King v. Social Security Administration
MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 17 Plaintiff's Motion to Remand to Agency (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 16-cv-0519 SMV
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum [Doc. 17] (“Motion”), filed on December 23, 2016.
The Commissioner responded on March 20, 2017. [Doc. 21]. Plaintiff replied on April 10,
2017. [Doc. 24]. The parties have consented to the undersigned’s entering final judgment in
this case. [Doc. 8]. Having meticulously reviewed the entire record and being fully advised in
the premises, the Court finds that the ALJ failed to adequately explain why he rejected portions
of Dr. Blacharsh’s and Dr. Cox’s opinions. Accordingly, the Motion will be granted, and the
case will be remanded for further proceedings. See 42 U.S.C. § 405(g) (sentence four).
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards were
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).
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec’y of
Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)). If substantial evidence
supports the Commissioner’s findings and the correct legal standards were applied, the
Commissioner’s decision to deny benefits stands and the plaintiff is not entitled to relief.
Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208,
1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should
meticulously review the entire record but may neither re-weigh the evidence nor substitute its
judgment for that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214;
Doyal, 331 F.3d at 760. 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.”
Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. 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.
“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).
A court’s review is limited to the Commissioner’s final decision. 42 U.S.C. § 405(g).
Generally, the Commissioner’s final decision is that of the administrative law judge (“ALJ”),
but in some cases, it is that of the Appeals Council. Williams v. Bowen, 844 F.2d 748, 749
(10th Cir. 1988). Where the Appeals Council has modified the ALJ’s decision, the Appeals
Council’s decision is the final decision of the Commissioner, White v. Schweiker, 725 F.2d 91,
94 (10th Cir. 1984), regardless of whether the Appeals Council officially granted or denied
review, McDaniel v. Sullivan, No. 91-5188, 1992 U.S. App. LEXIS 18471, at *4 (10th Cir.
July 31, 1992) (unpublished) (citing Williams v. Bowen, 844 F.2d 748, 749 (10th Cir. 1988)).
However, if the Appeals Council denies review and does not modify the ALJ’s decision, the
ALJ’s decision becomes the Commissioner’s final decision, and the district court reviews the
O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994) (citing 20 C.F.R.
Additionally, the Tenth Circuit Court of Appeals has held that in some situations, a
district court must review the ALJ’s decision but also consider evidence beyond that which was
considered by the ALJ. Martinez v. Barnhart, 444 F.3d 1201, 1207–08 (10th Cir. 2006);
O’Dell, 44 F.3d at 859. Pursuant to 20 C.F.R. § 416.1470(b), any new and material evidence
that relates to the period on or before the date of the ALJ’s decision must be considered by the
Appeals Council in determining whether to review the ALJ’s decision. Because a court reviews
the final decision based on “the record as a whole,” a court considers the evidence that was
before the ALJ as well as the new and material evidence that was before the Appeals Council.
O’Dell, 44 F.3d at 858 (citing Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994)). Considering all of the evidence in the administrative record, a court
decides whether the ALJ’s findings were supported by substantial evidence and whether the
correct legal standards were applied. Martinez, 444 F.3d at 1204; Vallejo v. Berryhill, 849 F.3d
951, 956 (10th Cir. 2017). Accordingly, here, the Court reviews the ALJ’s decision (not the
Appeals Council’s denial of review) considering the entire record, including the opinions of
counselor Hallford, which were added to the record by the Appeals Council after the ALJ issued
his decision. See Tr. 2, 5, 374–78.
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.”
§ 1382c(a)(3)(A); 20 C.F.R. § 416.905(a).
In light of this definition for disability, a five-step sequential evaluation process has been
established for evaluating a disability claim. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation process, the claimant has the burden to
show that: (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 either (3) his impairment(s) either meet or equal one
of the “Listings”2 of presumptively disabling impairments; or (4) he is unable to perform his
“past relevant work.” 20 C.F.R. § 416.920(a)(4)(i–iv); Grogan, 399 F.3d at 1261. At the fifth
step of the evaluation process, the burden of proof shifts to the Commissioner to show that the
claimant is able to perform other work in the national economy, considering his residual
functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.
