Montoya v. Social Security Administration

Filing 25

ORDER by Magistrate Judge Laura Fashing granting 18 Motion to Remand to Agency. (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VANESSA LYNNE MONTOYA,
Plaintiff,
v.

1:16-cv-00021-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 Vanessa Lynne Montoya’s Motion
to Reverse and Remand (Doc. 18), which was fully briefed September 7, 2016. Docs. 22, 23, 24.
The parties consented to my entering final judgment in this case. Docs. 4, 11, 12. Having
meticulously reviewed the entire record and being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) failed either to incorporate, or to explain why he rejected,
limitations assessed by the two consulting psychologists who examined Ms. Montoya. The ALJ
also failed to adequately develop the record to determine whether Ms. Montoya suffers from an
intellectual disability that meets or equals the requirements of a Listing. I therefore GRANT Ms.
Montoya’s motion and remand this case to the Commissioner for proceedings consistent with
this opinion.

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). 

I.

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

decision2 is supported by substantial evidence and whether the correct legal standards were
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)).

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.
2

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
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
Listings3 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.

3

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

3

III.

Background and Procedural History
Ms. Montoya was born in 1986 and completed some middle school. AR 42–44, 71.4 She

testified that she attempted to attend a high school for six or seven months, but she dropped out
“because [she] didn’t understand it.” AR 43. She testified she was in special education the
entire time she was in school. AR 44–45. She was in special education because she could not
“do math,” nor could she “read or write.” AR 45. She believed that she may have attained a
second or third grade reading level, and thought that her school should have records of that. Id.
Ms. Montoya had worked in the past for several fast food restaurants, but she was fired
for various reasons. See AR 46, 51–52, 247–48, 283. She was self-employed as a house cleaner
from about 2010 to 2012. See AR 60, 248–49, 283. Beginning in 2013, she worked part-time as
a care giver for her mother and step-father. See AR 32–34, 245–46.
Ms. Montoya filed applications for disability insurance benefits and supplemental
security income on January 10, 2013, alleging disability since December 1, 2011, due to a torn
ligament and water in both knees, mental problems, a learning disability, and stroke. AR 223–
29, 258. The Social Security Administration (“SSA”) denied her claims initially on July 26,
2013. AR 155–61. The SSA denied her claims on reconsideration on September 24, 2013. AR
164–73. Ms. Montoya requested a hearing before an ALJ. AR 174–76. On April 15, 2015, ALJ
Eric Weiss held a hearing. AR 27–68. ALJ Weiss issued his unfavorable decision on June 5,
2015. AR 8–26.
At step one, the ALJ found that Ms. Montoya had not engaged in substantial, gainful
activity since December 1, 2011. AR 13. Because Ms. Montoya had not engaged in substantial
gainful activity for at least twelve months, the ALJ proceeded to step two. Id. At step two, the

4

Documents 15-1 through 15-13 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.
4

ALJ found that Ms. Montoya suffered from the following severe impairments: left knee anterior
cruciate ligament tear, medial meniscus tear, lateral meniscus tear status post ACL reconstruction
hamstring autograft, medial meniscus repair, and partial lateral menisectomy; learning disability
in reading and mathematics; depressive disorder; and paranoid personality traits. AR 13–14. At
step three, the ALJ found that none of Ms. Montoya’s impairments, alone or in combination, met
or medically equaled a Listing. AR 14–16. The ALJ specifically considered and rejected the
possibility that Ms. Montoya’s mental impairments, singly or in combination, met or medically
equaled the criteria of Listings 12.04 and 12.06, relating to depressive disorders and anxiety and
obsessive-compulsive disorders, respectively. Id. The ALJ did not consider whether Ms.
Montoya’s mental impairments met or medically equaled the criteria of Listing 12.05, relating to
intellectual disorders, despite Ms. Montoya’s request that he do so. See AR 14–16, 30, 66, 329–
30.
Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms.
Montoya’s RFC. AR 16–19. The ALJ found that:
the claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except the claimant is able to lift 20
pounds occasionally and lift or carry 10 pounds frequently, and push or pull the
same. She may walk or stand for 6 hours per 8 hour day and sit for 6 hours per 8
hour day with normal breaks. She may occasionally climb ramps and stairs but
never ladders, ropes and scaffolds. She may occasionally balance, stoop, crouch,
kneel and crawl. She must avoid more than frequent exposure to moving
machinery and unprotected heights. She is able to understand, carry out, and
remember simple instructions and make commensurate work related decisions.
She is able to maintain concentration, persistence and pace for 2 hours at a time
with normal breaks throughout the workday. She is limited to occasional
interaction with co-workers and supervisors but no interaction with the public. In
addition, I have determined the claimant has the ability to perform no more than
the full range of light work with above-stated limitations or extensions. Unless
otherwise noted, the claimant can lift, carry, push or pull no more than 20 pounds
at a time and frequently lift, carry, push or pull objects weighing up to 10 pounds.
“Frequent” means occurring from one-third to two-thirds of an eight-hour
workday. The claimant can walk off-and-on for no more than about six hours

