Mark v. Social Security Administration

Filing 26

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting 16 Plaintiff's MOTION to Remand to Agency. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

CHESTER MARK,
Plaintiff,
v.

CIV 16-0357 KBM

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reverse and
Remand (Doc. 16), filed November 28, 2016. 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. Doc. 19. Having reviewed the parties’
submissions, the applicable law, and the relevant portions of the Administrative Record,
the Court will grant the Motion.
I.

Procedural History
In March 2013, Plaintiff protectively filed applications with the Social Security

Administration for disability insurance benefits (DIB) and supplemental security income
(SSI). AR at 171-86.2 At the time of his applications, Plaintiff alleged a disability onset

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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.
2

Documents 12-1 through 12-29 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.

date of January 31, 2010, due to “lower back injury, diabetes, nerve damage, HBP.” AR
at 214.
The agency denied Plaintiff’s claims initially and upon reconsideration. AR at
113, 119. Plaintiff requested review and, after holding a de novo hearing, Administrative
Law Judge Michael S. Hertzig (“the ALJ”) issued a partially favorable decision, finding
that Plaintiff did not meet the statutory requirements for disability prior to August 1,
2013, but that he became disabled on that date and continued to be disabled through
the date of his decision. AR at 9-23. The Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision on February 24, 2016. AR at 1. As such, the ALJ’s decision
became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003).
A claimant seeking disability benefits must establish that he 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. § 404.1505(a). The Commissioner must use a sequential
five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 404.1520(a)(4).3

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The Tenth Circuit recently summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333
n.1 (10th Cir. 2016):
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

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Here, the ALJ found at Step One of the process that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date. AR at 15. At Step Two, he
determined that Plaintiff suffered from the severe impairments of “diabetes mellitus,
disorders of the back and diabetic neuropathy,” AR at 15, and at Step Three, he
concluded that these impairments, individually and in combination, did not meet or
medically equal the regulatory “listings.” AR at 16.
When a claimant does not meet a listed impairment, the ALJ must determine his
residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a
multidimensional description of the work-related abilities a plaintiff retains in spite of his
medical impairments. 20 C.F.R. § 404.1545(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 (emphasis in original).
In his first RFC determination, the ALJ found that prior to August 1, 2013, Plaintiff
had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) and
§ 416.967(b) with the following restrictions:
The claimant could only occasionally climb ramps, stairs and never
climb ropes, ladders or scaffolds. He could frequently stoop, crouch
and crawl and unlimitedly balance and kneel. He had to avoid
concentrated exposure to extremes of cold, wetness, vibrations and
hazards such as machinery, heights, etc.
AR at 16. The ALJ also made a second RFC determination – that beginning on August
1, 2013, Plaintiff had the RFC to perform sedentary work with the same restrictions
enumerated in the first RFC but with the additional restriction that he could “only stand

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.

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and walk for less than two hours out of eight.” AR at 19. In other words, on August 1,
2013, Plaintiff’s RFC, as determined by the ALJ, shifted from light work to sedentary
work with a new two-hour standing/walking restriction.
Employing his first RFC, which accounted for Plaintiff’s limitations prior to August
1, 2013, the ALJ determined at Step Four that Plaintiff was able to perform his past
relevant work as a cashier, cook, and assistant manager, and, accordingly, that he was
not disabled. AR at 21. In contrast, when employing his second RFC, which accounted
for Plaintiff’s additional limitations beginning on August 1, 2013, the ALJ concluded that
Plaintiff was unable to perform his past relevant work. AR at 21. Moving on to Step Five,
the ALJ determined that there were no jobs existing in significant numbers in the
national economy that Plaintiff could perform based on the second RFC. AR at 22. As
such, the ALJ determined that Plaintiff was disabled as of August 1, 2013. AR at 22.
II.

Legal Standard
This 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).
However, in making this determination, 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).

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III.

