Guinn v. Social Security Administration

Filing 29

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 20 Plaintiff's Motion to Remand to Agency (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LIZ JENNY GUINN,
Plaintiff,
v.

No. 16-cv-0689 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 a
Rehearing with Supporting Memorandum [Doc. 20] (“Motion”), filed on May 9, 2017. The
Commissioner responded on April 28, 2017. [Doc. 24]. Plaintiff replied on June 5, 2017.
[Doc. 27]. The parties have consented to the undersigned’s entering final judgment in this case.
[Doc. 9].

Having meticulously reviewed the entire record and being fully advised in the

premises, the Court finds that the Administrative Law Judge (“ALJ”) impermissibly failed to
explain why she rejected a portion of Dr. Cherry’s opinion. Accordingly, the Motion will be
granted and the case 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
decision2 is supported by substantial evidence and whether the correct legal standards were

1

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). 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)).
“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).

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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. § 416.1481. 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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Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that 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).
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) she is not
engaged in “substantial gainful activity”; and (2) she 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) her impairment(s) either meet or equal one of the Listings 3 of presumptively
disabling impairments; or (4) she is unable to perform her “past relevant work.” 20 C.F.R.
§ 404.1520(a)(4)(i–iv); Grogan, 399 F.3d at 1261. If she cannot show that her impairment meets
or equals a Listing, but she proves that she is unable to perform her “past relevant work,” the
burden of proof then shifts to the Commissioner, at step five, to show that the claimant is able to
perform other work in the national economy, considering her RFC, age, education, and work
experience. Grogan, 399 F.3d at 1261.

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

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Procedural Background
Plaintiff applied for a period of disability and disability insurance benefits on October 10,
2011. Tr. 21. She alleged a disability-onset date of June 28, 2011. Id. Her claims were denied
initially and on reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ
Donna Montano held a hearing on August 14, 2014, in Albuquerque, New Mexico. Tr. 21,
37−73. Plaintiff appeared in person and was represented by an attorney. Tr. 21, 37. The ALJ
heard testimony from Plaintiff and an impartial vocational expert, Mary Diane Weber. Tr. 21,
69–70.
The ALJ issued her partially favorable decision on January 30, 2015. Tr. 31. Initially,
the ALJ found that Plaintiff met the insured status requirements through December 31, 2017. Tr.
23. At step one she found that Plaintiff had not engaged in substantial gainful activity since the
onset date of her 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 the following severe impairments: “morbid obesity, osteoarthritis of the bilateral
knees, affective disorder, diabetes mellitus, substance abuse disorder in remission, and alcohol
dependence in partial remission.” Tr. 24. At step three the ALJ determined that none of
Plaintiff’s impairments, alone or in combination, met or medically equaled a Listing. Tr. 24–25.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC. Tr. 25–29. The ALJ found that:
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §] 416.967(b) except she can understand, carry out and
remember simple instructions and make commensurate work
related decisions, respond appropriately to supervision, coworkers
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and work situations, deal with routine changes in work setting,
maintain concentration, persistence and pace for up to and
including two hours at a time with normal breaks throughout the
day.
Tr. 25. At step four the ALJ found that Plaintiff could not return to her past relevant work.
Tr. 29. Proceeding to step five, the ALJ considered Plaintiff’s RFC, age, education, and work
experience. She applied the medical vocation guidelines (“grids” or “grid rules”) to find that
Plaintiff was disabled beginning September 14, 2014. Tr. 29–31. The ALJ found that prior to
September 14, 2014, Plaintiff could perform work that exists in significant numbers in the
national economy and, therefore, was not disabled. Tr. 30. Plaintiff requested review from the
Appeals Council as to the unfavorable portion of the ALJ’s decision, but that request was denied
on April 22, 2016. Tr.1. Plaintiff timely filed the instant action on June 24, 2016. [Doc. 1].
Analysis
Remand is warranted because the ALJ erred in failing to explain why she rejected
Dr. Cherry’s assessment of certain moderate limitations.

