Lopez-Martinez v. Social Security Administration

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa granting 13 MOTION to Remand to Agency and Memorandum in Support. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LORETTA L. LOPEZ-MARTINEZ,
Plaintiff,
vs.

Civ. No. 16-952 KK

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 10) filed October 24, 2016 in support of Plaintiff Loretta L. Lopez-Martinez’s (“Plaintiff”)
Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying
Plaintiff’s claim for Title II disability insurance benefits. On December 20, 2016, Plaintiff filed
her Motion to Reverse or Remand Administrative Agency Decision and Memorandum in
Support (“Motion”). (Doc. 13.) The Commissioner filed a Response in opposition on March 21,
2017 (Doc. 17), and Plaintiff filed a Reply on April 5, 2017. (Doc. 18.) The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the applicable law and being fully advised in
the premises, the Court finds the Motion is well taken and is GRANTED.

1

Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Carolyn Colvin as the Acting
Commissioner of the Social Security Administration. Fed. R. Civ. P. 25(d).

2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 4, 13, 14.)

I. Background and Procedural Record
Claimant Loretta L. Lopez-Martinez (“Ms. Lopez-Martinez”) alleges that she became
disabled on November 15, 2009, at the age of forty-two because of fibromyalgia, depression,
glaucoma, migraine headaches, post-traumatic stress disorder (PTSD), and kidney problems.
(Tr. 123, 128, 163, 171-172.3) Ms. Lopez-Martinez completed twelfth grade, and worked as a
greenhouse supervisor, retail lead sales person, and public school kitchen manager. (Tr. 130.)
Ms. Lopez-Martinez last met the insured status requirements of the Social Security Act on
December 31, 2013. (Tr. 475.)
On April 8, 2010, Ms. Lopez-Martinez protectively filed an application for Social
Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the
“Act”), 42 U.S.C. § 401 et seq. (Tr. 113-14, 123.) Ms. Lopez-Martinez’s application was
initially denied on June 7, 2010. (Tr. 48, 49, 52-55.) It was denied again at reconsideration on
December 3, 2010. (Tr. 50, 51, 60-72.) On January 24, 2011, Ms. Lopez-Martinez requested a
hearing before an Administrative Law Judge (“ALJ”). (Tr. 63-64.) The ALJ conducted a
hearing on April 4, 2012. (Tr. 28-47.) Ms. Lopez-Martinez appeared in person at the hearing
and waived her right to representation.4

(Tr. 30-31, 96.)

The ALJ took testimony from

Ms. Lopez-Martinez (Tr. 35-42), and an impartial vocational expert (“VE”), Pamela Bowman.
(Tr. 42-46, 89, 91-92.) On June 25, 2012, the ALJ issued an unfavorable decision. (Tr. 8-23.)
On August 14, 2013, the Appeals Council issued its decision denying Ms. Lopez-Martinez’s
request for review and upholding the ALJ’s final decision. (Tr. 1-6.)

3

Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 10) that was lodged with the Court on
October 24, 2016.
4

Ms. Lopez-Garcia is represented in these proceedings by Attorney Michael Liebman.

2

On October 11, 2013, Ms. Lopez-Martinez timely filed a Complaint seeking judicial
review of the Commissioner’s final decision. (USDC Civ. No. 13-989 GBW, Doc. 1.) The
parties fully briefed the issues raised for judicial review. (Id., Docs. 17, 18, 21, 24.) On
February 26, 2015, Magistrate Judge Gregory B. Wormuth, presiding by consent, entered an
Order Granting Plaintiff’s Motion to Reverse and Remand. (Id., Doc. 26, Tr. 499-524.) Judge
Wormuth held that the ALJ erred in assigning weight to Plaintiff’s treating source opinions and
in assessing her RFC. (Tr. 524.)
On March 15, 2016, ALJ Gerald L. Meyer conducted a second hearing pursuant to the
Appeals Council’s order remanding the case. (Tr. 552-92.) Ms. Lopez-Martinez appeared in
person at the hearing with her attorney Michael Liebman. (Id.) The ALJ took testimony from
Ms. Lopez-Martinez (Tr. 557-583), and from an impartial VE, Diane Webber (Tr. 583-91). On
April 28, 2016, the ALJ issued an unfavorable decision. (Tr. 470-87.) Because this case had
already been remanded following judicial review, Ms. Lopez-Martinez did not file written
exceptions with the Appeals Council and instead timely filed the instant action before this Court
as permitted by 20 C.F.R. § 404.984(d).
II. Standard of Review
The Court reviews the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on
substantial evidence where it is supported by “relevant evidence . . . a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not
based on substantial evidence if it is overwhelmed by other evidence in the record[,]” Langley,

