalgia; chronic
obstructive pulmonary disease (COPD); dysthymic disorder; anxiety; and a somatoform
disorder[.]” AR at 24. At Step Three, the ALJ concluded that Plaintiff’s impairments do not
individually or in combination meet or medically equal the regulatory “listings.” AR at 24-27.
The Tenth Circuit recently summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th
At step one, the ALJ must determine whether a claimant presently is engaged in a
substantially gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). If
not, the ALJ then decides whether the claimant has a medically severe impairment at step
two. Id. If so, at step three, the ALJ determines whether the impairment is “equivalent to
a condition ‘listed in the appendix of the relevant disability regulation.’” Id. (quoting
Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)). Absent a match in the listings,
the ALJ must decide at step four whether the claimant's impairment prevents him from
performing his past relevant work. Id. Even if so, the ALJ must determine at step five
whether the claimant has the RFC to “perform other work in the national economy.” Id.
When a plaintiff does not meet a listed impairment, the ALJ must determine her residual
functional capacity (“RFC”). 20 C.F.R. § 416.920(a)(4). RFC is a multidimensional description
of the work-related activities a plaintiff retains in spite of her medical impairments. 20 C.F.R. §
416.945(a)(1). “RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8P, 1996 WL 374184, at *1. In this case, the ALJ determined
that Plaintiff retains the RFC to “perform light work as defined in 20 C.F.R. 416.967(b);
however, she is further limited to making only simple work related decisions, with few
workplace changes; she can have no interaction with the public, and only occasional and
superficial interaction with co-workers.” AR at 27.
Ordinarily, an ALJ will employ this RFC at Step Four to determine whether a claimant
can return to her past relevant work. However, in this case, the ALJ skipped Step Four because
Plaintiff has no past relevant work under the regulations. See 20 C.F.R. § 416.968. Accordingly,
the ALJ proceeded to Step Five. There, employing Plaintiff’s RFC, and relying on the testimony
of vocational expert White, the ALJ determined that “there are jobs that exist in significant
numbers in the national economy that the claimant can perform[,]” namely: housekeeper, bench
assembler, bakery worker, lens inserter, and jewel stringer. AR at 31. Thus, because there are
jobs that Plaintiff maintains the RFC to perform, the ALJ determined that she is not disabled
under the regulations, and denied benefits. AR at 32.
Plaintiff appealed the ALJ’s decision to this Court. See Doc. 1. Magistrate Judge Lynch
granted Plaintiff’s Motion to Reverse or Remand this case, and entered Judgement in her favor
on March 7, 2016. See generally Docs. 25, 26. However, Defendant filed her Motion to Alter or
Amend Judgment on April 4, 2016, and Judge Lynch stayed the judgment “pending briefing on
the motion or the Tenth Circuit’s decision in Vallejo v. Colvin, No. 15-1283, whichever comes
first.” Doc. 29. Vallejo was decided on February 28, 2017, and Defendant gave notice of that
decision on March 7, 2017. Doc. 30. Plaintiff never responded to Defendant’s Motion, or Notice,
and the time to do so has long since passed. See D.N.M.LR-Civ. 7.4(a). Technically, this failure
to respond “constitutes consent to grant the motion.” See D.N.M.LR-Civ. 7.1(b). However, given
the procedural complexity of this case, and the technical nuances incumbent to Social Security
law, the Court will explain why Defendant’s Motion must be granted. The Court will then
analyze the merits of Plaintiff’s appeal.
In Social Security appeals such as this, the Court “review[s] the Commissioner’s decision
to determine whether the factual findings are supported by substantial evidence and whether the
correct legal standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015)
(quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “In order to
determine whether the [Commissioner’s] decision is supported by substantial evidence, [this
Court] must meticulously examine the record.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th
Cir. 1992). This “meticulous examination” pertains to the “record as a whole, including anything
that may undercut or detract from the ALJ’s findings[.]” Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.2007)). However,
this Court “cannot reweigh the evidence or substitute [its] judgment for the administrative law
judge’s.” Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016) (citation omitted).
In this case, Judge Lynch determined that the Appeals Council failed to apply the correct
legal standard when it incorporated Dr. Bull’s Medical Assessment into the record. Specifically,
he held that the Appeals Council did not conduct a treating physician analysis as required by
unpublished Tenth Circuit case law. See Doc. 25 at 11. Defendant asserts that this result was
unwarranted because “the Appeals Council does not have to make specific factual findings when
it declines review.” Doc. 28 at 2. This is the position Defendant pursued, and was successful on,
in Vallejo. Id.
In Vallejo, the claimant’s administrative record contained no medical opinions from
treating physicians; however, she informed the ALJ at the hearing that her treating physician was
preparing a mental health opinion which would then be submitted to the Administration. Vallejo
v. Berryhill, 849 F.3d 951, 953 (10th Cir. 2017). The ALJ agreed to consider the opinion if it was
received before issuing her decision. Id. However, the ALJ issued an adverse decision the day
before the opinion was received by the Administration. Id. As such, it was not addressed by the
ALJ, or weighed in accordance with the factors normally applied to treating physician’s
opinions. The claimant then appealed to the Appeals Council, including the opinion with her
request for review. Id. The Appeals Council denied review, stating that while it had reviewed the
opinion, it did not “provide a basis for changing the ALJ’s decision.” Id. The claimant appealed,
and the district court remanded the case on the ground that the Appeals Council was required to
follow the same rules as the ALJ would have in evaluating the opinion, rendering its summary
denial insufficient. Id.