The Court declines to pass on

Plaintiff’s other alleged errors at this time.
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)). That is, when
assessing a plaintiff’s RFC, an ALJ must explain what weight she assigns to each opinion and
why. Id. “[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.”
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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 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)). “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. Cherry offered a non-examining opinion that Plaintiff had moderate limitations in the
ability to (1) “complete a normal workday and workweek without interruption from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods,” and (2) “interact appropriately with the general public.”
Tr. 373. The ALJ gave “great weight” to Dr. Cherry’s opinion. Tr. 28. Plaintiff argues,
nevertheless, that the ALJ neither incorporated these limitations into the RFC, nor explained
their omission. [Doc. 20] at 13–15. Therefore, as Plaintiff sees it, the ALJ failed to apply the
correct legal standard in weighing Dr. Cherry’s opinion. Id. The Court agrees.
Defendant’s arguments in support of the ALJ’s decision are unpersuasive. [Doc. 24]
at 12–15. Defendant points to the agency’s Program Operations Manual Systems (“POMS”),
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discussing the Mental Residual Functional Capacity Assessment (“MRFCA”) form on which
Dr. Cherry’s opinion is recorded. The POMS explains that Section I of the MRFCA form is
“‘merely a worksheet’ designed to record summary conclusions regarding the general degree of
limitations as well as the adequacy of documentation but it ‘does not constitute the RFC
assessment.’” [Doc. 24] at 13 (quoting POMS DI § 24510.060 (emphasis in POMS, Defenant’s
alteration omitted)). Defendant cites several Tenth Circuit cases for the proposition that an ALJ
need not “mention[] the moderate limitations indicated in Section I of the [MRFCA] form where
the ALJ relie[s] on the state agency’s ultimate opinion in Section III.” Id. (citing Smith v.
Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016), Lee v. Colvin, F. App’x 538 (10th Cir. 2015),
Sullivan v. Colvin, 519 F. App’x 985, 989 (10th Cir. 2013), Carver v. Colvin, 600 F. App’x 616,
619 (10th Cir. 2015)). Defendant misrepresents both the POMS and circuit law on this issue.
The ALJ may not rely on the Section III findings and ignore the Section I findings.
“The POMS’ distinction between Section I and Section III is aimed at the doctor who
completes the MRFCA form; it is not material to how the ALJ weighs the nonexamining
opinion.” Silva v. Colvin, 203 F. Supp. 3d 1153, 1159 (D.N.M. 2016) (emphasis added). To the
contrary, the POMS explicitly and repeatedly requires the ALJ to consider nonexamining
opinions in their entirety. Silva, 203 F. Supp. 3d at 1160–61 (surveying and discussing the
authorities and citing e.g., POMS § DI 24515.007(1)(b) (“All evidence from nonexamining
sources is opinion evidence.”)).

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Like the POMS, the regulations also belie Defendant’s position. Id. at 1161–62 (citing
20 C.F.R. §§ 404.1527(e)(2)(i), 404.1512(b)(1)(viii)).

The regulations require the ALJ to

consider the doctor’s opinion in its entirety. There is no exception for the Section I findings.
In line with the POMS and the regulations, the case law also requires the ALJ to consider
a doctor’s opinion in its entirety. For example, in Haga v. Astrue, 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 1205, 1208 (10th Cir. 2007). “[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,
therefore, remanded “so that the ALJ [could] explain the evidentiary support for his RFC
determination.” Id. Later, the Tenth Circuit expressly applied Haga and its reasoning to the
opinions of nonexamining physicians in Frantz v. Astrue, 509 F.3d 1299, 1302–03 (10th Cir.
2007).
Defendant does not address Haga or Frantz. See [Doc. 24]. Instead, she cites to a few
cases that, if read in a vacuum, could be misinterpreted as licensing an ALJ to ignore findings
that are recorded in Section I. See Smith, 821 F.3d at 1269 n.2 (“Ms. Smith questions how the
[ALJ]’s [RFC] assessment incorporates the moderate limitations indicated by Dr. Frommelt.
This is the wrong question. . . . Dr. Frommelt’s notations of moderate limitations served only as
an aid to her assessment of [RFC]. We compare the [ALJ]’s findings to Dr. Frommelt’s opinion
on [RFC], not her notations of moderate limitations.”); Sullivan, 519 F. App’x at 985
(acknowledging the POMS’ distinction between Section I and Section III, rejecting the plaintiff’s
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argument that the Section I limitations are “in addition to those in Section III,” and finding that
the ALJ had relied on the Section III findings and was not required to discuss the Section I
findings).
Considering the POMS, the regulations, and Haga and Frantz, the Court cannot interpret
the relevant case law as supporting Defendant’s argument that the ALJ in this case was permitted
to give great weight to Dr. Cherry’s opinion, without explaining why she did not account for his
Section I findings in her RFC assessment. If the limitations assessed by Dr. Cherry in Section I
were accounted for in Section III of his report, then Defendant’s argument might hold water. See
Nelson v. Colvin, No. 15-6226, 655 Fed. App’x 626 (referring to the doctor’s Section I findings
versus his Section III findings but ultimately deciding that the ALJ’s RFC accounted for all of
the Section I findings (as opposed to finding that the ALJ was free to disregard the Section I
findings entirely)).4 An ALJ may rely exclusively on the Section III findings only with an
essential caveat: the Section III findings must adequately account for the Section I findings.
Acknowledging as much, Defendant argues that, here, the “ALJ’s limitations adequately account
for the moderate—not marked—limitations set forth in [Section I] of Dr. Cherry’s opinion
4