Analysis
Although Plaintiff received a partially favorable determination – having been

found disabled beginning August 1, 2013 – he takes issue with the onset date
determined by the ALJ. While Plaintiff initially alleged that his disability began January
31, 2010, at the time of his administrative hearing he amended this onset date to April
10, 2011. AR at 34. As such, the period now at issue on Plaintiff’s Motion to Remand is
the period between Plaintiff’s alleged onset date and the date of his disability as
determined by the ALJ – from April 10, 2011 to August 1, 2013. According to Plaintiff,
the ALJ’s treatment of the opinions of his treating physician, Chris Percy, M.D.,
produced an erroneous onset date.
Plaintiff maintains that Dr. Percy’s 2013 and 2014 opinions should have been
given controlling weight. Doc. 16 at 6-9. He notes that he and Dr. Percy had a regular
and long-standing relationship, and he suggests that Dr. Percy’s statements were
supported by the medical evidence of record, including records from other doctors at
Northern Navajo Medical Center and at Four Corners Spine and Pain. Id. at 8. Likewise,
he insists that the functional abilities determined by Dr. Percy were consistent with the
household tasks that he completed. Id. He notes that the ALJ himself found Dr. Percy’s
2014 opinion consistent with the other medical evidence, affording that opinion “great
weight.” Id. (citing AR at 21). He suggests that if Dr. Percy’s opinions – both the 2013
opinion and the 2014 opinion – had been given controlling weight, however, the ALJ
would have found him disabled as of his amended onset date, April 10, 2011. Id.
The Commissioner admits that the ALJ’s opinion did not satisfy SR 96-2p, which
requires that an ALJ give good reasons for the weight assigned to a treating source’s

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opinion – reasons that are sufficiently specific to make clear the weight given and the
reasons for that weight. Doc. 23 at 9, 10. She concedes: “the ALJ’s discussion of Dr.
Percy’s May 2013 opinion fell short of these requirements.” Doc. 23 at 10. The
Commissioner insists, however, that the “absence of ALJ discussion about Dr. Percy’s
May 2013 opinion does not warrant reversal, where the opinion was controverted by Dr.
Percy’s own notes, by every other medical source, and by Plaintiff’s admissions about
his abilities in that period.” Doc. 23 at 8. The Commissioner maintains that any
“articulation deficiency” does not warrant reversal. Id. at 9. Under the circumstances
here, the Court disagrees.
“[C]ase law, the applicable regulations, and the Commissioner’s pertinent Social
Security Ruling (SSR) all make clear that in evaluating the medical opinions of a
claimant’s treating physician, the ALJ must complete a sequential two-step inquiry, each
step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir.
2011). First, the ALJ should determine whether the opinion is entitled to “controlling
weight.” Watkins, 350 F.3d at 1300. An ALJ is required to give the opinion of a treating
physician controlling weight if it is both: (1) “well-supported by medically acceptable
clinical and laboratory diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.” Id. (quotation omitted). “[I]f the opinion is deficient in either of
these respects, then it is not entitled to controlling weight.” Id.
Because the ALJ does not affirmatively state whether either of Dr. Percy’s
opinions are entitled to controlling weight, he may have skipped the first step under the
treating physician analysis and leapt directly to the second. In the past, this Court held
that skipping the first step in the analysis was reversible error. Wellman v. Colvin, CIV