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373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374
(10th Cir. 1992). The Commissioner’s decision must “provide this court with a sufficient basis to
determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of
evidence, “the record must demonstrate that the ALJ considered all of the evidence,” and “the
[ALJ’s] reasons for finding a claimant not disabled” must be “articulated with sufficient
particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
In considering an application for disability insurance benefits, the Commissioner uses a
five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,
140 (1987). The claimant bears the burden of establishing a prima facie case of disability at
steps one through four. 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005). If the claimant successfully meets that burden, the burden of proof shifts
to the Commissioner at step five to show that the claimant is able to perform other work in the
national economy, considering the claimant’s RFC, age, education, and work experience. 20
C.F.R. § 404.1520(a)(v); Grogan, 399 F.3d at 1261.
III. Analysis
The ALJ made his decision that Ms. Lopez-Martinez was not disabled at step five of the
sequential evaluation. He found that Ms. Lopez-Martinez had the residual functional capacity to
perform light work as defined in 20 CFR § 404.1567(b). The ALJ explained that
[s]pecifically, the claimant could lift or carry ten pounds frequently or twenty
pounds occasionally, stand and walk about six or sit six hours in an eight hour day
with normal breaks, but must be allowed to stretch or change positions every
hour. The claimant could occasionally climb ramps and stairs, stoop, kneel, and
crouch. The claimant could never climb ropes, ladders, or scaffolding, crawl, be
exposed to extreme heat or extreme cold, noxious odors or gases, unprotected
heights or dangerous machinery, vibrating surfaces, or excessive noise. Mentally,
the claimant was limited to understanding, remembering and carrying out only
4

simple instructions (just one to three step tasks) that were routine or repetitive
without frequent changes in duties. The claimant was limited to only occasional
contact with the public.
(Tr. 479-80.)

Based on the RFC and the testimony of the VE, the ALJ concluded that

Ms. Lopez-Martinez was not capable of performing her past relevant work, but that considering
her age, education, work experience, and RFC, there were jobs that existed in significant
numbers in the national economy that she could perform and she was therefore not disabled.
(Tr. 486-87.)
Ms. Lopez-Martinez asserts three arguments in support of her Motion as follows: (1) the
ALJ’s RFC is not supported by substantial evidence; (2) the ALJ failed to address the VE’s
testimony that light and sedentary exertional level jobs would be eliminated if Ms. LopezMartinez required greater limitations than articulated in the ALJ’s hypothetical; and (3) the
ALJ’s evaluation of Ms. Lopez-Martinez’s symptoms pursuant to SSR 16-3p is not supported by
substantial evidence. (Doc. 13 at 20-26.) The Court agrees that the RFC is not supported by
substantial evidence because the ALJ improperly evaluated the treating physician opinions. For
this reason, this case requires remand.
A.

Relevant Medical History

Ms. Lopez-Martinez has a long history of care and treatment for fibromyalgia, migraines,
depression and post-traumatic stress disorder (“PTSD”). On March 8, 2012, Dr. Gerzain Chavez
represented in a “To Whom It May Concern” letter that he treated Ms. Lopez-Martinez for six
years beginning in 2006 for fibromyalgia, depression, and PTSD.5

5

(Tr. 410-11.)