Plaintiff applied for supplemental security income on February 27, 2013. Tr. 26. He
alleged a disability-onset date of May 1, 2011. Id. His claim was denied initially and on
reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ Thomas Cheffins
held a hearing on September 12, 2014, in Phoenix, Arizona. Id. Plaintiff appeared pro se and
by telephone from Albuquerque, New Mexico. Tr. 26, 41. Among other things, Plaintiff
testified that he had recently started treatment with a new counselor named Gary Hallford,3
whom he was seeing once per week. Tr. 45. The ALJ asked Plaintiff to sign a release for
counselor Hallford’s records, and Plaintiff agreed. Tr. 45–46, 58–59.
The ALJ issued his unfavorable decision on December 19, 2014. Tr. 34. At step one of
the sequential evaluation process, he found that Plaintiff had engaged in some substantial
gainful activity, for the fourth quarter of 2013 (prior to the application date) and for “only a
short period subsequent to the application date.” Tr. 28. Nevertheless, the ALJ gave Plaintiff
20 C.F.R. pt. 404, subpt. P, app. 1.
The transcript identifies the counselor as “Gary Hofberg [phonetic].” Tr. 45 (bracketed language in original). It
appears that the counselor’s surname is actually Hallford. See Tr. 374, 376, 377.
“the benefit of the doubt,” and proceeded with the five-step sequential evaluation process for the
entire period since the application date. Id. At step two the ALJ found that Plaintiff suffered
from the following severe impairments: post-traumatic stress disorder (“PTSD”), anxiety
disorder, and substance use disorder. Tr. 28–29. At step three the ALJ found that none of
Plaintiff’s impairments, alone or in combination, met or medically equaled a Listing.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC. Tr. 31–33. The ALJ found that
[Plaintiff] has the [RFC] to perform a full range of work at all
exertional levels but with the following non-exertional
limitations: [Plaintiff] can understand, remember, and carry out
detailed work instructions and make decisions. He can respond
appropriately to basic work setting changes. He can also respond
appropriately to supervision, co-workers, and work situations.
Tr. 31. At step four, the ALJ found that Plaintiff could return to his past relevant work as a
laborer. Tr. 33. Because he found that Plaintiff could return to his past work, the ALJ did not
proceed to step five. Ultimately, the ALJ found that Plaintiff had not been under a disability, as
defined by the Act, during the relevant time period, and he denied the claim. Tr. 34.
After the ALJ denied the claim, Plaintiff hired an attorney, who submitted opinions as to
Plaintiff’s functional limitations from counselor Hallford to the Appeals Council.4 Tr. 20–22.
The Appeals Council accepted the evidence and made it part of the record. Tr. 2, 5. However,
the Appeals Council found that counselor Hallford’s reports “[did] not provide a basis for
Plaintiff also submitted evidence from Certified Nurse Practitioner, Keri Black. Tr. 2. The Appeals Council
determined that Ms. Black’s reports were “about a later time” and were not added to the record. See Tr. 1–5. Here,
Plaintiff raises no argument regarding Ms. Black’s reports, and the Court has not considered them.
changing the [ALJ]’s decision.” Tr. 2. No further reasoning or analysis was provided. See
Tr. 1–5. Remaining unpersuaded, the Appeals Council denied Plaintiff’s request for review on
April 5, 2016. Tr. 1. Plaintiff timely filed the instant action on June 2, 2016. [Doc. 1].
Considering all of the evidence in the administrative record—including the opinions of
counselor Hallford—the Court finds that the ALJ’s reasons for rejecting portions of
Dr. Blacharsh’s and Dr. Cox’s opinions are inadequate. The evidence cited by the ALJ for
rejecting these opinions amounts to a mere scintilla. Remand is warranted to revisit the RFC in
light of the source opinions on Plaintiff’s mental functional limitations.
