Jones v. Social Security Administration

Filing 23

ORDER by Magistrate Judge Laura Fashing granting 15 Motion to Remand to Agency. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LORA JEANNE JONES,
Plaintiff,
v.

1:15-cv-00842-LF

NANCY A. BERRYHILL 1, Acting Commissioner
of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Lora Jeanne Jones’s Motion to
Reverse and Remand (Doc. 15), which was fully briefed August 29, 2016. Docs. 19, 21, 22.
The parties consented to my entering final judgment in this case. Docs. 5, 7, 9. Having
meticulously reviewed the entire record and being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) failed to apply the correct legal standards in weighing the
opinion of Dr. Scott R. Walker, a non-examining agency psychiatrist. I therefore GRANT Ms.
Jones’s motion and remand this case to the Commissioner for proceedings consistent with this
opinion.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final

decision 2 is supported by substantial evidence and whether the correct legal standards were

1

Nancy A. Berryhill, the new Acting Commissioner of Social Security, is automatically
substituted for her predecessor, Acting Commissioner Carolyn W. Colvin, as the defendant in
this suit. FED. R. CIV. P. 25(d).
2

The Court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which
generally is the ALJ’s decision, 20 C.F.R. §§ 404.981, 416.1481, as it is in this case.

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
the Commissioner’s findings and the correct legal standards were applied, the Commissioner’s
decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116,
1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court
with a sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal
quotation marks and brackets omitted). The Court must meticulously review the entire record,
but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. A 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.” Id. While the Court may not reweigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of
drawing two inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.’” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or she is unable “to

engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be

2

expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);
20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation process, the claimant must show:
(1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant has a “severe
medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the
Listings 3 of presumptively disabling impairments; or (4) the claimant is unable to perform his or
her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399
F.3d at 1260–61. If the claimant cannot show that his or her impairment meets or equals a
Listing but proves that he or she is unable to perform his or her “past relevant work,” the burden
of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform
other work in the national economy, considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Id.
III.

Background and Procedural History
Ms. Jones was born in 1974, completed two years of college, and worked in the past as a

cashier, receptionist, and call center employee. AR 189, 193, 330. 4 Ms. Jones filed applications
for disability insurance benefits and supplemental security income on January 18, 2012, alleging
disability since May 1, 2009 due to post-traumatic stress disorder (“PTSD”), depression, anxiety,
and attention deficit disorder (“ADD”). AR 169–74, 175–78, 192. The Social Security
3

20 C.F.R. pt. 404, subpt. P, app. 1.

4

Documents 12-1 through 12-14 comprise the sealed Administrative Record (“AR”). When
citing to the record, the Court cites to the AR’s internal pagination in the lower right-hand corner
of each page, rather than the CM/ECF document number and page.
3

Administration (“SSA”) denied her claims initially on March 30, 2012. AR 108–11. The SSA
denied her claims on reconsideration on September 24, 2012. AR 117–19, 120–23. Ms. Jones
requested a hearing before an ALJ. AR 124–26. On June 12, 2013, ALJ Ben Willner held a
hearing. AR 36–65. ALJ Willner issued his unfavorable decision on October 23, 2013. AR 17–
35.
At step one, the ALJ found that Ms. Jones had not engaged in substantial, gainful activity
since May 1, 2009. AR 22. Because Ms. Jones had not engaged in substantial gainful activity
for at least twelve months, the ALJ proceeded to step two. Id. At step two, the ALJ found that
Ms. Jones suffered from the following severe impairments: ADD, depression, anxiety disorder,
and PTSD. Id. At step three, the ALJ found that none of Ms. Jones’s impairments, alone or in
combination, met or medically equaled a Listing. AR 22–24. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Ms. Jones’s RFC. AR 24–29. The ALJ
found that:
[C]laimant has the residual functional capacity to perform a full range of work at
all exertional levels but with the following nonexertional limitations: she is
limited to work that requires her to understand, remember, and carry out only
simple instructions and make simple decisions, and working primarily with things
rather than with people. She can attend, concentrat[e], maintain pace and
persistence on this limited range of tasks for two (2) hours at a time before taking
a normally scheduled break, and then returning to work, throughout the workday.
AR 24.
At step four, the ALJ concluded that Ms. Jones was unable to perform her past relevant
work as a receptionist. AR 29. The ALJ found Ms. Jones not disabled at step five, concluding
that she still could perform jobs that exist in significant numbers in the national economy, such
as an addresser, warehouse checker, and bundle clerk in a laundry. AR 30.