5

during an eight-hour workday, stand off-and-on for no more than about six hours
during an eight-hour workday, and can stand or walk off-and-on for a total of
about six hours during an eight-hour workday. The claimant can sit for
approximately six hours total during an eight-hour workday. The claimant may
stoop occasionally, which means stooping for very little up to one third of an
eight-hour workday.
AR 16.
At step four, the ALJ concluded that Ms. Montoya was unable to perform her past
relevant work as a house cleaner and “home attendant.” AR 20, 59–61. The ALJ found Ms.
Montoya not disabled at step five, concluding that she still could perform jobs that exist in
significant numbers in the national economy, such as a “cleaner,” a “marker,” and a “hand
presser.” AR 20–21.
Ms. Montoya requested review by the Appeals Council, which, on December 3, 2015,
denied the request. AR 1–6, 344–50. Ms. Montoya timely appealed to this Court on January 12,
2016. Doc. 1.
IV.

Ms. Montoya’s Claims
Ms. Montoya raises three arguments for reversing and remanding this case: (1)

substantial evidence does not support the RFC because the ALJ failed to offer legally sufficient
reasons for rejecting some of the findings and opinions of two consulting psychologists and the
consulting doctor; (2) the ALJ failed to adequately develop the record regarding Ms. Montoya’s
cognitive functioning; and (3) the ALJ improperly relied on the vocation expert’s (“VE”)
testimony because the hypothetical posed to the VE did not include all Ms. Montoya’s
limitations. I remand because the ALJ failed to offer legally sufficient reasons for rejecting some
of the findings and opinions of two consulting psychologists and failed to adequately develop the
record regarding Ms. Montoya’s cognitive functioning. I do not address the other alleged errors

6

as they “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 Either to Incorporate, or to Explain Why He
Rejected, Limitations Noted in the Reports of Examining Consulting
Psychologists Dr. Finian Murphy and Dr. Amy DeBernardi.
Ms. Montoya argues that the ALJ committed legal error by failing to incorporate, without

explanation, limitations assessed by consulting psychologists Dr. Finian Murphy and Dr. Amy
DeBernardi into Ms. Montoya’s RFC. Doc. 18 at 16–19. The Commissioner argues that the
ALJ reasonably assessed and adopted the limitations expressed in both doctors’ opinions. Doc.
22 at 9–12. For the reasons discussed below, I find that the ALJ committed legal error in
assessing the opinion of Dr. Murphy. Dr. DeBernardi’s opinion, however, was unclear, and on
remand the ALJ will have the opportunity to clarify whether Ms. Montoya’s RFC adequately
encompasses the limitations assessed by Dr. DeBernardi, or explain why he is rejecting some of
them.
“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,

7

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)).
In Haga, the Tenth Circuit 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.
Here, the ALJ assigned “great weight” to the medical source opinion of Dr. Finian
Murphy, a consultative examining psychologist. AR 18. Dr. Murphy examined Ms. Montoya
on May 17, 2011, and found that Ms. Montoya had the following limitations:




Moderate to marked limitation in the ability to understand verbal and written
instructions;
Moderate to marked limitation in the ability to carry out instructions;
Moderate to marked limitation in concentration and persistence.