The Tenth Circuit reversed. Pertinent here, the court held that, under the statutes and
regulations, “the Appeals Council is required only to ‘consider’ the new evidence – and a
conclusory statement that it has done so is sufficient.” Id. at 955 (citation omitted). In other
words, the court held that where the Appeals Council denies review of an ALJ’s decision it is not
required to follow the same rules for considering physician opinion evidence as are ALJs. Id. at
956. Rather, in such cases, the district court’s “only option” in reviewing the Administration’s
decision is “to conduct a substantial-evidence review by assessing the entire agency record,”
including the never-before assessed opinion, to determine if the ALJ’s decision to deny benefits
is supported by substantial evidence notwithstanding the new opinion. Id. (emphasis added); see
Yanni v. Colvin, CIV 15-0935 SCY, 2017 WL 3397382, *4 (D.N.M. March 32, 2017)
In sum, Vallejo invalidated Judge Lynch’s reasoning in remanding this case. The
question that remains is whether Defendant is entitled to relief under Rule 59(e) on this basis.
Rule 59(e) states only that “[a] motion to alter or amend a judgment must be filed no later than
28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). Thus, “[n]o matter how styled, a
motion will be deemed a Rule 59(e) motion if it is served within the specified time period and
seeks relief appropriate to Rule 59(e) by questioning the correctness of the underlying
judgment.” Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir.
2017) (citation omitted). This threshold requirement is met in this case. That said, “Rule 59(e)
relief is [only] available in limited circumstances, including ‘(1) an intervening change in the
controlling law, (2) when new evidence previously was unavailable, and (3) the need to correct
clear error or prevent manifest injustice.’” Id. (quoting Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000)). Defendant does not explicitly invoke any of these
circumstances, see Doc. 28; however, the Court finds that either (1) or (3) applies, as Vallejo
might be said to represent an intervening change in the controlling law, or Judge Lynch’s
decision a clear error of law. See id. at 1005 (“Certainly a motion under Rule 59(e) allows a party
to reargue previously articulated positions to correct clear legal error.”). Accordingly, the Court
considers relief under Rule 59(e) appropriate in this case, and grants Defendant’s Motion to alter
or amend the judgment.
The Court must now consider Plaintiff’s alternative arguments for reversal. Plaintiff
argues: (1) that the ALJ’s Step Two analysis is not supported by substantial evidence because the
ALJ failed to include two medically determinable and severe impairments in her findings; (2)
that the ALJ’s RFC finding is not supported by substantial evidence because it conflicts with
findings of the Administration’s own medical experts; and, (3) that the ALJ’s RFC is not
supported by substantial evidence because it is “directly contradicted by the medical opinion of a
treating physician.” Doc. 17 at 2. The Court addresses these arguments in turn.
A) The ALJ’s Step Two Errors Are Harmless
As Judge Lynch recognized: “[a]ny error at step two is harmless when the ALJ reached
the proper conclusion that claimant could not be denied benefits conclusively at step two and
proceeded to the next step of the evaluation sequence.” Doc. 25 at 5 (quoting Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)); see Allman v. Colvin, 813 F.3d 1326, 1330 (10th
Cir. 2016) (“the failure to find a particular impairment severe at step two is not reversible error
when the ALJ finds that at least one other impairment is severe.”). In this case, the ALJ
determined that Plaintiff has the following severe impairments: “fibromyalgia; chronic
obstructive pulmonary disease (COPD); dysthymic disorder; anxiety; and a somatoform
disorder[.]” AR at 24. The ALJ then proceeded to analyze Plaintiff’s claims under Steps Three
and Five. As such, any error by the ALJ in failing to find additional severe impairments at Step
Two is harmless under Tenth Circuit case law, and the Court will not reverse on this basis.
B) The ALJ’s RFC Findings Do Not Conflict with the Findings of the
Plaintiff argues that the ALJ failed to incorporate the findings of the Administration’s
non-examining consultants in her RFC determination, despite giving those consultants’ opinions
“great weight.” See Doc. 17 at 18-23. These consultants, Cheryl Woodson-Johnson, Psy.D., and
Michael Stevens, Ph.D., completed Mental Residual Functional Capacity Assessment
(“MRFCA”) forms in the course of the Administration’s denial of Plaintiff’s claims. See AR at
68-69, 275-78. The MRFCA is a form used by the Social Security Administration, which is
broken up into three sections. See POMS DI 24510.060. “Section I is for recording summary
conclusions derived from the evidence in the file and directs that detailed explanation of the
degree of limitation for each category is to be recorded in Section III.” Carver v. Colvin, 600 F.