See also Lee, 631 Fed. App’x at 541 (finding that the POMS’ distinction between the purposes of Section I and
Section III “does not mean, of course, that the ALJ should turn a blind eye to any moderate limitations enumerated
in Section I that are not adequately explained in Section III.”) (emphases omitted); Fulton v. Colvin, 631 F. App’x
498, 502 (10th Cir. 2015) (“Where a psychologist’s Section III narrative does not contradict any Section I
limitations and describes the effect each Section I limitation would have on the claimant’s mental RFC, the ALJ may
properly look to only the Section III narrative as the psychologist’s opinion regarding mental RFC. The ALJ did so
here . . . . And we do not see any contradiction between Sections I and III of Dr. Kendall’s [report] or any failure to
describe in Section III the effects of any Section I limitations on [the plaintiff]’s capacity for work.”) (internal
citations omitted); Carver v. Colvin, 600 F. App’x 616, 618–19 (10th Cir. 2015) (acknowledging the POMS’
distinction between Section I and Section III, but holding that an ALJ may not “turn a blind eye to moderate Section
I limitations,” and ultimately finding that the Section I limitations at issue were accounted for in the Section III
findings); Jaramillo v. Colvin, 576 F. App’x 870, 874 (10th Cir. 2014) (acknowledging the POMS’ distinction
between Section I and Section III, analyzing whether the ALJ’s RFC (presented to the VE in a hypothetical
question) “adequately account[ed]” for the Section I findings, and ultimately finding that the Section I limitations at
issue were accounted for in the ALJ’s RFC).

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[because] simple unskilled work . . . involves working with things rather than data or people and
does not require extensive concentration.” [Doc. 24] at 14 (emphases added).
These aspects of unskilled work do not really address Plaintiffs’ challenge. Plaintiff
argues that her moderate limitations in the ability to (1) “complete a normal workday and
workweek without interruption from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods,” and (2) “interact
appropriately with the general public” are not accounted for in the RFC. The ALJ limited
Plaintiff to light, unskilled work.5 Tr. 25. However, one of the mental abilities “critical” for
performing unskilled work is the ability to “complete a normal workday and workweek without
interruptions from psychologically based symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods. (These requirements are usually strict.)” POMS
DI § 25020.010(B)(3)(i). The RFC does not reflect all of the limitations assessed by Dr. Cherry,
and the ALJ failed to explain why she omitted them. See Tr. 25–29.
Conclusion
The ALJ erred in failing to explain why she rejected Dr. Cherry’s assessment of certain
moderate limitations. Remand is warranted on that ground, and the Court declines to address
Plaintiff’s other alleged errors at this time.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 20] is

5

The ALJ’s RFC in this case tracks, nearly verbatim, the mental demands of unskilled work. Compare Tr. 25 (RFC
assessment), with POMS § DI 25020.010(A)(3) (describing the “mental demands of unskilled work”).

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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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