AR 486.
The ALJ also assigned “great weight” to the medical source opinion of Dr. Amy
DeBernardi, another consultative examining psychologist. AR 18. Dr. DeBernardi examined
Ms. Montoya on April 18, 2013, approximately two years after Dr. Murphy’s examination. AR
423. Dr. DeBernardi found that Ms. Montoya had “long standing issues related to depression
and paranoia,” which “appear[ed] to be impacting her functioning to a significant degree.” AR

8

426. Her functional assessment of Ms. Montoya’s limitations was that Ms. Montoya’s
“[i]mmediate memory is fair,” her “[s]ustained concentration and persistence are also fair,” and
her “[a]daptive skills and ability to tolerate stress are limited.” Id.
The ALJ assessed Dr. Murphy and Dr. DeBernardi’s opinions together, as follows:
Amy DeBernardi, Psy.D., and Finian Murphy, Ed.D., consultative examiners,
completed assessments of the claimant’s mental impairments. The assessments
completed medical source statements indicating moderate limitations in both
social functioning and concentration, persistence, and pace. . . . The opinions of
the doctors are given great weight because they are consistent with the treatment
notes, consultative exams, GAF scores, subjective complaints, mental status
exams, and her activities of daily living, as discussed above.
AR 18.
To accommodate Ms. Montoya’s mental limitations, the ALJ found that Ms. Montoya
had the RFC to:
to understand, carry out, and remember simple instructions and make
commensurate work related decisions. She is able to maintain concentration,
persistence and pace for 2 hours at a time with normal breaks throughout the
workday. She is limited to occasional interaction with co-workers and
supervisors but no interaction with the public.
AR 16. In essence, the ALJ rejected Dr. Murphy’s determination that Ms. Montoya was
moderately to markedly limited in her ability to carry out any instructions; Dr. Murphy did not
limit his assessment to “detailed” instructions. The ALJ also decided, without explanation, that
Ms. Montoya was only moderately limited, not markedly limited, in her ability to understand and
carry out instructions. Similarly, the ALJ decided, without explanation, that Ms. Montoya was
only moderately limited in persistence and pace, not markedly so. The ALJ did not explain why
he only partially adopted Dr. Murphy’s assessment.
Whether the ALJ actually adopted the limitations assessed by Dr. DeBernardi is less
clear, as Dr. DeBernardi did not express her opinion in the same terms used by the ALJ and the
SSA. For example, Dr. DeBernardi opined that Ms. Montoya’s long standing depression and

9

paranoia impacted her functioning to a “significant degree,” but it is not clear whether
“significant” means moderate or marked. See AR 426. Dr. DeBernardi also states that Ms.
Montoya’s “[a]daptive skills and ability to tolerate stress are limited,” but she does not say
whether they are moderately or markedly limited (or even mildly limited). On remand, the ALJ
will have an opportunity to clarify Dr. DeBernardi’s opinions regarding the extent of Ms.
Montoya’s mental limitations, and explain why he adopts those limitations in whole or in part.
The Commissioner contends that the ALJ’s RFC “was generally consistent with the
limitations assigned by Dr. Murphy,” and cites to three cases in which the Tenth Circuit held
that an RFC that limits a claimant to unskilled work sometimes is sufficient to accommodate a
claimant’s mental limitations. Doc. 22 at 10. Here, however, the three jobs that the ALJ found
Ms. Montoya capable of performing each had a specific vocational preparation (“SVP”) of 2.
Dictionary of Occupational Titles (“DOT”) # 209.587-034 (Marker), # 323.687-014 (Cleaner),
# 363.684.018 (Presser). The SVP is “the amount of lapsed time required by a typical worker
to learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” DOT, App’x C (4th ed., Rev. 1991). An SVP
of 2 indicates that a typical worker will need up to a month to learn how to do a particular job.
Id. Further, the ability to understand, remember, and carry out simple instructions is necessary
for even unskilled work. SSR 96-9p, 1996 WL 274185, at *9. Thus, the ALJ’s limitation to
jobs that only had SVPs of 2 did not necessarily accommodate Dr. Murphy’s assessment that
Ms. Montoya was at least moderately, and perhaps markedly, limited in her ability to carry out
any instructions.

10

The ALJ failed to sufficiently account for all the limitations found by Dr. Murphy.
Under Haga, the ALJ must either adopt these limitations, or explain why he rejected them.
Remand is therefore appropriate.
VI.