4

Ms. Jones requested review by the Appeals Council, which, on February 26, 2015, denied
the request. AR 9–16. Ms. Jones requested an extension of time to file her appeal. AR 4–7.
The SSA granted Ms. Jones an additional 30 days from August 28, 2015 to file her appeal. AR
1–2. Ms. Jones timely appealed to this Court on September 22, 2015. Doc. 1.
IV.

Ms. Jones’s Claims
Ms. Jones raises several arguments for reversing and remanding this case: (1) the ALJ

erred by failing to incorporate portions of Dr. Walker’s medical opinion into her RFC; (2) the
ALJ impermissibly picked and chose from the limitations noted by consultative psychiatric
examiner Dr. Hughson; (3) the ALJ failed to provide adequate reasons for rejecting the opinions
of treating therapists Ortiz and Gallegos; (4) the ALJ failed to express the RFC in terms of workrelated mental activities; (5) the ALJ failed to perform the required analysis under Trimiar for
cases with low numbers of jobs in the national economy. Because I remand based on the ALJ’s
failure to adequately address the limitations noted in the opinion of Dr. Walker, I do not address
the other alleged errors, which “may be affected by the ALJ’s treatment of this case on remand.”
Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
V.

The ALJ Erred by Failing to Either Incorporate, or Explain Why He Rejected,
Limitations Noted in the Medical Report of Non-Examining State Agency
Psychiatrist Dr. Scott Walker.
Ms. Jones argues that the ALJ committed legal error by failing to incorporate, without

explanation, several moderate limitations assessed by Dr. Scott Walker into her RFC. Doc. 15 at
12–14. The Commissioner argues that the ALJ is not required to incorporate or reject the
limitations noted in Section I of Dr. Walker’s Mental Residual Functional Capacity Assessment
(“MRFCA”), as only Section III contains the doctor’s actual “mental residual functional capacity

5

assessment.” Doc. 19 at 16–17. For the reasons discussed below, I find that the ALJ committed
legal error in assessing the opinion of Dr. Walker.
Although an ALJ need not discuss every piece of evidence, he or she is required to
discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d
1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)).
Specifically, when assessing a plaintiff’s RFC, an ALJ must explain what weight is assigned to
each opinion and why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996). “If the RFC
assessment conflicts with an opinion from a medical source, the adjudicator must explain why
the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7. “[T]here is no requirement
in the regulations for a direct correspondence between an RFC finding and a specific medical
opinion on [a specific] functional capacity” because “the ALJ, not a physician, is charged with
determining a claimant’s RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288
(10th Cir. 2012) (alteration and internal quotation marks omitted)); see also Wells v. Colvin, 727
F.3d 1061, 1071 (10th Cir. 2013) (“exact correspondence between a medical opinion and the
mental RFC is not required”). Nevertheless, “[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.” Chapo, 682 F.3d at 1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th
Cir. 2007)). An ALJ “must discuss the uncontroverted evidence he chooses not to rely upon, as
well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th
Cir. 1996). Ultimately, an ALJ is required to weigh medical source opinions and to provide
“appropriate explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL
374183, at *5; see also Keyes-Zachary, 695 F.3d at 1161 (same) (citing 20 C.F.R.
§§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)).

6

In 2007, the Tenth Circuit Court of Appeals decided two cases that control here. First, in
Haga, the court held that an ALJ erred in failing to explain why he adopted some of a
consultative examiner’s (“CE”) restrictions but rejected others. 482 F.3d at 1208. “[T]he ALJ
did not state that any evidence conflicted with [the CE’s] opinion or mental RFC assessment. So
it is simply unexplained why the ALJ adopted some of [the CE’s] restrictions but not others.” Id.
The court remanded the case “so that the ALJ [could] explain the evidentiary support for his
RFC determination.” Id. Later in 2007, in Frantz v. Astrue, 509 F.3d 1299, 1302−03 (10th Cir.
2007), the Tenth Circuit expressly applied Haga and its reasoning to the opinions of nonexamining physicians.
The ALJ assigned “great weight” to the medical source opinion of Dr. Scott Walker, a
non-examining state agency psychiatrist. AR 28. In Section I of his September 21, 2012
MRFCA, Dr. Walker found that Ms. Jones had the following limitations:
•
•
•
•
•
•
•
•
•
•
•