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13-1122 KBM, Doc. 19 (D.N.M. Dec. 3, 2014). In fact, this result appeared mandatory
under established Tenth Circuit law. See Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003) (“A finding at this stage (as to whether the opinion is either unsupported
or inconsistent with other substantial evidence) is necessary so that we can properly
review the ALJ’s determination on appeal.”) (emphasis added); see also Robinson, 366
F.3d at 1083 (noting that the ALJ failed to expressly state whether an opinion would be
afforded controlling weight); Daniell v. Astrue, 384 F. App’x 798, 801 (10th Cir. 2010)
(unpublished) (quoting Watkins, 350 F.3d at 1300).
However, the Tenth Circuit has recently indicated that where a reviewing court
can determine that an ALJ “implicitly declined to give the opinion controlling weight,”
there is no ground for remand. Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014) (“Ms.
Mays argues that the ALJ did not expressly state whether he had given Dr. Chorley’s
opinion ‘controlling weight.’ But the ALJ implicitly declined to give the opinion controlling
weight. Because we can tell from the decision that the ALJ declined to give controlling
weight to Dr. Percy’s opinions, we will not reverse on this ground.”); see also Causey v.
Barnhart, 109 F. App’x 375, 378 (10th Cir. 2004) (unpublished) (“Implicit in the ALJ’s
decision is a finding that Dr. Waldrop’s opinion . . . is not entitled to controlling weight.”);
see also Andersen v. Astrue, 319 F. App’x 712, 721 (10th Cir. 2009) (unpublished) (“It is
apparent that the ALJ concluded that these opinions were not entitled to controlling
weight. Although ordinarily the ALJ should have made explicit findings to this effect . . .
we are not troubled by the substance of the ALJ’s determination.”).
Here, the ALJ ascribes “great weight” to Dr. Percy’s 2014 opinion, noting that his
“assessment is supported.” AR at 21. He stops short of giving the opinion “controlling”

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weight, however, and fails to offer any specific explanation for doing so. As to Dr.
Percy’s 2013 opinion, the ALJ does not specify any weight given to that opinion; indeed,
he fails to even mention it in his decision.
Even if Dr. Percy’s 2013 and 2014 opinions were not entitled to controlling
weight, “[t]reating source medical opinions . . . must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527” at the second step of the ALJ’s analysis. Watkins v,
350 F.3d at 1300 (quoting SSR 96–2p, 1996 WL 374188, at *4). The Tenth Circuit has
summarized these factors as:
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.
Krauser, 638 F.3d at 1331 (quoted authority omitted).
An ALJ is “not required ‘to apply expressly each of the six relevant factors in
deciding what weight to give a medical opinion.’” Razo v. Colvin, 663 F. App’x 710, 715
(10th Cir. 2016) (unpublished) (quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007)). Even so, the Tenth Circuit has cautioned that “[i]f the ALJ rejects [an]
opinion completely, he must then give specific, legitimate reasons for doing so.”
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)). Typically, so long as an ALJ provides
good reasons for discounting or rejecting a medical opinion, his or her failure to specify
the weight given that opinion is excusable. The question becomes, then, whether the

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ALJ offered legitimate reasons for giving Dr. Percy’s 2013 and 2014 opinions less than
controlling weight.
According to Dr. Percy, the Physical Residual Functional Capacity Questionnaire
(“RFC form”) that he completed on May 20, 2013, described Plaintiff’s symptoms and
limitations since 2010. AR at 418-22. In the RFC form, Dr. Percy indicated that he had
been treating Plaintiff for more than a decade, seeing him approximately every three
months. AR at 418. Diagnosing Plaintiff with lumbar disc degeneration with
radiculopathy and plantar fasciitis, Dr. Percy offered a prognosis of “slow decline.” AR at
418. While he indicated that Plaintiff was being treated with steroid injections, he
explained that Plaintiff was experiencing only “minimal relief.” AR at 418.
The ALJ failed to mention any of these 2013 opinions by Dr. Percy, leaving little
clue in his decision as to whether he considered them or why they were omitted from his
RFC determination. However, an exchange between the ALJ and Plaintiff’s counsel at
the administrative hearing sheds some light on why he may have failed to discuss them.
After suggesting that Plaintiff was limited to sedentary work “because of his medical
impairments, particularly his back pain,” the ALJ asked Plaintiff’s attorney which medical
evidence “put[] her client at sedentary.” AR at 34-35. Before the attorney could answer,
the ALJ quickly followed up with “[a]nd don’t tell me the RFC form that is illegible.”
AR at 36 (emphasis added). Given that the ALJ omitted any discussion of Dr. Percy’s
May 2013 RFC form, either in his decision or at the hearing, it appears that it was this
form, prepared by Dr. Percy, which the ALJ characterized as illegible.
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.