App’x 616, 618 (10th Cir. 2015) (unpublished) (internal quotation marks omitted). 4 As was
recently recognized by the Tenth Circuit:
The purpose of Section I is chiefly to have a worksheet to ensure that the
psychiatrist or psychologist has considered each of these pertinent mental
activities and the claimant's or beneficiary's degree of limitation.... It is the
narrative written by the psychiatrist or psychologist in section III ... that
adjudicators are to use as the assessment of RFC. Adjudicators must take the
RFC assessment in section III and decide what significance the elements
discussed in this RFC assessment have in terms of the person’s ability to meet the
demands of past work or other work.
Nelson v. Colvin, 655 F. App’x 626, 628–29 (10th Cir. 2016) (quoting SSA, Program Operations
Manual System (POMS), DI 25020.010 B.1 (emphasis in original)). The purpose of Section III is
to state, among other things, “[t]he extent to which the individual can still perform and sustain
specific mental activities and mental functions.” POMS DI 24510.061 (emphasis in original).
The Court notes that Dr. Stevens’ MRFCA was not completed on the exact form discussed in Carver v.
Colvin, 600 F. App’x 606 (10th Cir. 2015) (unpublished), which relied on POMS DI 24510.060. Compare
AR at 68-69 with AR at 275-78. However, Dr. Woodson-Johnson used the cited form, and the MRFCA
form used by Dr. Stevens contains the same rating system and four general categories of limitations as
special Form SSA-4934-F4-SUP. Moreover, it directed Dr. Stevens to discuss Plaintiff’s mental
capacities in narrative form. Thus, the MRFCA form is sufficiently analogous to special Form SSA-4734F4-SUP to allow the Court to determine whether, in consideration of POMS DI 24510.060, the specific
psychological limitations at issue should have been included in the RFC. See Maldonado v. Berryhill,
CIV 16-0392 KBM, 2017 WL 2491528, at *2 n.3 (D.N.M. Apr. 26, 2017) (Molzen, M.J.) (citing
Vanvakerides v. Colvin, CIV 14-0879 SCY, Doc. 25 at 11 (D.N.M. April 7, 2016) (Yarbrough, M.J.)).
Thus, “[i]t is the narrative written by the psychiatrist or psychologist in Section III that
adjudicators are to use in the assessment of RFC.” Carver, 600 F. App’x at 619 (citation
omitted); see also Nelson, 655 F. App'x at 628 (citing POMS, DI 25020.010 B.1).
The parties’ arguments focus on Carver’s admonition that “if a consultant’s Section III
narrative fails to describe the effect that each of the Section I moderate limitations would have on
the claimant's ability, or if it contradicts limitations marked in Section I, the MRFCA cannot
properly be considered part of the substantial evidence supporting an ALJ's RFC finding.”
Carver, 600 F. App’x at 619; see Doc. 17 (Motion) at 21; Doc. 21 (Response) at 18-19 (quoting
this language). What the parties forget, however, is that Carver is unpublished. In a more recent
and published decision, the Tenth Circuit made clear that a reviewing court is to “compare the
administrative law judge's findings to [the doctor’s] opinion on residual functional capacity, not
her notations of moderate limitations.” Smith v. Colvin, 821 F.3d 1264, 1269 n.2 (10th Cir.
2016). Thus, Carver must be read in light of the attention, and deference, the Smith Court paid to
the doctor’s Section III narrative.
In Smith, the Plaintiff argued that the ALJ failed to include the following nonexertional
(Section I) moderate impairments found by the Administration’s nonexamining consultant:
• maintain concentration, persistence, and pace,
• remain attentive and keep concentration for extended periods,
• work with others without getting distracted,
• complete a normal workday and workweek without interruption for psychologically
• perform at a consistent pace without excessive rest periods,
• accept instructions and respond appropriately to criticism by supervisors,
• get along with coworkers or peers without distracting them or engaging in behavioral
• respond appropriately to changes in the workplace, and
• set realistic goals or independently plan.
Smith v. Colvin, 821 F.3d 1264, 1268 (10th Cir. 2016). The Tenth Circuit disagreed. It reasoned
that the ALJ’s RFC (“concluding that Ms. Smith (1) could not engage in face-to-face contact
with the public and (2) could engage in only simple, repetitive, and routine tasks.”) “incorporated
the functional limitations of Ms. Smith’s moderate nonexertional impairments” because it was
“similar” to the doctor’s Section III narrative, which concluded “that Ms. Smith (1) could not
engage in face-to-face contact with the public and (2) could engage in only simple, repetitive,
and routine tasks.” Id. at 1269. The Tenth Circuit explained that the Plaintiff’s focus on the
consultant’s moderate Section I findings raised “the wrong question.” Id. at 1269 n.2. Rather,
“[a]s discussed above, [the consultant’s] notations of moderate limitations served only as an aid
to her assessment of residual functional capacity.” Id. (emphasis added).
Other judges in this District have declined to follow Smith, positing that Section III
findings must always explicitly account for Section I moderate limitations, or else “the Court
would have to find that Smith implicitly overrules Haga [v. Astrue, 482 F.3d 1205 (10th Cir.