The ALJ Failed to Adequately Develop the Record.
Ms. Montoya also argues that the ALJ failed to adequately develop the record by failing

to order Wechsler Adult Intelligence Scale (WAIS) testing to further explore Ms. Montoya’s
cognitive functioning, and by failing to further “assess [Ms. Montoya’s] possible paranoid
disorder.” Doc. 18 at 22. The Commissioner responds that “the record was replete with
evidence concerning [Ms. Montoya’s] mental health, which consistently showed [her] symptoms
were not debilitating, and this evidence was sufficient to allow the ALJ to reach a conclusion
regarding [Ms. Montoya’s] functional limitations.” Doc. 22 at 17. Because the evidence in the
record established a reasonable possibility that WAIS testing and a further consultative exam
would materially assist in resolving the issue of disability, the ALJ had a duty to develop the
record further.
Although generally the burden to prove disability is on the claimant, the ALJ bears
responsibility for ensuring that “an adequate record is developed during the disability hearing
consistent with the issues raised.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004)
(internal citation and quotation omitted). An ALJ should order a consultative exam where there
is a direct conflict in the medical evidence requiring resolution, where the medical evidence in
the record is inconclusive, or where additional tests are required to explain a diagnosis already
contained in the record. Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997); see also 20
C.F.R. § 416.919a (describing the situations that may require a consultative examination). To
warrant further investigation, there must be “some objective evidence in the record suggesting

11

the existence of a condition which could have a material impact on the disability decision.”
Hawkins, 113 F.3d at 1167. If the claimant is represented by counsel, the ALJ ordinarily may
rely on counsel to identify any issues that require further development. Id. But if “evidence in
the record establishes the reasonable possibility of the existence of a disability and the result of
[a] consultative exam could reasonably be expected to be of material assistance in resolving the
issue of disability,” the ALJ should order the exam. Id. at 1169.
To meet the requirements of Listing 12.05,5 the claimant must satisfy that Listing’s
“capsule definition” in addition to one of the four “severity prongs” for an intellectual disability
as listed in the regulations. Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009). The capsule
definition for Listing 12.05 states: “Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports onset of the impairment
before age 22.” 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1, 12.05 (effective May 18, 2015 to
June 12, 2015). The severity prong found in 12.05C6—the provision at issue here—requires a
showing of a “valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant work-related limitation of function.”

5

The SSA has revised Listing 12.05, and the current version became effective March 27, 2017.
Because the SSA expects federal courts to review its “final decisions using the rules that were in
effect at the time [SSA] issued the decisions,” Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66,138 n.1 (Sept. 26, 2016), the Court has used the version of the Listing
that was in effect when the ALJ issued his decision. However, “[i]f a court reverses [the SSA’s]
final decision and remands a case for further administrative proceedings after the effective date
of these final rules, [the SSA] will apply these final rules to the entire period at issue in the
decision [the SSA] make[s] after the court’s remand.” Id.
6

The relevant Listing in effect now is 12.05B, which has similar IQ requirements, requires that
there be “significant deficits in adaptive functioning currently manifested by extreme limitation
of one, or marked limitation of two” of the listed areas of mental functioning, and evidence that
supports the conclusion that the disorder began prior to age 22. 20 C.F.R. Ch. III, Pt. 404, Subpt.
P, App. 1, 12.05B (effective March 27, 2017).
12

Id., 12.05C. “Standardized intelligence test results are essential to the adjudication of all cases of
intellectual disability that are not covered under the provisions of 12.05A.” 20 C.F.R. Ch. III, Pt.
404, Subpt. P, App. 1, 12.00B(6) (effective May 18, 2015 to June 12, 2015).
In this case, the evidence before the ALJ established the reasonable possibility of the
existence of an intellectual disability, and the result of a consultative exam that included a
standardized intelligence test was essential to the determination of whether Ms. Montoya met the
requirements of Listing 12.05C. Both Dr. Murphy and Dr. DeBernardi diagnosed Ms. Montoya
with unspecified learning disabilities in reading and math. AR 426, 486. Although Dr. Murphy
opined that Ms. Montoya was of “low average intelligence,” AR 489, his report did not disclose
how he made this determination. See AR 486–89. He did not identify any psychological test
used to determine her intelligence. See id.
In addition, Ms. Montoya testified that she had been in special education classes her
“whole life,” that she never finished the seventh or eighth grades, that she had tried to go to high
school but she couldn’t because she “didn’t understand it,” and that she believed that her school
records would establish that she could read at the second or third-grade reading level. AR 42–
45. Although four Disability Determination Explanations refer to a record of Ms. Montoya’s
“grades” from the charter high school that she briefly attended—notably, they do not state what
the grades were—none of her school records are in the administrative record. See AR 76, 96,
116–17, 137–38; Doc. 15-2 (listing all documents in the administrative record). And although
learning disabilities are not necessarily indicative of an intellectual disability, the current SSA
regulations recognize that a history of special education services and low academic performance
and functioning at school, along with low intelligence test scores, can support the finding of an
intellectual disability, and also that the disorder began before age 22. See 20 C.F.R. Ch. III, Pt.