Moderate limitation in the ability to carry out detailed instructions;
Moderate limitation in the ability to maintain attention and concentration for
extended periods;
Moderate limitation in the ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances;
Moderate limitation in the ability to sustain an ordinary routine without special
supervision;
Moderate limitation in the ability to work in coordination with or in proximity to
others without being distracted by them;
Moderate limitation in the ability to complete a normal workday and workweek
without interruptions from psychologically-based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods;
Moderate limitation in the ability to interact appropriately with the general public;
Moderate limitation in the ability to accept instructions and respond appropriately
to criticism from supervisors;
Moderate limitation in the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes;
Moderate limitation in the ability to maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness;
Moderate limitation in the ability to respond appropriately to changes in the work
setting;

7

•

Moderate limitation in the ability to set realistic goals or make plans
independently of others.

AR 92–93.
In Section III of his MRFCA, Dr. Walker found that:
[C]laimant can understand, remember, and carry out simple instructions, make
simple decisions, attend and concentrate for two hours at a time, interact
adequately with co-workers and supervisors, and respond appropriately to
changes in a routine work setting.
AR 93.
The ALJ assessed Dr. Walker’s opinion as follows:
[T]he opinion of Scott Walker, M.D., was fully consistent with the medical
evidence . . . . Dr. Walker opined that the claimant was able to perform unskilled
work. He fur[th]er opined that her ability to maintain social functioning and her
ability to maintain concentration, persistence, or pace were moderately limited.
Therefore the undersigned gave the opinion of . . . Dr. Walker great weight to the
extent [it] is consistent with the residual functional capacity indicated herein.
AR 28 (internal citations omitted).
The ALJ found that Ms. Jones had the RFC to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: she is limited to work that requires her to understand,
remember, and carry out only simple instructions and make simple decisions, and
working primarily with things rather than people. She can attend, concentrate[e],
maintain pace and persistence on this limited range of tasks for two (2) hours at a
time before taking a normally scheduled break, and then returning to work,
throughout the workday.
AR 24.
The Commissioner contends that the ALJ is not required to account for the limitations in
Section I of Dr. Walker’s MRFCA because Section I is not the doctor’s RFC assessment. Doc.
19 at 16–17. The Commissioner argues that the ALJ need only account for the limitations
noted in Section III of Dr. Walker’s MRFCA. Id. at 17. For the reasons stated below, I find the
Commissioner’s arguments unpersuasive.
As the Honorable Stephan M. Vidmar thoroughly explained in his opinion rejecting
nearly identical arguments, the Social Security Program Operations Manual System (“POMS’),

8

regulations, and case law require the ALJ to address all of Dr. Walker’s findings, not just those
in Section III. See Silva v. Colvin, 203 F. Supp. 3d 1153 at 1158–64 (D.N.M. 2016).
Specifically, “findings of fact made by State agency . . . psychological consultants and other
program physicians and psychologists become opinions at the administrative law judge . . .
level[] of administrative review . . . and requires administrative law judges . . . to consider and
evaluate these opinions when making a decision in a particular case.” POMS § DI 24515.013. 5
Further, “[b]ecause State agency medical and psychological consultants and other program
physicians and psychologists are experts in the Social Security disability programs, the rules in
20 CFR [§§] 404.1527(f) and 416.927(f) require administrative law judges . . . to consider their
findings of fact about the nature and severity of an individual’s impairment(s) as opinions of
nonexamining physicians and psychologists. Administrative law judges . . . are not bound by
findings made by State agency . . . psychologists, but they may not ignore these opinions and
must explain the weight given to the opinions in their decisions.” Id. And although ALJs also
“must consider and evaluate” a program physician’s or psychologist’s Section III RFC, Section I
findings are not exempt from this scrutiny. See id.
Social Security regulations also require ALJs to “consider findings and other opinions of
State agency medical and psychological consultants and other program physicians,
psychologists, and other medical specialists as opinion evidence . . . .” 20 C.F.R.
§§ 404.1527(e)(2)(i), 416.927(e)(2)(i). “Evidence” includes “findings . . . made by State agency
medical and psychological consultants and other program physicians and psychologists . . ., and
opinions expressed by medical experts or psychological experts that we consult based on their
5