2007),] and Frantz [v. Astrue, 509 F.3d 1299, 1304 (10th Cir. 2007)].” See Silva v. Colvin, 203
F. Supp. 3d 1153, 1162 (D.N.M. 2016) (Vidmar, M.J.); Jones v. Berryhill, 2017 WL 3052748, at
*5 (D.N.M. June 15, 2017) (Fashing, M.J.). However, this Court does not believe that Haga,
Frantz and Smith are irreconcilable.
In Haga, the Tenth Circuit held that “[a]n ALJ is not entitled to pick and choose through
an uncontradicted medical opinion, taking only the parts that are favorable to a finding of
nondisability.” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (citations omitted). There,
an ALJ explicitly recognized several moderate limitations as part of the claimant’s RFC, but
omitted four others. Id at 1208. The Tenth Circuit held this to be error. Id. (“the ALJ should have
explained why he rejected four of the moderate restrictions on Dr. Rawlings' RFC assessment
while appearing to adopt the others.”). This rationale was extended to nonexamining consultants
in Frantz. However, neither Haga nor Frantz recognize the distinction between Section I and
Section III that the Tenth Circuit has so recently focused on. Nor do they hold that a properly
supported Section III finding cannot be relied upon by an ALJ when formulating a claimant’s
RFC. Read together, then, what Haga, Frantz, and Smith demonstrate is that an ALJ’s RFC must
reflect a consultant’s Section III conclusions, which in turn must demonstrate the degree of
limitation identified by the consultant in Section I. See McDaniel v. Berryhill, 2017 WL
3052504, at *14 (D.N.M. July 12, 2017) (Fouratt, M.J.).
As Judge Fouratt explained in McDaniel, “[m]ore recent decisions of the Tenth Circuit
have clarified the application of Haga[.]” Id. These cases, Vigil v. Colvin, 805 F.3d 1199, 120304 (10th Cir. 2015), and Smith, collectively stand for the proposition that “an administrative law
judge can account for moderate limitations by limiting the claimant to particular kinds of work
activity.” McDaniel, 2017 WL 3052504, at *14 (quoting Smith, 821 F.3d at 1269). The same
rationale applies to a Section III narrative that inherently accounts for moderate limitations
identified in Section I. Thus, an ALJ need not “parrot” a consultant’s “exact description of
limitations” so long as the ALJ’s RFC reflects the consultant’s “overall assessment.” See Chavez
v. Colvin, 654 Fed. Appx. 374, 375 (10th Cir. 2016) (Gorsuch, J.) (citing Smith, 821 F.3d at
1268–70 & n. 2).
Having established this legal backdrop, the Court turns to Plaintiff’s argument concerning
these consultants’ opinions, which is three-fold. First, Plaintiff argues that the ALJ failed to
incorporate these consultants’ findings of Section I limitations in determining her RFC. Doc. 17
at 20. Next, she argues that the experts failed to incorporate their own Section I limitations in
their Section III findings, meaning that the Section III findings cannot properly be considered
part of the substantial evidence supporting the ALJ’s formulation of Plaintiff’s RFC under
Carver. Id. at 21. Finally, assuming that the Court disagrees with these two arguments, Plaintiff
posits that the ALJ’s RFC fails to incorporate the essence of the consultants’ Section III
narratives. Id. at 22.
The first argument is easily dealt with for the reasons explained above. While the ALJ
was not free to ignore the consultants’ Section I findings if they were contrary to their Section III
narratives, she was permitted to, and did, incorporate their Section III conclusions into Plaintiff’s
RFC. As such, there was no need for the ALJ to re-state the moderate limitations identified by
the consultants when formulating Plaintiff’s RFC. Compare Nelson, 655 F. App’x at 628;
Paulsen v. Colvin, 665 F. App’x 660, 666 (10th Cir. 2016) (“there was no need for the ALJ to
repeat the moderate limitations assessed by Dr. Sexton because the effects of the limitations were
explained in Dr. Sexton’s narrative”); Lee v. Colvin, 631 Fed. Appx. 538, 541 (10th Cir. 2015)
(“Having adopted the limitations described in section III of the MRFCA, the ALJ was not also
required to specifically adopt or discuss each individual limitation described in section I.”).
Plaintiff’s third argument fails because the ALJ’s RFC adequately encompassed the
consultants’ Section III narratives. Dr. Woodson-Johnson concluded in Section III that Plaintiff
“is able to perform work where interpersonal contact is incidental to work performed, e.g.
assembly work; complexity of tasks is learned and performed by rote, few variables, little
judgment; supervision required is simple, direct and concrete (unskilled).” AR at 277. Likewise,
Dr. Stevens opined that Plaintiff is “able to understand and remember instructions, able to do
simple tasks in a low stress environment, able to cooperate, [and] able to be aware of hazards.”