13

404, Subpt. P, App. 1, 12.00H(4) (effective March 27, 2017). Several courts also have
recognized this connection. See, e.g., Havenar v. Astrue, 438 F. App’x 696, 697–99 (10th Cir.
2011) (unpublished) (ALJ was required to determine whether claimant who had “advanced
through seventh grade in a special education curriculum,” “dropped out of school due to
difficulty reading and writing,” and had “full scale IQ of 70” met the requirements of Listing
12.05C); Harrold v. Astrue, 299 F. App’x 783, 784–89 (10th Cir. 2008) (unpublished)
(remanding case to determine whether claimant who had graduated from high school attending
special education classes, had IQ test result showing full scale IQ of 61, and described himself as
having a learning disability, met the requirements of Listing 12.05C); Bull v. Colvin, No. Civ-14541, 2016 WL 1076927, at *2–5 (E.D. Okla. Mar. 3, 2016) (unpublished) (claimant with
learning disability, history of being educated in special education classes, and full scale IQ of 70,
in addition to being unable to perform his past relevant work, presented sufficient evidence to
meet the requirements of Listing 12.05C).7
The evidence before the ALJ was sufficient to warrant further development of the record.
Ms. Montoya’s educational history and poor work history, along with the uncontroverted
evidence of her learning disabilities in reading and math, “demonstrate[] or support[] onset of the
impairment before age 22.” 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1, 12.05 (effective May
18, 2015 to June 12, 2015). Indeed, Ms. Montoya was only 24 when Dr. Murphy examined her,
AR 487, and there is no evidence in the record to suggest that Ms. Montoya’s intellectual
limitations were a recent development. In addition, the ALJ found that Ms. Montoya had several
“physical or other mental impairment[s] [that] impos[ed] an additional and significant work                                                            
7

Although Ms. Montoya does not claim that the ALJ failed to adequately develop the record by
not obtaining her educational records, the cases that discuss Listing 12.05 certainly suggest that
educational records would be helpful and material to the ALJ’s determination of whether Ms.
Montoya’s mental impairments meet or equal Listing 12.05.
14

related limitation of function.” Id., 12.05C. Specifically, the ALJ found that Ms. Montoya
suffered from the severe impairments of a left knee anterior cruciate ligament tear, medial
meniscus tear, lateral meniscus tear status post ACL reconstruction hamstring autograft, medial
meniscus repair, and partial lateral menisectomy; learning disability in reading and math,
depressive disorder, and paranoid personality traits, which together prevented her from
performing her past relevant work. AR 13, 20; see Hinkle v. Apfel, 132 F.3d 1349, 1352 & n.4
(10th Cir. 1997) (adopting the view “that the § 12.05C limitation is significant if the claimant
suffers from a severe physical or other mental impairment, as defined at step two of the disability
analysis, apart from the decreased intellectual function” and noting “[n]eedless to say, a
claimant’s inability to perform his past relevant work would meet the second prong of §
12.05C”); Peck v. Barnhart, 214 F. App’x 730, 734 (10th Cir. 2006) (unpublished) (ALJ’s
finding that claimant’s other severe impairments of “anxiety related disorders and status post
cervical fusion with chronic neck pain” prevented claimant from performing her past relevant
work met “the additional significant impairment requirement under Listing 12.05(C)”). The only
missing information for a determination of whether Ms. Montoya met the requirements of
Listing 12.05C was a “valid verbal, performance, or full scale IQ of 60 through 70,” 20 C.F.R.
Ch. III, Pt. 404, Subpt. P, App. 1, 12.05C (effective May 18, 2015 to June 12, 2015). The ALJ
should have ordered a consultative exam that included IQ testing.
Further, Ms. Montoya’s counsel specifically requested that Ms. Montoya be given a
WAIS test before her hearing to aid in the determination whether she met the requirements of
Listing 12.05. AR 329–30. Her counsel reiterated this concern at the administrative hearing.
AR 66. The ALJ said that he would consider ordering the test if he thought it necessary “to
reach a full and fair decision,” AR 67, but ultimately he “did not find that WAIS testing was