SSR 96-6p, on which POMS § DI 24515.013 was based, was rescinded and replaced by SSR
17-2p on March 27, 2017. See https://www.ssa.gov/OP_Home/rulings/di/01/SSR96-06-di01.html. SSR 96-6p interpreted 20 C.F.R. §§ 404.1527 and 416.927, the regulations governing
the evaluation of opinion evidence for claims filed before March 27, 2017.
9

review of the evidence in your case record.” 20 C.F.R. §§ 404.1512(b)(1)(viii) (effective April
20, 2015 to March 26, 2017), 416.912(b)(1)(viii) (effective April 20, 2015 to March 26, 2017).
Like the POMS, the regulations do not exempt the Section I findings from an ALJ’s
consideration and evaluation. See id.
Case law also requires ALJs to consider the entire MRFCA, not just the Section III
findings. The Court has surveyed the cases from the Tenth Circuit that expressly address the
distinction between Section I and Section III findings. Two cases, Smith v. Colvin, 821 F.3d
1264 (10th Cir. 2016) and Sullivan v. Colvin, 519 F. App’x 985 (10th Cir. 2013) (unpublished),
arguably could be interpreted in the Commissioner’s favor, but the others could not. Compare
Smith, 821 F.3d at 1269 n.2 6 (“Ms. Smith questions how the [ALJ]’s [RFC] assessment
incorporates the moderate limitations indicated by Dr. Frommelt. . . . This is the wrong question.
. . . Dr. Frommelt’s notations of moderate limitations served only as an aid to her assessment of
residual functional capacity. We compare the [ALJ]’s findings to Dr. Frommelt’s opinion on
residual functional capacity, not her notations of moderate limitations.”), and Sullivan, 519 F.
App’x at 989 (acknowledging the POMS’ distinction between Section I and Section III, rejecting
the plaintiff’s argument that the Section I limitations are “in addition to those in Section III,” and
finding that the ALJ had relied on the Section III findings and was not required to discuss the

6

In Smith, the court held that the ALJ did not err in failing to repeat moderate nonexertional
limitations from a medical opinion because the limitations were incorporated into the RFC. 821
F.3d at 1269. To the extent that Smith suggests that an ALJ may ignore a consulting
psychologists Section I findings, that suggestion is inconsistent with the Tenth Circuit’s earlier
decisions in Haga, 482 F.3d at 1208 (“ALJ should have explained why he rejected four of the
moderate restrictions on Dr. Rawlings’ RFC assessment while appearing to adopt the others”),
and Frantz, 509 F.3d at 1302–03 (“ALJ erred in accepting some of the moderate limitations in
the Mental RFC form completed by Dr. Garnand, a nonexamining physician, but rejecting others
without discussion”). However, one panel of the court cannot overrule another, United States v.
Brown, 400 F.3d 1242, 1256 (10th Cir. 2005), and earlier panel decisions control over later ones,
Storagecraft Tech. Corp. v. Kirby, 744 F.3d 1183, 1191 n.2 (10th Cir. 2014).
10

Section I findings), with Nelson v. Colvin, No. 15-6226, 2016 WL 3865856 (10th Cir. July 12,
2016) (unpublished) (referring to the doctor’s Section I findings versus his Section III findings
but ultimately deciding that the ALJ’s RFC accounted for all of the Section I findings (as
opposed to finding that the ALJ was free to disregard the Section I findings entirely)), Lee v.
Colvin, 631 F. App’x 538, 541 (10th Cir. 2015) (unpublished) (finding that the POMS’
distinction between the purposes of Section I and Section III “does not mean, of course, that the
ALJ should turn a blind eye to any moderate limitations enumerated in Section I that are not
adequately explained in Section III”), Fulton v. Colvin, 631 F. App’x 498, 502 (10th Cir. 2015)
(unpublished) (“Where a psychologist’s Section III narrative does not contradict any Section I
limitations and describes the effect each Section I limitation would have on the claimant’s mental
RFC, the ALJ may properly look to only the Section III narrative as the psychologist’s opinion
regarding mental RFC. The ALJ did so here . . . . And we do not see any contradiction between
Sections I and III of Dr. Kendall’s [report] or any failure to describe in Section III the effects of
any Section I limitations on [the plaintiff]’s capacity for work.”) (internal citations omitted),
Carver v. Colvin, 600 F. App’x 616, 618–19 (10th Cir. 2015) (unpublished) (acknowledging the
POMS’ distinction between Section I and Section III, but holding that ALJ may not “turn a blind
eye to moderate Section I limitations,” and ultimately finding that the Section I limitations at
issue were accounted for in the Section III findings), and Jaramillo v. Colvin, 576 F. App’x 870,
874 (10th Cir. 2014) (unpublished) (acknowledging the POMS’ distinction between Section I
and Section III, analyzing whether the ALJ’s RFC (presented to the VE in a hypothetical
question) “adequately account[ed]” for the Section I findings, and ultimately finding that the
Section I limitations at issue were accounted for in the ALJ’s RFC). While some of these cases
suggest that an ALJ may rely exclusively on the Section III findings, they do so with an