AR at 69. In turn, the ALJ’s RFC formulation limits Plaintiff “to making only simple work
related decisions, with few workplace changes; she can have no interaction with the public, and
only occasional and superficial interaction with co-workers.” AR at 27. These restrictions on
Plaintiff’s RFC adequately account for the consultants’ Section III findings, and this is all the
ALJ was required to do. See Smith, 821 F.3d at 1269 (“Through these findings, the
administrative law judge incorporated the functional limitations of Ms. Smith’s moderate
nonexertional impairments.”); Chavez v. Colvin, 654 Fed. Appx. 374, 375 (10th Cir. 2016)
(“While the ALJ didn't parrot Dr. Lev's exact descriptions of Ms. Chavez's limitations, the ALJ
did specifically note his overall assessment that Ms. Chavez ‘retain[ed] the capacity to do simple
Plaintiff’s second argument presents a closer call – whether the consultants’ Section III
narratives adequately encompassed their Section I findings. In this case, Dr. Woodson-Johnson
noted moderate limitations on Plaintiff’s ability to “carry out detailed instructions . . . maintain
attention and concentration for extended periods . . . sustain an ordinary routine without special
supervision . . . complete a normal workday and workweek without interruptions from
psychologically based symptoms and perform at a consistent pace without an unreasonable
number and length of rest periods . . . accept instructions and respond appropriately to criticism .
. . respond appropriately to changes in the work setting . . . [and] set realistic goals or make plans
independently of others.” AR at 277. Plaintiff complains that Dr. Woodson-Johnson’s “narrative
says nothing about how Ms. Sandoval’s limited abilities to complete a normal workday and
workweek, to maintain attention and concentration for extended periods, or to set realistic goals
or make plans independently affect Ms. Sandoval’s overall ability to work.” Doc. 17 at 21. The
As set forth above, in Section III of the form Dr. Woodson-Johnson opined that Plaintiff
“is able to perform work where interpersonal contact is incidental to work performed, e.g.
assembly work; complexity of tasks is learned and performed by rote, few variables, little
judgment; supervision required is simple, direct and concrete (unskilled).” AR at 277. In reaching
this conclusion, Dr. Woodson-Johnson necessarily found that Plaintiff can complete a normal
workday. See Sullivan v. Colvin, 519 Fed. Appx. 985, 989 (10th Cir. 2013) (a limitation to
unskilled work adequately reflects moderate limitations in maintaining a schedule and regular
attendance, and completing a normal workday). Likewise, Plaintiff’s moderately impaired ability
to maintain attention and concentration for extended periods is adequately encompassed in Dr.
Woodson-Johnson’s determination that Plaintiff is able to complete work involving few
variables and little judgment. See Lee v. Colvin, 631 Fed. Appx. 538, 542 (10th Cir. 2015)
(restriction to “simple tasks” adequately encompassed moderate limitation on the ability to
maintain attention and concentration for extended periods). Finally, as to the moderate limitation
on Plaintiff’s ability to set realistic goals or make plans independently of others, these limitations
come from an area of the form entitled “adaptation.” AR at 277. “Adaptive functions reflect the
individual's ability to integrate other areas of functioning.” POMS DI 24510.061. Thus, “[t]he
items in this section pertain to the individual's ability to: plan, respond to changes, deal
appropriately with mental demands (stress), avoid hazards and maintain safe behavior, follow
rules, adhere to schedules and to time constraints, and travel.” POMS DI 24510.061(B)(4)(A).
By concluding that Plaintiff can perform work requiring “little judgment,” Dr. Woodson-Johnson
adequately encompassed Plaintiff’s adaptation limitations. See Maldonado v. Berryhill, 2017 WL
2491528, at *4 (D.N.M. Apr. 26, 2017) (Molzen, M.J.).
Turning to Dr. Stevens, he noted that Plaintiff has moderate limitations in the ability to
“perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances . . . work in coordination with or in proximity to others without being
distracted by them . . . 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 . . . [and] respond appropriately to changes in the work
setting.” AR at 68-69. However, in Section III Dr. Stevens opined that Plaintiff is “able to
understand and remember instructions, able to do simple tasks in low stress environment, able to
cooperate, and able to be aware of hazards.” AR at 69. Thus, Plaintiff argues that “Dr. Stevens
narrative appears to identify only limitations Ms. Sandoval does not have, rather than describing
how Ms. Sandoval’s limited abilities to complete a normal workday and workweek, to respond to
changes in the work setting, or to perform activities within a schedule affect her overall ability to
work.” Doc. 17 at 22.
The Court rejects Plaintiff’s argument. As noted above, the purpose of Section III is to
state “[t]he extent to which the individual can still perform and sustain specific mental
activities and mental functions.” POMS DI 24510.061 (emphasis in original). As such, Dr.
