Eckert v. Social Security Administration

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 16 Plaintiff's Motion to Reverse and Remand (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARTIN JOSEPH ECKERT,
Plaintiff,
v.

No. 16-cv-0390 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for
Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum
[Doc. 16] (“Motion”), filed on September 6, 2016.

The Commissioner responded on

December 1, 2016. [Doc. 20]. Plaintiff replied on December 12, 2016. [Doc. 21]. The parties
have consented to the undersigned’s entering final judgment in this case. [Doc. 6]. Having
meticulously reviewed the entire record and being fully advised in the premises, the Court finds
that the Administrative Law Judge’s (“ALJ”) findings regarding the Listings and the residual
functional capacity (“RFC”) assessment are not susceptible to meaningful review. The Court
cannot say that the ALJ applied the correct legal standards at step three or in formulating the
RFC assessment. Accordingly, the Motion will be granted, and the case will be remanded for
further proceedings. See 42 U.S.C. § 405(g) (sentence four).

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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). Courts must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their 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. The 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 a court may not re-weigh 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 [Commissioner]’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)
(citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

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A 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. This case fits the general framework, and therefore, the Court reviews the ALJ’s
decision as the Commissioner’s final decision.

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“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 omitted).
Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant 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. § 423(d)(1)(A);
20 C.F.R. § 404.1505(a).
When considering a disability application, the Commissioner is required to use a
five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,
140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) he is
not engaged in “substantial gainful activity”; and (2) he 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) his impairment(s) either meet or equal one of the “Listings”3 of presumptively
disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R.
§ 404.1520(a)(4)(i–iv); Grogan, 399 F.3d at 1261. If he cannot show that his impairment meets
or equals a Listing, but he proves that he is unable to perform his “past relevant work,” the
burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to

3

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

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perform other work in the national economy, considering his RFC, age, education, and work
experience. Grogan, 399 F.3d at 1261.
Procedural Background
Plaintiff applied for a period of disability and disability insurance benefits on May 12,
2012. Tr. 75. He alleged a disability-onset date of March 24, 2012. Id. His claims were denied
initially and on reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ
Ann Farris held a hearing on September 2, 2014, in Albuquerque, New Mexico. Id., Tr. 8–46.
Plaintiff appeared with his then-attorney. Tr. 8, 75. The ALJ heard testimony from Plaintiff and
an impartial vocational expert, Nicole B. King. Tr. 75, 41–45.
The ALJ issued her unfavorable decision on January 20, 2015. Tr. 82. She found that
Plaintiff met the insured status requirements through December 31, 2017. Tr. 77. At step one,
she found that Plaintiff had not engaged in substantial gainful activity since the onset date of his
alleged disability. Id. Because Plaintiff had not engaged in substantial gainful activity for at
least 12 months, the ALJ proceeded to step two. Id. There, she found that Plaintiff suffered
from severe degenerative disc disease of the cervical spine with cervicalgia, plantar fasciitis,
post-traumatic arthritis of the right knee, and mild osteoarthritis of the thumbs and the left fourth
finger. Tr. 77–78.
At step three, the ALJ determined that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled a Listing.

Tr. 78.