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That is, Dr. Percy expressed a number of opinions through the unambiguous checking
of boxes on the RFC form. For example, he opined that Plaintiff would be able to stand
or walk less than 2 hours out of the day. AR at 420. While he determined that Plaintiff
could sit for at least 6 hours, he indicated that he would need to alternate between
sitting and standing or walking approximately every 30 minutes. AR at 419-20. When
engaged in occasional standing or walking, Dr. Percy suggested that Plaintiff would be
required to use a cane or other assistive device. AR at 420. He specified that Plaintiff
should only occasionally lift items weighing less than ten pounds and that he should
never lift items weighing twenty or more pounds. AR at 420. Additionally, he opined that
Plaintiff should never engage in twisting, stooping, crouching or squatting, climbing
ladders, or climbing stairs. AR at 421. Dr. Percy estimated that, on average, he would
expect Plaintiff to be absent from work as a result of impairments or treatment more
than four days per month. AR at 421. None of these opinions can be characterized as
illegible and, yet, none of the opinions are discussed in the ALJ’s decision.
As to the portion of the RFC form that might be characterized as illegible,
particularly the first page of the form, illegibility alone was an inadequate reason for the
ALJ to wholly disregard the opinions therein. See Howze v. Comm’r of Social Security,
No. 14cv0503, 2015 WL 5212054 (S.D. Ohio Sept. 8, 2015) (reasoning that the fact
that the treating source opinions were “largely illegible” was an inadequate reason for
failing to give them any weight). Indeed, if the ALJ determined that that the illegibility of
the first page of 2013 RFC form rendered the balance of Dr. Percy’s conclusions without
sufficient support, he had a duty to recontact Dr. Percy for clarification of his opinion
before rejecting it on that basis. See Bryant v. Astrue, No. 06cv1305 WEB, 2007 WL

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2377079 (D. Kan. Aug. 14, 2007) (citing SSR 96-5p and concluding that the “largely
illegible nature of the treatment notes also requires that [the treating physician] be
recontacted”); White v. Barnhart, 287 F.3d 903 (2001) (noting that the inadequacy of
evidence received from a treating physician may trigger the duty to recontact).
Social Security Ruling 96-5p states the following:
Because treating source evidence (including opinion evidence) is
important, if the evidence does not support a treating source's opinion
on any issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record, the adjudicator
must make “every reasonable effort” to recontact the source for
clarification of the reasons for the opinion.
SSR 96-5P, 1996 WL 374183 (S.S.A. July 2, 1996). Here, the ALJ failed to articulate in
his decision any reasons for disregarding or discounting Dr. Percy’s May 2013 opinion.
If, as he suggested at the administrative hearing, he found portions of the RFC form
entirely illegible, this must have hindered his ability to determine whether the opinion
should be given controlling weight. Yet his decision offers no insight into his analysis of
that 2013 opinion or the weight to which it was entitled. Most importantly, the ALJ’s
failure to articulate in his decision why he discounted or rejected Dr. Percy’s May 2013
opinion leaves this Court unable to discern whether he did so for legitimate reasons,
and the Commissioner’s post hoc rationalizations are inadequate to provide such
reasons.
If Dr. Percy’s 2013 opinions had been consistent with the ALJ’s first RFC,
express analysis of Dr. Percy’s 2013 opinion might have been less critical. For, “[w]hen
the ALJ does not need to reject or weigh evidence unfavorably in order to determine a
claimant’s RFC, the need for express analysis is weakened.” Howard v. Barnhart, 379
F.3d 945, 947 (10th Cir. 2004). But, here, in order to reach his first RFC, the ALJ must