Stevens’ Section III findings were entirely appropriate insofar as they described the extent to
which Plaintiff can still perform the mental requirements of simple work. Compare Smith, 821
F.3d at 1269; Chavez, 654 F. App’x at 375. Moreover, Dr. Stevens’ Section III narrative
adequately encompasses his Section I findings. See id.; see also Orso v. Colvin, 658 F. App’x
418, 420 (10th Cir. 2016) (finding that a “moderate difficulty with concentration, persistence,
and pace is encompassed by the limitation of work involving ‘simple tasks[.]’”); see also
Herrera v. Berryhill, 2017 WL 4155348, at *11 (D.N.M. Sept. 14, 2017) (Khalsa, M.J.) (finding
that some of the mental demands at issue here were adequately encompassed in Section III
finding that “the claimant can understand, remember and carry out simple instructions, make
simple decisions, attend and concentrate for at least 2 hours at a time, interact adequately with
co-workers and supervisors and respond appropriately to changes in the workplace.”); see also
McCutcheon v. Berryhill, 2017 WL 1744130, at *4 (W.D. Okla. Mar. 31, 2017), report and
recommendation adopted, McCutcheon v. Berryhill, 2017 WL 1743857 (W.D. Okla. May 3,
In sum, the ALJ’s RFC comports with Section III of the consultants’ findings, and those
findings themselves contemplate the restrictions (or lack thereof) noted in Section I of the
respective MRFCA forms. As such, the Court finds that the ALJ’s RFC findings were supported
by substantial evidence, and will not reverse on this ground.
C) The ALJ’s RFC Finding Conflicts with Dr. Bull’s Opinion, Rendering the
Appeals Council’s Denial of Benefits Unsupported by Substantial Evidence.
“When a claimant submits new evidence to the Appeals Council and the Council accepts
that evidence, it becomes part of the administrative record for the district court to consider in
performing its substantial-evidence review.” Vallejo, 849 F.3d at 954 n.1 (citing O’Dell v.
Shalala, 44 F.3d 855, 858-59 (10th Cir. 1994)). Where, as here, the Council does not make a
decision, but simply “denies review,” it is not required to follow the same rules for considering
opinion evidence as the ALJ is to follow below. Id. (citing 20 C.F.R. § 416.927(e)(3)). Thus,
while “express analysis from the Appeals Council would be helpful to judicial review,” in such
cases the reviewing court’s “only option [is] to conduct a substantial-evidence review by
assessing the entire agency record, including [the doctor’s] never-before assessed opinion.” Id.
(citing O’Dell, 44 F. 3d at 858-59).
Courts in this district have struggled with how to apply Vallejo, and rightly so. See Lopez
v. Berryhill, CIV 16-0552 SCY, Doc. 25 at 10-11 (D.N.M. Sept. 30, 2017). As Judge Yarbrough
recognized in Lopez, it is not this Court’s institutional role to examine and weigh medical
opinions in the first instance – that is typically the prerogative of the ALJ as the finder of fact.
See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“It is the ALJ's duty to give
consideration to all the medical opinions in the record. . . . He must also discuss the weight he
assigns to such opinions.”) (citing 20 C.F.R. §§ 404.1527(c), 404.1527(e)(2)(ii), 416.927(c),
416.927(e)(2)(ii)). At the same time, the Tenth Circuit has made explicit in Vallejo that it is this
Court’s duty to assess the ALJ’s decision in light of the additional evidence to determine whether
the Appeals Council’s denial of a claim is supported by substantial evidence. Thus, while this
Court will not expressly weigh Dr. Bull’s opinion, it will assess whether it is consistent with the
evidence of record, or if it supports a more restrictive RFC than the ALJ found.
In conducting this review, the Court is cognizant that “[g]enerally, a treating physician's
opinion receives more weight than other physicians’ opinions ‘since [treating physicians] are
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence.’” Brownrigg v. Berryhill, 688 Fed. Appx. 542, 548 (10th Cir. 2017) (quoting 20 C.F.R.
§ 404.1527(c)(2)). As such, generally, when reviewing a treating physician’s opinion, an ALJ
“must complete a sequential two-step inquiry, each step of which is analytically distinct.” Id.
(quoting Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011)). “First, the ALJ must consider
whether the opinion is entitled to controlling weight. That requires finding the opinion is both
‘well-supported by medically acceptable clinical or laboratory diagnostic techniques’ and
‘consistent with other substantial evidence in the record.’” Id. If the opinion is not entitled to
controlling weight, it must still be weighed in accordance with the regulatory factors:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician's opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ's attention which tend to support or contradict the opinion.
Id. While not every factor will apply in every case, an ALJ must ordinarily provide “good
reasons” – tied to these regulatory factors – for the weight given to the treating source’s opinion.
Id. (citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)). While the Court will not
expressly apply these factors in this case, they guide its analysis.
Kenneth Bull, M.D., treated Plaintiff from December 7, 2011, through May 6, 2013. See
AR at 320. Unfortunately, Dr. Bull’s treatment notes are illegible and provide very little insight
into the nature of Plaintiff’s impairment. See generally AR at 321-25. A generous reading of
these records indicates that “he regularly assessed Ms. Sandoval’s mood, her sleep, any delusions
or hallucinations she was having, her lability, her anger level, any sort of attention deficit
disorder or obsessive compulsive disorder she was presenting, her level of confusion, and any
side effects she was experiencing from her medications.” Doc. 17 at 25; compare AR at 321-25.