11

important caveat: the Section III findings must adequately account for the Section I findings.
The case law therefore requires ALJs to consider all of the findings made in medical source
opinions, including the Section I findings.
Thus, under Haga, 482 F.3d at 1208, and Frantz, 509 F.3d at 1302–03, the ALJ has a
duty to explain why he rejected the moderate limitations noted in Section I of Dr. Walker’s
MRFCA. See also Jaramillo, 576 F. App’x at 876 (10th Cir. 2014) (“moderate limitations must
be accounted for in an RFC finding and, consequently, in a dispositive hypothetical to a VE”).
The Court must determine whether the ALJ adequately accounted for the limitations noted by
Dr. Walker in the RFC assessment. See Carver, 600 F. App’x at 619 (“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”). If
not, the Court must determine whether the ALJ adequately explained why he rejected the
missing limitations.
As an initial matter, the Court finds that Dr. Walker’s Section III summary fails to
sufficiently account for the moderate limitations assessed in Section I. For example, Dr.
Walker’s Section III findings fail to describe the effect of the Section I finding that Ms. Jones
had a “moderate limitation in the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods.” AR 92. Because Dr. Walker’s Section III
summary does not encapsulate this moderate limitation, the ALJ was required to discuss this
limitation in his RFC findings. As the ALJ did not do so, remand is appropriate. In addition, Dr.
Walker’s Section I and Section III findings about Ms. Jones’s ability to get along with

12

supervisors conflict. In Section I, Dr. Walker found that Ms. Jones had a “moderate limitation”
in her ability “to accept instructions and respond appropriately to criticism from supervisors.”
AR 92. However, in Section III, without any narrative explanation, Dr. Walker found that Ms.
Jones could “interact adequately with co-workers and supervisors.” Id. Because Dr. Walker’s
Section III narrative does not incorporate his Section I finding of a moderate limitation, and
because the ALJ failed to explain why he rejected this limitation, remand is required. See
Carver, 600 F. App’x at 619.
The parties do not address each omitted limitation individually. The Court will not do so
either, as remand is required given that the ALJ omitted at least two critical limitations from the
RFC without adequate discussion.
First, the ALJ failed to either include in the RFC or explain why he rejected the moderate
limitation Dr. Walker found in Ms. Jones’s ability to interact with supervisors. In the RFC, the
ALJ limited Ms. Jones to “working primarily with things rather than people.” AR 24. However,
this is not expressed as a work-related mental function and does not encompass the moderate
limitation Dr. Walker found in Ms. Jones’s ability to interact with supervisors. The Tenth
Circuit has held that where a claimant is found to have more than mild mental limitations in
work-related functions, the ALJ must “express those impairments ‘in terms of work-related
functions’ or ‘[w]ork-related mental activities.’” Jaramillo, 576 F. App’x at 876 (quoting SSR
96-8p, 1996 WL 374184, at *6). A claimant’s ability to interact with supervisors is a workrelated mental ability which is critical to all work, and the ALJ must adequately address it in the

13

RFC. 7 The ALJ’s failure to address this basic work-related mental function in the RFC requires
remand.
Second, the ALJ failed to adequately address Ms. Jones’s limitation in her ability to
complete a normal workday and workweek without interruptions, and to perform at a consistent
pace without an unreasonable number and length of rest periods. Dr. Walker found that Ms.
Jones had a “moderate limitation in the ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods.” AR 92. The ALJ did not point to
any evidence contradicting the fact that Ms. Jones has a moderate impairment in this area.
However, the ALJ failed to discuss why he rejected this limitation. The mental abilities needed
for any job include “the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and perform at a consistent pace without an

