Sanchez v. Social Security Administration

Filing 24

ORDER by Magistrate Judge Steven C. Yarbrough granting 19 Motion to Remand to Agency (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PHILIP SANCHEZ,
Plaintiff,
v.

Civ. No. 16-923 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER is before the Court on Plaintiff Philip Sanchez’s Motion to Reverse and
Remand the Social Security Commissioner’s final decision denying Plaintiff period of disability
and disability insurance benefits. Doc. 19. For the reasons discussed below, the Court will
GRANT Plaintiff’s motion and remand this action to the Commissioner for further proceedings
consistent with this opinion.
I.

Background

Plaintiff filed his claim on January 29, 2015 alleging disability due to diabetes, back
problems, bad knees, hypertension, depression, neck problems, bone spurs, rotator cuff
problems, muscle weakness, and memory problems. AR 59. Plaintiff alleged his disability onset
date was August 17, 2014. AR 59. Plaintiff’s claim was initially denied on May 21, 2015 and
upon reconsideration on August 15, 2015. AR 13. Plaintiff thereafter requested a hearing which
the ALJ held on February 3, 2016. AR 13. On March 23, 2016, the ALJ issued his decision
denying Plaintiff’s claim. AR 25. Because the parties are familiar with record in this case, the
Court will only discuss Plaintiff’s medical history to the extent that it is relevant to the issues
before the Court.

Plaintiff’s medical records show Plaintiff presenting to Dr. Aedra Andrade on numerous
occasions throughout 2013-2015. AR 267-320. Although the main subjects of Plaintiff’s visit
were his diabetes and musculoskeletal pain, Dr. Andrade noted on numerous occasions
Plaintiff’s depressive disorder and “unspecified mental disorders.” See e.g., AR 267. On
September 10, 2013, Dr. Andrade noted that Plaintiff was “still really battling depression, gets
mad about everything, very irritable, getting hopeless and frustrated. Hasn’t gone to [behavioral
health services] due to lack of money for copay.” AR 308. In January 2014 and December 2014,
Dr. Andrade noted that Plaintiff was taking medication for his depression and that his depression
had stabilized. AR 269, 303. However, in February and April of 2015, Dr. Andrade noted that
Plaintiff had run out of depression medication and that his symptoms had returned. AR 313, 317.
On April 30, 2015, Plaintiff presented to Michael Emery, Ph.D. for a consultative
psychology examination. Dr. Emery’s report includes significant discussion of Plaintiff’s history,
specifically in regard to his depressive symptoms. Dr. Emery stated that he “suspect[ed] issues
with both depression and anxiety pre-date[d] the health issues, most likely originating in
childhood trauma.” AR 339. Importantly, Dr. Emery opined that Plaintiff’s “[s]ocial functioning
is markedly impaired by interpersonal anxiety, panic episodes, and self-imposed isolation.
General adaptation is markedly impaired.” AR 339.
On May 21, 2015, non-examining, consultative physicians Dr. Lammer and Dr. Wewerka
completed a medical assessment of claimant’s impairments. AR 59-72. They indicated that
Plaintiff had the following moderate limitations: (a) ability to maintain attention and
concentration for extended periods of time, (b) ability to interact appropriately with the general
public, and (c) ability to accept instructions and respond appropriately to criticism from
supervisors. AR 68. Further, on August 15, 2015, non-examining, consultative physicians Dr.

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Suansilppongse and Dr. Medina completed a medical assessment of Plaintiff. They found that he
had the following moderate limitations: (a) ability to understand and remember detailed
instructions, (b) ability to carry out detailed instructions, (c) ability to maintain attention and
concentration for extended periods of time, (d) ability to 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, (e) ability to interact
appropriately with the general public, (f) ability to accept instruction and respond appropriately
to criticism from supervisors, (g) ability to respond appropriately to changes in the workplace;
and (h) ability to set realistic goals or make plans independently of others. AR 82-84.
In his decision, the ALJ gave Dr. Emery’s opinions “limited weight.” AR 23. The ALJ
stated that although “his opinions on the claimant’s abilities for cognition and concentration,
persistence and pace are consistent with the evidence of record, his opinions that the claimant
had marked limitations in social functioning and with general adaptation are based entirely on
the claimant’s self-report and are not supported by the overall record.” AR 23.
II.

Applicable Law

A. Disability Determination Process
A claimant is considered disabled for purposes of Social Security disability insurance
benefits if that individual 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). The Social Security Commissioner has adopted a five-step
sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R.
§ 404.1520. The steps of the analysis are as follows:

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(1) Claimant must establish that she is not currently engaged in “substantial gainful
activity.” If claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or
mental impairment . . . or combination of impairments” that has lasted for at least one
year. If claimant is not so impaired, she is not disabled and the analysis stops.
(3) If claimant can establish that her impairment(s) are equivalent to a listed impairment that
has already been determined to preclude substantial gainful activity, claimant is
presumed disabled and the analysis stops.
(4) If, however, claimant’s impairment(s) are not equivalent to a listed impairment, claimant
must establish that the impairment(s) prevent her from doing her “past relevant work.”
Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence
and determines what is “the most [claimant] can still do despite [her physical and
mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant’s residual
functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the
physical and mental demands of claimant’s past work. Third, the ALJ determines
whether, given claimant’s RFC, claimant is capable of meeting those demands. A
claimant who is capable of returning to past relevant work is not disabled and the
analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that claimant is able to
“make an adjustment to other work.” If the Commissioner is unable to make that
showing, claimant is deemed disabled. If, however, the Commissioner is able to make
the required showing, the claimant is deemed not disabled.
See 20 C.F.R. § 1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
B. Standard of Review
A court must affirm the denial of social security benefits unless (1) the decision is not
supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in
reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec’y of Health & Human Serv., 933 F.2d
799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither
reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court’s disagreement with a
decision is immaterial to the substantial evidence analysis. A decision is supported by substantial

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evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as
adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a
mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he 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)).
Similarly, even if a court agrees with a decision to deny benefits, if the ALJ’s reasons for
the decision are improper or are not articulated with sufficient particularity to allow for judicial
review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific
weighing of the evidence and “the record must demonstrate that the ALJ considered all of the
evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence
in the record. But, it does require that the ALJ identify the evidence supporting the decision and
discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.
III.