However, Dr. Bull’s notes as to these topics are often presented in the form of arrows, and they
are sparse. See AR at 321-25. Still, Dr. Bull authored a medical opinion in the form of a Medical
Assessment of Ability to do Work-Related Activities (Mental) on October 10, 2013. See AR at
327-29. On this form, which closely resembles those discussed above, Dr. Bull indicated a
“marked” 5 level of impairment in Plaintiff’s ability to “understand and remember detailed
instructions . . . make simple work-related decisions . . . complete a normal workday and
workweek without interruptions from psychological based symptoms and to perform at a
consistent pace without unreasonable number and length of rest periods . . . ask simple questions
The form describes a “marked” impairment as “[a] severe limitation which precludes the individual’s
ability usefully to perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5
days a week, or an equivalent schedule. The individual cannot be expected to function indecently (sic)
appropriately and effectively on a regular and sustained basis. AR at 329 (emphasis in original).
or request assistance . . . accept instructions and respond appropriately to criticism from
supervisors . . . [and] respond appropriately to changes in the workplace.” AR at 328-29.
Additionally, Dr. Bull noted “moderate” 6 impairment in Plaintiff’s ability to “understand and
remember very short and simple instructions . . . carry out detailed instructions . . . maintain
attention and concentration for extended periods of time (i.e., 2-hour segments) . . . perform
activities within a schedule, maintain regular attendance and be punctual within customary
tolerance . . . sustain an ordinary routine without special supervision . . . make simple workrelated decisions . . . interact appropriately with the general public . . . get along with coworkers
or peers without distracting them or exhibiting behavioral extremes . . . maintain socially
appropriate behavior and adhere to basic standards of neatness and cleanliness . . . be aware of
normal hazards and take adequate precautions . . . travel in unfamiliar places or use public
transportation . . . [and] set realistic goals or make plans independently of others.” Id. In fact, it
appears as though the only areas where Dr. Bull was of the opinion that Plaintiff either has a
slight restriction or no significant limitation are in the areas of “remembering locations and
work-like procedures” and carrying “out very short and simple instructions.” AR at 328.
Initially, the Court is inclined to assume for the sake of argument that Dr. Bull’s opinion
is entitled to controlling weight in the absence of any express analysis by the Administration.
However, because the Court cannot determine whether the opinion is well-supported, and
because the Commissioner’s Response brief argues that the opinion is inconsistent with other
evidence of record, (for example, Dr. Merta’s opinion, see Doc. 21 at 23), the Court will not
assume that it merits controlling weight. Still, the opinion is entitled to at least some weight, as
The form describes a “moderate” impairment as a “limitation that seriously interferes with the
individual’s ability to perform the designated activity on a regular and sustained basis. . . . The individual
may be able to perform this work-related mental function on a limited basis. However, the individual
should not be placed in a job setting where this mental function is critical to job performance or job
purpose.” AR at 329 (emphasis in original).
Dr. Bull is the only treating physician whose opinion appears in the record, he saw Plaintiff on
numerous occasions and he is a specialist in the area. See Krauser, 638 F.3d at 1330. As such,
the Vallejo substantial evidence inquiry hinges upon the consistency of Dr. Bull’s opinion with
Plaintiff’s RFC as formulated by the ALJ.
As noted above, in this case, the ALJ determined that Plaintiff retains the RFC to
“perform light work as defined in 20 C.F.R. 416.967(b); however, she is further limited to
making only simple work related decisions, with few workplace changes; she can have no
interaction with the public, and only occasional and superficial interaction with co-workers.” AR
at 27. This RFC is inconsistent with Dr. Bull’s opinion.
For example, Dr. Bull opined that Plaintiff is only capable of “remembering locations and
work-like procedures” and carrying “out very short and simple instructions.” AR at 328. The
ALJ, on the other hand, found Plaintiff to be capable of making simple work related decisions on
a sustained basis. AR at 27. However, this is an area where Dr. Bull found Plaintiff to be
“moderately” impaired, meaning that, while Plaintiff may be capable of making simple work
related decisions, she “should not be placed in a job setting where this mental function is critical
to job performance or job purpose.” AR at 329. Likewise, Dr. Bull opined that Plaintiff’s ability
to accept instructions and respond appropriately to criticism from supervisors is markedly
impaired, whereas the ALJ included no limitations as to supervisors in her RFC. Compare AR at
27 with AR at 329. In sum, Dr. Bull’s opinion conflicts with the ALJ’s RFC because it found
much greater restrictions on Plaintiff’s ability to work. As such, the ALJ’s RFC is unsupported
by substantial evidence and this case must be remanded. See Vallejo, 849 F.3d at 956; Yanni,
2017 WL 3397382, at *4-5.
In arguing to the contrary, the Commissioner presents a series of reasons why this Court
should discount Dr. Bull’s opinion in favor of the other medical professionals in this case. Doc.
21 at 22-23. However, these arguments ask the Court to weigh Dr. Bull’s opinion in the first
instance rather than simply comparing it to the record as a whole to determine whether they are
consistent. The Court’s role upon review constrains it to the latter.