Because none of Plaintiff’s

impairments met or medically equaled a Listing, the ALJ went on to assess Plaintiff’s RFC.
Tr. 78–81. The ALJ found that:
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[Plaintiff] has the [RFC] to perform sedentary work as defined in
20 [C.F.R. §] 404.1567(a) with the following additional
limitations: [Plaintiff] must alternate between sitting and standing
approximately hourly. He can only occasionally kneel, crouch,
crawl, or reach overhead. Additionally, [he] can frequently but not
constantly finger. Sedentary work involves lifting up to 10 pounds
occasionally; sitting for up to 2 hours at a time and 6 hours per
day; and standing or walking intermittently, up to 2 hours per day.
Tr. 78. In explaining her RFC assessment, the ALJ recounted the symptoms Plaintiff reported
and some of the medical evidence contained in the record. Tr. 78–81. After describing this
evidence, she made the following findings:
Whereas Dr. Adamson provided [certain] results, he failed to detail
any functional limitations.
In sum, the claimant has acknowledged performing a wide
variety of activities of daily living. It appears that he is not limited
to the extent one would expect given the complaints of disabling
symptoms and limitations. At times, the claimant has not taken
any medications for his symptoms. He has alleged that he is able
to walk up to two miles and lift 50 pounds. Moreover, in
December 2013, the claimant stated that he was doing well with no
problems.
In reaching this determination, the undersigned has
assigned equally significant weight to records (including clinical
findings, observations, opinions, and results from objective testing)
from the above referenced sources (treating and consultative). The
record does not contain any opinions from treating or examining
physicians indicating that the claimant is disabled or has
limitations greater than those determined in this decision. Further,
the residual functional capacity conclusions reached by the State
Agency consultants[, Dr. Green and Dr. Lancanster,] also support a
finding of “not disabled”. [sic] Although these physicians are
non-examining, and therefore their opinions do not merit as much
weight as those of examining or treating physicians, their opinions
do deserve some weight, particularly in a case like this in which
there are other reasons to reach similar conclusions (as explained
throughout the decision). SSR 96-6p.
Tr. 81.
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Next, at step four, the ALJ found that Plaintiff was able to perform his past relevant work
as a public information officer. Id. Ultimately, the ALJ found that Plaintiff had not been under a
disability, as defined by the Act, during the relevant time period, and she denied the claim.
Tr. 81–82. The Appeals Council denied review on April 20, 2016. Tr. 762–64. Plaintiff timely
filed the instant action on May 6, 2016. [Doc. 1].
Analysis
The Court finds that reversal and remand is warranted because the ALJ’s findings
regarding the Listings and the RFC are not susceptible to meaningful review. The Court cannot
say that the correct legal standards were applied at step three or in assessing the RFC. Because
remediation of these errors may make Plaintiff’s other challenges moot, the Court declines to
address those other challenges at this time.
Listing 1.04(A)
The parties dispute whether the evidence of record would be sufficient to support a
finding that Plaintiff meets Listing 1.04(A) for spine disorders. Plaintiff argues that a report
from Dr. Adamson and other evidence establish that he meets the Listing. [Doc. 16] at 13 (citing
Tr. 44–45 (VE’s testimony), 239–42 (argument and citations to evidence from Plaintiff’s former
attorney); 594–95 (MRI dated September 13, 2013); 596 (Dr. Adamson’s report)); [Doc. 21] at 2.
Defendant argues that Dr. Adamson’s report and the other evidence fail to establish all the
criteria of the Listing (e.g., muscular weakness, sensory or reflex loss). [Doc. 20] at 8.

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The ALJ expressly indicated that she had considered Listings 1.02 and 1.04. Tr. 78.
These are her step-three findings, in their entirety:
Listing 1.02 (Dysfunction of a major joint) and Listing 1.04
(Disorders of the spine) were considered. Despite [Plaintiff’s]
symptoms from his impairments, the medical evidence does not
establish the specific criteria of these listings, and no acceptable
medical source has mentioned findings equivalent in severity to the
criteria of any listed impairment, individually or in combination.
Tr. 78. Plaintiff complains that these findings are inadequate considering that there is evidence
to support the opposite finding. [Doc. 16] at 12–13; [Doc. 20] at 1–2. He argues that the ALJ
was required to discuss the evidence and to provide reasons for her conclusion. [Doc. 16] at 13
(citing Peck v. Barnhart, 214 F. App’x 730, 734–35 (10th Cir. 2006)); [Doc. 20] at 1.
Certainly, ALJs are not required to discuss every piece of evidence. Clifton v. Chater, 79
F.3d 1007, 1009–10 (10th Cir. 1996). But they must give good reasons for their findings,
reasons that are sufficiently specific to allow for meaningful review. Fischer-Ross, 431 F.3d
at 734. At step three, it is preferable for ALJs to discuss the relevant evidence and make specific
findings, but failure to do so does not always warrant remand. See id. For example, no “remand
for a more thorough discussion of the listings” is required “when confirmed or unchallenged
findings made elsewhere in the ALJ’s decision confirm the step-three determination under
review.” Id.; see Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008).
The step-three findings in this case give no indication as to why the medical evidence did
not establish the specific criteria of the Listing. The Court cannot tell what evidence the ALJ
was considering or what legal standards she applied to weigh the evidence. The step-three

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findings in this case do not allow for meaningful review.

Remand is warranted.