15

necessary,” AR 19. In short, this was not a situation where neither the claimant nor her counsel
ever raised the issue. Wall v. Astrue, 561 F.3d 1048, 1062–65 (10th Cir. 2009) (rejecting
argument that ALJ failed to develop the record with regard to claimant’s alleged intellectual
disability in part because “[n]either Claimant nor her counsel ever argued that a cognitive
impairment contributed to Claimant’s ability to work”); Bland v. Astrue, 432 F. App’x 719, 723
(10th Cir. 2011) (unpublished) (“the evidence before the ALJ was far from sufficiently
compelling to require the ALJ to address explicitly Listing 12.05C in the absence of a request by
[claimant’s] counsel”). Given the evidence in the record that Ms. Montoya’s cognitive
impairments contributed to her inability to work, and given that her counsel specifically
requested further testing to determine whether Ms. Montoya met the requirements of Listing
12.05C, the ALJ erred in failing to develop the record adequately with regard to Ms. Montoya’s
alleged intellectual disability.8
The Commissioner argues only that “the record was replete with evidence concerning
Plaintiff’s mental health, which consistently showed Plaintiff’s symptoms were not debilitating,
and this evidence was sufficient to allow the ALJ to reach a conclusion regarding Plaintiff’s
functional limitations.” Doc. 22 at 17. The Commissioner’s statement that the record was
“replete” with evidence concerning Ms. Montoya’s mental health is an overstatement. The 495                                                            
8

As noted in footnotes 5 and 6, supra, the ALJ on remand will apply the current Listing, which
requires a particular IQ score as well as an “extreme limitation of one, or marked limitation of
two, of the following areas of mental functioning: (a) Understand, remember, or apply
information (see 12.00E1); or (b) Interact with others (see 12.00E2); or (c) Concentrate, persist,
or maintain pace (see 12.00E3); or (d) Adapt or manage oneself (see 12.00E4).” 20 C.F.R. Ch.
III, Pt. 404, Subpt. P, App. 1, 12.05B (effective March 27, 2017). Thus, if the ALJ again only
finds moderate limitations in these areas, he must explain why he is rejecting Dr. Murphy’s
assessment that she is moderately to markedly limited in her ability to concentrate and persist,
and to understand written and verbal instructions. Given that more than six years has passed
since Dr. Murphy’s examination, and it’s been more than four years since Dr. DeBernardi’s
exam, a consultative exam that specifically addresses all the current requirements of Listing
12.05B may be appropriate.
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page administrative record contains two psychological reports, totaling 8 pages, which describe
Ms. Montoya’s mental functioning. AR 423–26, 486–89. One report was completed in May
2011, and the second in April 2013. Id. These reports were completed after a one-time
consultative mental health exam, and only the second examiner, Dr. DeBernardi, reviewed any
records. See id. Dr. DeBernardi apparently reviewed the executive summary of Dr. Murphy’s
report. See AR 423. Neither examiner reviewed any other medical or educational records. See
AR 423, 487. The only other evidence in the record regarding Ms. Montoya’s mental health
(aside from her own testimony and reports, and those of her mother) were the mental residual
functional capacity assessments performed by non-examining psychologists Ralph Rabinowitz
and Carol Mohney. See AR 86–88, 106–08, 127–29, 148–50. These four assessments are
identical and comprise another 9 pages of the 495-page record. See id. They rely entirely on the
reports prepared by Dr. Murphy and Dr. DeBernardi, in addition to the record of Ms. Montoya’s
grades from the charter high school she attended. See AR 71–77, 91–97, 111–17, 132–39
(listing all records reviewed for both the physical and mental residual functional capacity
assessments). None of these doctors’ reports provide sufficient information for the ALJ to
determine whether Ms. Montoya’s impairments meet or equal Listing 12.05C. Because the
evidence in the record established the reasonable possibility of the existence of an intellectual
disability, the ALJ was required to further develop the record by ordering a consultative exam
that included an IQ test.
VII.

Conclusion

The ALJ erred by failing to either incorporate, or explain why he rejected, limitations
assessed by the two consulting psychologists who examined Ms. Montoya. In addition, the ALJ
erred by failing to adequately develop the record to provide sufficient information for a

17

determination as to whether Ms. Montoya’s impairments met or equaled Listing 12.05, relating
to intellectual disabilities. I remand so that the ALJ can develop the record sufficiently to
determine whether Ms. Montoya’s impairments meet or equal Listing 12.05, and if not, to either
incorporate, or explain why he rejects, any limitations found by any medical source, including
any consultative examining psychologists.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 18) 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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