Moreover, the Commissioner’s critique is unpersuasive. For example, the Commissioner
posits that because Dr. Bull’s opinion was rendered on a “check-box form, devoid of any
explanation” it merits less weight than the other medical opinions that were rendered on
substantially similar forms. Doc. 21 at 22. The Tenth Circuit has disfavored such a rationale
when dealing with a form completed by a treating physician. See Andersen v. Astrue, 319 F.
App’x 712, 723 (10th Cir. 2009). To the extent that the Commissioner relies on Chapo v. Astrue,
682 F.3d 1285, 1293 (10th Cir. 2012), the Court finds that case distinguishable. See id. (allowing
an ALJ to discount a “check-the-box” form where the physician had only barely begun treating
the claimant and none of the physician’s records were in evidence).
The Commissioner argues that Dr. Bull’s findings are not supported by his treatment
notes, Doc. 21 at 22, but that it not ascertainable on this record. While it is true that Dr. Bull’s
treatment notes are hard to decipher, that is no basis for ignoring his opinions, especially those
legibly rendered on a check-box form. See Mark v. Berryhill, CIV 16-0357 KBM, 2017 WL
3052494, at *5 (D.N.M. June 30, 2017) (Molzen, M.J.) (“While there are parts of Dr. Percy's
handwritten RFC form that are somewhat difficult to decipher, there are also relevant portions of
that form that are quite clear. That is, Dr. Percy expressed a number of opinions through the
unambiguous checking of boxes on the RFC form.”). Instead, the obscurity of Dr. Bull’s
treatment notes may have triggered the Administration’s duty to ask him for clarification of his
opinions, see id. (citing White v. Barnhart, 287 F.3d 903 (2001) and SSR 96-5P, 1996 WL
374183), not to ignore them.
The Commissioner saw Dr. Bull’s findings as contradicted by Plaintiff’s activities of
daily living, citing Newbold v. Colvin, 718 F.3d 1257, 1266 (10th Cir. 2013). Doc. 21 at 22.
However, Plaintiff’s activities of daily living in this case are distinguishable from those in
Newbold, and the Court is not convinced that it should apply the holding in Newbold, a case
involving medical improvement, to this case. Compare id. with AR at 176-181. Additionally, Dr.
Bull’s opinions do not limit Plaintiff’s activities of daily living to the extent as the fibromyalgia
questionnaire at issue in Newbold, so the case is inapposite.
Finally, the Commissioner argues that Dr. Bull’s opinion was inconsistent with the other
medical opinions in the file. Doc. 21 at 23. While the Court acknowledges that this might be an
appropriate factor to consider in certain cases, here “the Court is confronted with a conflict
between the consultative psychologist’s opinion and the opinion of Plaintiff’s treating physician
regarding the extent of Plaintiff’s ability to perform work. Given that a treating physician’s
opinion must generally be accorded controlling weight, this is not simply a conflict between
evidence on equal footing.” Yanni, 2017 WL 3397382 at *4 (citations omitted). As set forth
above, while the Court is not able to conclude that Dr. Bull’s opinion is entitled to controlling
weight, it is certainly entitled to some weight given his status as Plaintiff’s treating physician.
The only other examining psychologist in this case – Rod J. Merta, Ph.D – a consultative
examiner employed by the administration, see AR at 269-274, identified a functional assessment
for Plaintiff which is not necessarily inconsistent with the restrictions Dr. Bull identified:
Although possibly limited slightly by below average intelligence and limited
education, claimant does possess the ability to reason, can understand verbal if not
always written instructions, and can command sufficient memory with which to
sustain her concentration and persist in the completion of some physical and
cognitive tasks contained within her ADLS, hobbies and work-related tasks. With
her existing anti-anxiety medication, counseling and greater exposure, claimant
has the ability to overcome some of her current social phobia and achieve greater
level of social interaction. Although somewhat debilitated at this point, claimant
could achieve greater ability at adapting to changes in her environment.
AR at 274 (emphasis added). In sum, Dr. Merta opined that Plaintiff can reason and understand
instructions, but is only capable of sustaining concentration, persistence, and pace in the
completion of some of her activities of daily living, hobbies and work-related tasks. Id. Likewise,
Dr. Bull found that Plaintiff can carry out very short and simple instructions, but is otherwise at
least moderately impaired in her ability to sustain concentration and persistence. AR at 328.
Given the opinions’ general consistency, there is no reason why Dr. Merta’s opinion should be
elevated above Dr. Bull’s, especially where Dr. Bull had a treating relationship with Plaintiff.
See Doyle v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003) (stating that a treating physician’s
opinion is given special weight because of the physician’s “unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.”).
The Court grants Defendant’s Motion to alter or amend the judgment in this case because
Judge Lynch applied the wrong legal standard in reversing the Commissioner’s denial of
benefits. However, he correctly recognized that “Dr. Bull’s opinion differs significantly from the
ALJ’s RFC determination.” see Doc. 25 at 11. Accordingly, this matter will be remanded
because Dr. Bull’s opinion renders the ALJ’s RFC finding unsupported by substantial evidence.
Should the administration disagree, it should analyze Dr. Bull’s opinion in the first instance and
assign a specific weight to it to allow further appellate review.
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 17) is granted.
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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