See

Fischer-Ross, 431 F.3d at 734.
Residual Functional Capacity Assessment
Plaintiff challenges the RFC assessment because he argues that the ALJ omitted certain
functional limitations without explaining the reasons for doing so. [Doc. 16] at 14–16, 18–19,
20. Physical therapist Plummer, Dr. Taylor, and Dr. Lawson all assessed limitations that were
more restrictive than those assessed by the ALJ. Compare Tr. 577–93 (Ms. Plummer’s opinion),
and Tr. 507 (Dr. Taylor’s opinion), and Tr. 613 (Dr. Lawson’s opinion), with Tr. 78 (ALJ’s RFC
assessment). In fact, Ms. Plummer opined that Plaintiff could not perform full time work at all.
Tr. 577, 590 (limiting Plaintiff to a four- to six-hour workday). Plaintiff complains that it was
error for the ALJ to fail to explain why she omitted many of the limitations assessed by these
providers. [Doc. 16] at 14–16, 18–19, 20.
Defendant argues that Ms. Plummer’s assessed limitations are extreme and unsupported
by the record and/or contradicted by the non-examining physicians’ opinions. [Doc. 20] at 13
(citing Tr. 52–53 (Dr. Green’s opinion), 65–66 (Dr. Lancaster’s opinion)). Defendant argues that
the ALJ was not required to credit Dr. Taylor’s opinion because it was rendered seven months
prior to the alleged onset date, and because other providers’ opinions differed. [Doc. 20] at 14.
She further cites to evidence that could support the ALJ’s RFC assessment. Id. at 15–16.
Defendant’s arguments, as Plaintiff correctly points out, amount to post hoc
rationalizations for the ALJ’s conclusions. The ALJ herself did not provide these explanations
for rejecting these opinions. Thus, the Court may not rely on them. See Robinson v. Barnhart,
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366 F.3d 1078, 1084–85 (10th Cir. 2004) (rejecting “post hoc effort to salvage the ALJ’s
decision”).
Defendant also seems to argue that the ALJ did, in fact, sufficiently explain her
reasoning. Defendant argues that the ALJ “detailed Ms. Plummer’s findings and discussed
contradictory evidence.” [Doc. 20] at 13–14 (citing Tr. 78–81). The ALJ expressly stated that
she accorded “equally significant weight” to all the opinion evidence. Id. at 14 (quoting Tr. 81).
Therefore, Defendant’s position is that the ALJ’s reasoning is evident in her decision, which is
what matters. Id. at 13–14 (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir.
2012) (“In the case of a non-acceptable medical source . . . the ALJ’s decision is sufficient if it
permits us to ‘follow the adjudicator’s reasoning.’”)). The Court disagrees.
The ALJ described much of the medical evidence, including Ms. Plummer’s report. (She
did not mention Dr. Taylor’s or Dr. Lawson’s opinions.) These descriptions, however, merely
recounted evidence. See Tr. 78–80. Contrary to Defendant’s suggestion, beyond the RFC
assessment itself, the decision includes very few findings on the medical evidence.4 Tr. 77–81.
The ALJ stated that she had “assigned equally significant weight to the records (including
clinical findings, observations, opinions, and results from objective testing)[.]” Tr. 81. She
further found that no provider had assessed “limitations greater than those determined in this
decision.” Id. If the limitations assessed in the record could be read as the ALJ’s decision
suggests (i.e., consistent with the RFC assessment), then Defendant’s argument might be more
persuasive. But many of the limitations assessed by Ms. Plummer, Dr. Taylor, and Dr. Lawson
4

For example, the ALJ found that Plaintiff’s activities of daily did not seem consistent with his reported symptoms,
which appears to be a credibility finding. Tr. 81.

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are not consistent with the RFC. The Court cannot track the ALJ’s reasons for rejecting those
limitations, nor discern the legal standards applied to weigh the medical evidence. The Court
cannot meaningfully review how the ALJ arrived at the RFC assessment. Remand is warranted.
Conclusion
Remand is warranted to clarify the legal standards applied at step three and in assessing
the RFC. Good reasons for the step-three determination and RFC assessment must be evident.
Once these errors are addressed on remand, Plaintiff’s other challenges may be rendered moot.
Therefore, the Court declines to address Plaintiff’s other challenges at this time.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing,
with Supporting Memorandum [Doc. 16] is GRANTED. The Commissioner’s final decision is
reversed, and this case is remanded for further proceedings in accordance with this opinion.
IT IS SO ORDERED.

____________________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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