7

“The RFC assessment must first identify the individual’s functional limitations or restrictions
and assess his or her work-related abilities on a function-by-function basis, including the
functions in paragraphs (b), (c), and (d) of 20 C.F.R. [§§] 404.1545 and 416.945.” SSR 96-8p,
1996 WL 374184, at *1. This means the ALJ must consider how the claimant’s impairments
affect her physical abilities, mental abilities, and other abilities. An ALJ must consider all of
the following when assessing a claimant’s mental abilities:
When we assess your mental abilities, we first assess the nature and extent of your
mental limitations and restrictions and then determine your residual functional
capacity for work activity on a regular and continuing basis. A limited ability to
carry out certain mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting, may reduce your
ability to do past work and other work.
20 C.F.R. §§ 404.1545(c), 416.945(c); see also SSR 96-8p, 1996 WL 374184, at *6 (“Workrelated mental activities generally required by competitive, remunerative work include the
abilities to: understand, carry out, and remember instructions; use judgment in making workrelated decisions; respond appropriately to supervision, co-workers and work situations; and deal
with changes in a routine work setting.”) In formulating the RFC, an ALJ must perform a
function-by-function assessment of these work-related functions, considering all of the relevant
evidence in the case record. SSR 96-8p, 1996 WL 374184, at *2.
14

unreasonable number and length of rest periods.” POMS § DI 25020.010,
http://policy.ssa.gov/poms.nsf/lnx/0425020010. “These requirements are usually strict.” Id.
Because this ability is a general requirement for all jobs, the ALJ must address this limitation in
formulating Ms. Jones’s RFC. See Bowers v. Astrue, 271 F. App’x 731, 733–34 (10th Cir. 2008)
(unpublished) (noting that a moderate limitation in another ability required for all jobs—the
ability to respond appropriately to changes in a routine work setting—could decrease ability to
perform simple or unskilled work because it is a general work requirement). 8 The ALJ failed to
adequately address this limitation, and remand is therefore appropriate.
The Commissioner argues that the ALJ’s RFC adequately captured Ms. Jones’s mental
limitations because the ALJ limited her to unskilled work, which by definition “ordinarily
involve[s] dealing primarily with objects, rather than with data or people and generally
provide[s] substantial vocational opportunity for person[s] with solely mental impairments who
retain the capacity to meet the intellectual and emotional demands of such jobs on a sustained
basis.” Doc. 19 at 14 (quoting SSR 85-5, 1985 WL 56857, at *4). This circular argument begs
the question of whether Ms. Jones can meet the demands of unskilled work on a sustained
basis—such as interacting appropriately with supervisors. “A limitation to ‘simple work’ or
‘unskilled jobs’ is generally insufficient to address a claimant’s mental impairments.” Groberg
v. Astrue, 505 F. App’x. 763, 770 (10th Cir. 2012) (unpublished) (citing Chapo, 682 F.3d at 1290
n.3). “A moderate impairment is not the same as no impairment at all.” Haga, 482 F.3d at 1208.
Before concluding that Ms. Jones can do unskilled work, the ALJ must complete a mental
function-by-function assessment. See note 7, supra.

8

Dr. Walker also found that Ms. Jones had a “moderate limitation in the ability to respond
appropriately to changes in the workplace setting.” AR 93. The ALJ also failed to adopt, or
state why he rejected this limitation.
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As discussed above, the ALJ failed to sufficiently account for Ms. Jones’s limitations in
her ability to get along with supervisors, and in her ability to complete a normal workday and
workweek without interruptions and to perform at a consistent pace without an unreasonable
number and length of rest periods. Under Haga and Frantz, the ALJ must either adopt these
moderate limitations, or explain why he rejected them.
VI.

Conclusion
The ALJ erred in failing to incorporate several moderate limitations assessed by Dr.

Walker into Ms. Jones’s RFC, without explanation. I remand so that the ALJ can explain the
evidentiary basis for his RFC determination and his reasons for rejecting portions of the
uncontroverted evidence.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 15) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED,
and this case is REMANDED for further proceedings in accordance with this opinion.

________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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