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have rejected certain of Dr. Percy’s 2013 opinions, including the following: that Plaintiff
would be able to stand or walk less than 2 hours out of the day, that he would need to
alternate between sitting and standing or walking approximately every 30 minutes, that
he would be required to use a cane or other assistive device, that he should only
occasionally lift items weighing less than ten pounds, that he should never lift items
weighing twenty or more pounds, and that Plaintiff should never engage in stooping,
crouching, squatting, or climbing stairs. If the ALJ had given controlling weight to these
opinions, it would have rendered an earlier onset date.
In his June 15, 2014 letter, which the ALJ did discuss, Dr. Percy explained that
he continued to serve as Plaintiff’s primary treating physician and that the opinions he
provided in his May 2013 RFC form remained “fully consistent with Mr. Mark’s current
physical status” at this time. AR at 567. In other words, Dr. Percy believed that the
limitations that Plaintiff had at the time of his 2013 opinion were consistent with those
that Plaintiff experienced in 2014. Dr. Percy’s general impression was that Plaintiff “will
continue to be limited by his chronic back pain and neuropathy for the foreseeable
future.” AR at 567. Specifically, he noted that Plaintiff continued to experience severe
back pain shooting into his legs. AR at 567. He explained that imaging of Plaintiff’s
spite revealed “degenerative disc disease throughout his lumbar spine, with a broadbased disc bulge at L5-S1.” AR at 567. Although he recounted that Plaintiff had
received injections to treat his symptoms, which provided “some relief for about a
month,” he noted that Plaintiff was taking pain medication to relieve his worst
symptoms. AR at 567. He described Plaintiff’s back pain as “fairly stable.” AR at 567.

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Consistent with the functional limitations that he found in May 2013, Dr. Percy
opined in his 2014 letter that Plaintiff would not be able to be on his feet for more than
two hours in an eight-hour workday. AR at 567. As before, he estimated that Plaintiff
would be unable to remain in a sitting position for more than 30 minutes and explained
that he would require the freedom to shift between sitting and standing. AR at 567.
Once again, he opined that Plaintiff would be unable to perform a job that required
twisting, stooping, crouching or squatting, climbing ladders, or climbing stairs. AR at
567.
In addition to the symptoms attributable to the degenerative disc disease in
Plaintiff’s lumbar spine, Dr. Percy noted that Plaintiff had also “been experiencing
worsening neuropathy symptoms in his feet.” AR at 567. He explained that as a result of
diabetic polyneuropathy, Plaintiff was experiencing decreased sensation to both feet,
which limited his ability to stand for extended periods of time. AR at 567. Plaintiff
suffered an ulcer on his right foot in August 2013, which required hospitalization and
which, according to Dr. Percy, continued to cause decreased sensation near the wound.
AR at 567. Additionally, Dr. Percy opined that Plaintiff’s standing and walking tolerance
was further limited by his plantar fasciitis, which had not been improved by inserts or
anti-inflammatory medication. AR at 567.
The ALJ determined that Plaintiff became disabled on August 1, 2013 – between
Dr. Percy’s May 2013 opinion and his June 2014 opinion. But, significantly, Dr. Percy
opined in June 2014 that Plaintiff’s “physical status” at that time was “fully consistent”
with the opinions in his May 2013 RFC form. AR at 567. His May 20, 2013 opinion, in
turn, indicated that the limitations found therein applied as early as 2010. AR at 422.

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Thus, if the ALJ had given controlling weight to these opinions by Dr. Percy, accepting
that Plaintiff’s condition in 2014 was consistent with his condition in May 2013 and that
his May 2013 condition was consistent with his 2010 condition, he would have settled
on an earlier onset date.
Ultimately, the Court finds that the ALJ failed to properly evaluate Dr. Percy’s
May 20, 2013 and June 15, 2014 opinions and that this failure adversely affected the
determination of Plaintiff’s disability onset date.
IV.

Conclusion
Plaintiff has demonstrated that the ALJ committed harmful, reversible error in this

case by failing to properly weigh or consider the opinions of his treating physician, Chris
Percy, M.D. On remand, the ALJ should re-contact Dr. Percy to clarify any portions of
this May 2013 opinion that the ALJ finds illegible or inadequate to support the opinions
therein.
Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand (Doc. 16) is granted.
IT IS FURTHER ORDERED that a Final Order pursuant to Rule 58 of the Federal
Rules of Civil Procedure be entered remanding this matter back to the Acting
Commissioner for further proceedings consistent with this opinion.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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