Although ALJs need not discuss every piece of evidence, they are 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 she assigns to each opinion and
why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996). “[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 Wells v. Colvin, 727
F.3d 1061, 1071 (10th Cir. 2013) (same). 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 (internal brackets omitted) (quoting Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). ALJs are 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 (emphasis added); see Keyes-Zachary, 695 F.3d at 1161
(same) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). “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 SSR LEXIS 5, at *20, 1996 WL 374184, at *7. The ALJ’s
reasons must be specific and legitimate. Chapo, 682 F.3d at 1291.
Dr. Blacharsh and Dr. Cox both agreed that, as a result of Plaintiff’s mental
impairments, he had moderate limitations in the following areas:
• Performing activities within a schedule, maintaining regular
attendance, and being punctual within customary tolerances;
• Working in coordination with or in proximity to others without
being distracted by them;
• Completing a normal workday and workweek without
interruptions from psychologically based symptoms and
performing at a consistent pace without an unreasonable number
and length of rest periods;
• Interacting appropriately with the general public;
• Accepting instructions and responding appropriately to criticism
• Getting along with coworkers or peers without distracting them
or exhibiting behavioral extremes;
• Responding appropriately to changes in the work setting; and
• Traveling in unfamiliar places or using public transportation
Tr. 69–70, 81–82. Counselor Hallford agreed that Plaintiff was at least moderately, if not
markedly, impaired in most of these areas.5 See Tr. 374–75.
There is no dispute that the ALJ’s RFC assessment fails to incorporate these restrictions.
See Defendant’s Response [Doc. 21] at 8 (“The ALJ disagreed with the multiple ratings of
moderate mental limitations[.]”). The ALJ gave the following reasons to explain why he had
rejected these limitations.
I find that multiple “moderate” mental limitations do not
accurately describe the claimant’s level of function. The claimant
has no history of inpatient psychiatric hospitalization. He
received conservative mental health treatment prior and
Specifically, counselor Hallford found that Plaintiff had marked limitations in his ability to:
• Carry out detailed instructions;
• Maintain attention and concentration for extended periods of time (i.e., 2-hour segments);
• Work in coordination with/or proximity to others without being distracted by them;
• Complete a normal workday and workweek without interruptions from psychological based
symptoms and to perform at a consistent pace without unreasonable number and length of rest
• Interact appropriately with the general public;
• Get along with coworkers or peers without distracting them or exhibiting behavioral extremes;
• Respond appropriately to changes in the work place
Tr. 374–75. He further found that Plaintiff had moderate limitations in his ability to:
• Remember locations and work-like procedures;
• Understand and remember very short and simple instructions;
• Understand and remember detailed instructions;
• Carry out very short and simple instructions; and
• Accept instructions and respond appropriately to criticism from supervisors
Id. Counselor Hallford’s report defined a “marked” limitation as: A limitation that precludes the individual’s
ability usefully to perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a
week, or an equivalent schedule. The individual cannot be expected to function independently, appropriately, and
effectively on a regular and sustained basis. Tr. 374. The report defined a “moderate” limitation as: A limitation
that seriously interferes with the individual’s ability to perform the designated activity on a regular and sustained
basis, i.e., 8 hours a day, 5 days a week, or an equivalent schedule. The individual may be able to perform this
work-related mental function on a limited basis. However, the individual should not be placed in a job setting
where this mental function is critical to job performance or to job purpose. Id.
subsequent to the SSI application date. The majority of this
treatment has been counseling with Ms. Hammond. Those
counseling records reveal that the claimant is coping with his
depression and seeking to be a good father for his young son.
Tr. 33 (internal citations omitted).
To the extent that these reasons might support the rejection of the “multiple moderate
mental limitations” assessed by Dr. Blacharsh and Dr. Cox, they amount to a mere scintilla of
The ALJ found that Plaintiff’s mental health treatment had been conservative
(including counseling and no inpatient hospitalizations), he had been “coping with his
depression[,] and [was] seeking to be a good father.” Id. These reasons have little, if any,
bearing on whether Plaintiff has moderate limitations in being punctual, working in
coordination with others, completing a normal workday without unreasonable rest periods,
interacting with the general public, accepting instructions from supervisors, getting along with
co-workers or peers, or responding appropriately to changes in the workplace. Simply put, the
Court cannot follow the ALJ’s reasoning.