Analysis

Plaintiff contends that the ALJ failed to appropriately account for Dr. Emery’s opinion
that Plaintiff has marked limitations in social functioning and general adaptation. Plaintiff
contends that the ALJ’s finding that Dr. Emery’s opinions are “not supported by the overall
record” is vague because he does not explain which portions of the record fail to support them.
Plaintiff further contends that Dr. Emery’s opinions were necessarily based on Plaintiff’s selfreporting because that is the nature of psychological evaluations.
“It is the ALJ’s duty to give consideration to all the medical opinions in the record. He
must also discuss the weight he assigns to such opinions.” Keyes-Zachary v. Astrue, 695 F.3d

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1156, 1161 (10th Cir. 2012). The ALJ ‘s decision should generally ensure that that the
discussion of the weight assigned to a medical opinion allows a subsequent reviewer to follow
the ALJ’s reasoning. Nagelschneider v. Astrue, 617 F.Supp.2d 1115, 1118 (D.Colo. 2009). An
ALJ’s failure to set forth adequate reasons as to why a medical opinion was assigned a particular
weight may constitute reversible error. Nagelschneider v. Astrue, 617 F.Supp.2d 1115, 1118
(D.Colo. 2009).
Under the specific facts of the present case, the Court concludes that ALJ’s reasoning
fails to provide sufficient explanation as to why the he disregarded Dr. Emery’s findings that
Plaintiff is markedly impaired in social functioning and general adaptation. As for the ALJ’s
statement that Dr. Emery’s opinions were based entirely on Plaintiff’s self-report, the Court first
notes that Dr. Emery’s opinions concerned Plaintiff’s mental limitations. As such, it is clear that
such opinions will depend in large part on the Plaintiff’s self-reports. As the Tenth Circuit has
stated, “The practice of psychology is necessarily dependent, at least in part, on a patient’s
subjective statements.” Thomas v. Barnhart, 147 Fed.App’x 755, 759 (10th Cir. 2005).
Accordingly, a psychological opinion may rest on “observed signs and symptoms,” which will
generally include subjective reports by the claimant, in addition to objective psychological tests.
Id. To discount a medical opinion because solely because it relies on a claimant’s subjective
reporting therefore risks substituting the ALJ’s judgment for that of the psychologist.
Further, while Dr. Emery’s report indicated extensive background information reported to
him by Plaintiff, the Court’s review of the report indicates that Dr. Emery’s findings were not
based “entirely” on Plaintiff’s self-reports. Dr. Emery reviewed Plaintiff’s medical records from
Dr. Andrade and performed cognition tests in which Dr. Emery could observe Plaintiff for signs
symptoms consistent with Dr. Andrade’s diagnosis of depressive disorder. Similarly, having met

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with Plaintiff, Dr. Emery had the opportunity to independently observe Plaintiff for indications
of limited social functioning. Although the Court recognizes that opinions based solely on an
individual’s self-reported symptoms may justify according less weight to such opinions, see
Rivera v. Colvin, 629 Fed. App’x 842 (10th Cir. 2015), the ALJ’s finding on this point is
inconsistent with the record.
Second, the ALJ’s reasoning that Dr. Emery’s opinions were inconsistent with the overall
record fails to adequately explain which portions of the record justify such a finding. See
Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (concluding that the ALJ did not
adequately explain his reasoning where the ALJ found a physician’s opinion inconsistent with
the record but did not specifically highlight those portions of the record with which it was
allegedly inconsistent). First, the Court finds no conflict with Dr. Emery’s and Dr. Andrade’s
opinions. In fact, the ALJ gave “great weight” to the opinions of Dr. Andrade and, consistent
with Dr. Andrade’s opinions, Dr. Emery found that Plaintiff suffered from depressive disorder
and that his health issues exacerbated his mental impairments. AR 294, 339. Further, while
there is some inconsistency between the limitations found by Dr. Emery and the non-examining
consultative physicians, this discrepancy underscores the necessity for the ALJ to adequately
explain his reasoning. Dr. Emery was an examining physician which means that, generally, his
opinions should be given more weight than a non-examining physician. See Rivera, 629 Fed.
App’x at 845; Thomas, 147 Fed. App’x at 760 (“[A] consulting, examining physician’s
testimony is normally supposed to be given more weight than a consulting, non-examining
physician’s opinion.”). Thus, to the extent that a conflict existed between those opinions, the
ALJ was required to explain why he disregarded an examining consultant’s opinion in favor of
medical opinions by non-examining consultant’s that are ordinarily due less weight. In such

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circumstances, a general statement that Dr. Emery’s opinions were merely inconsistent with the
record will not do, especially where there is no other conflict in the record regarding Dr. Emery’s
opinions. See Thomas, 147 Fed. App’x at 760 (“[I]f there is a conflict between non-examining
and examining consultant’s opinions, the ALJ must give adequate reasons if she…rejects the
latter in favor of the former.”).
In sum, the ALJ’s conclusory reasoning for according Dr. Emery’s opinions limited
weight do not allow this Court to meaningfully review the bases for his decision.
IV.

Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Reverse and Remand
(Doc. 19) is GRANTED.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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