Additionally, all the source opinions in the record to assess functional limitations
resulting from Plaintiff’s mental impairments are more restrictive than the RFC. The sources
(Dr. Blacharsh, Dr. Cox, and counselor Hallford) all agree that Plaintiff has at least moderate
limitations in working in coordination with others, completing a normal workday without
unreasonable rest periods, accepting instructions from supervisors, and getting along with
co-workers or peers. These source opinions overwhelm the scant and attenuated evidence cited
by the ALJ as reasons to reject them. Remand is warranted to revisit the RFC.
Defendant presents two other arguments, but neither changes the result.
Defendant implies that the ALJ was not required to account for the disputed limitations as long
as the RFC assessment was consistent with the doctors’ “ultimate opinions that Plaintiff could
do detailed but not complex work.” [Doc. 21] at 8 (citing Tr. 33–34); see id. at 10–11. The
Court disagrees. The ALJ was required to consider Dr. Blacharsh’s and Dr. Cox’s opinions in
their entirety. There is no authority permitting an ALJ to ignore certain findings as long as he
addresses an “ultimate opinion.”
Silva v. Colvin, 203 F. Supp. 3d 1153 (D.N.M. 2016)
(thoroughly explaining the multiple sources of authority requiring ALJs to evaluate source
opinions in their entirety and rejecting the argument that an ALJ may ignore any portion of an
opinion). The ALJ in this case was required to address the source opinions in their entirety.
Defendant offers another argument that is similarly unpersuasive.
She argues that
Dr. Blacharsh and Dr. Cox “ultimately opined” that Plaintiff could perform “at least unskilled
work.” [Doc. 21] at 10–11. Plaintiff’s past work as a laborer (to which the ALJ found he could
return) was unskilled. See Tr. 33. Thus, Defendant’s position is that any inconsistency between
the doctors’ opinions and the RFC does not actually prejudice Plaintiff. [Doc. 21] at 10–11.
This argument might be persuasive if there actually were no conflict between the assessed
limitations and the demands of unskilled work.
The ALJ was required to consider all of the limitations assessed by the doctors. Only if
the “ultimate opinions” adequately accounted for all of the limitations assessed throughout the
opinion might the ALJ rely exclusively on the source’s “ultimate opinion.” Silva, 203 F. Supp.
3d at 1163–64 (collecting cases). Such is not the case here. In this case, Dr. Blacharsh and
Dr. Cox (as well as counselor Hallford) assessed limitations in areas required for unskilled
work. Compare POMS § DI 25020.010(A)(3) (unskilled work requires, on a sustained basis,
the ability to respond appropriately to supervision, coworkers, and work situations, as well as
deal with changes in a routine work setting), with Tr. 69–70 (Dr. Blacharsh’s assessment of
moderate limitations in the ability to, inter alia, accept instructions and respond appropriately to
criticism from supervisors, get along with coworkers or peers without distracting them or
exhibiting behavioral extremes, and deal with changes in the work setting), 81–82 (Dr. Cox’s
assessment of moderate limitations in the ability to, inter alia, accept instructions and respond
appropriately to criticism from supervisors, get along with coworkers or peers without
distracting them or exhibiting behavioral extremes, and deal with changes in the work setting),
Tr. 374–75 (counselor Hallford’s assessment of moderate or marked limitations in the ability to,
inter alia, accept instructions and respond appropriately to criticism from supervisors, get along
with coworkers or peers without distracting them or exhibiting behavioral extremes, and deal
with changes in the work setting). Accordingly, the Court is not persuaded by Defendant’s
argument that there the ALJ’s error did not prejudice Plaintiff.
Considering the entire administrative record, the ALJ’s reasons for rejecting
Dr. Blacharsh’s and Dr. Cox’s assessed limitations are overwhelmed by other evidence.
Remand is warranted.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 17] 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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