The

Dr. Chavez opined in his letter that Ms. Lopez-Martinez’s health issues affected her ability to work. (Tr. 410-11.)
Specifically, he opined that her fibromyalgia was a chronic condition causing widespread body pain, persistent
fatigue, joint stiffness and unrefreshing sleep. (Tr. 410.) He further opined that her depression was a chronic
condition that caused persistent low mood, loss of interest and enjoyment, and reduced energy. (Id.) Finally, he
opined that her post-traumatic stress disorder caused anxiety, hypervigilance for threat, exaggerated startle response,
irritability, difficulty concentrating and sleep disruption. (Id.)

5

Administrative Record, however, only contains Dr. Chavez’s treatment notes for 2009 and 2010.
Those treatment notes indicate that from February 9, 2009, through April 6, 2010, Dr. Chavez
saw Ms. Lopez-Martinez ten times and consistently assessed, inter alia, myalgias/myositis and
depression. (Tr. 221, 226, 230, 234, 237, 240, 244, 250, 255, 258.) Dr. Chavez also consistently
noted that Ms. Lopez-Martinez was positive for decreased activity, generalized weakness,
fatigue, irritability, lethargy, pallor, insomnia, back pain, muscle weakness, myalgias, neck
stiffness, malaise, difficulty concentrating and rheumatologic manifestations. (Tr. 219-220, 225,
228-29, 232-33, 236, 239, 243, 249, 253.) Dr. Chavez prescribed various medications to treat
Ms. Lopez-Martinez’s pain, depression and PTSD, including Percocet, Lortab, Tramadol,
Cymbalta, Xanax, Wellbutrin, Temazepam, Ambien, Imitrex, Treximet, and Phenergan. (Id.)
On July 24, 2009, Ms. Lopez-Martinez established care at the Santa Fe Community
Guidance Center for Suboxone treatment related to chronic pain and opioid addiction. (Tr. 195,
215.) There she received primary physician care for administering and monitoring her Suboxone
treatment, and managing her chronic pain and other health-related issues, and received
psychiatric and behavioral health care for managing her mental health issues.
Dr. Mark Reininga provided primary care and Suboxone treatment for Ms. LopezMartinez from July 24, 2009, through December 27, 2012. Over the course of this three and a
half year period, Dr. Reininga saw Ms. Lopez-Martinez approximately monthly (forty-one times)
and consistently assessed, inter alia, opioid dependence and fibromyalgia. (Tr. 203, 205-06,
208-10, 213-15, 355-58, 397, 422-31, 726-88.) Dr. Reininga’s treatment notes indicate that
Ms. Lopez-Martinez regularly complained of fibromyalgia pain, back pain and migraines. (Tr.
206, 208-09, 210, 214, 398-99, 400-02, 428-31, 720-25, 741, 744, 748, 750, 754, 762, 765-66,
770, 787.) Although her pain level fluctuated, Dr. Reininga generally noted it between 5-7/10.

6

(Tr. 203, 205-06, 208-10, 213-15, 355-58, 397, 422-31, 726-88.) Dr. Reininga noted many times
that Ms. Lopez-Martinez’s level of distress was anxious, and that her appearance was sad,
chronically-ill appearing, and depressed. (Tr. 745, 751, 757, 760, 763, 766, 770.) On March 21,
2012, Dr. Reininga prepared a “To Whom It May Concern” letter and opined that Ms. LopezMartinez suffered from serious symptoms of fibromyalgia and migraine headaches that were
exacerbated by her trauma history, symptoms of PTSD and depression.6 (Tr. 412.) Dr. Reininga
opined that Ms. Lopez-Martinez was not able to sustain employment because “she [was] not able
to predict when she [would] have sufficient energy and/or be free from pain in order to work
consistently, even part-time.” (Id.)
On February 18, 2010, concurrent with Dr. Reininga’s care and treatment for chronic
pain and opioid addiction, LPCC Susan Heumiller performed a behavioral health assessment on
Ms. Lopez-Martinez and indicated Axis I diagnoses of major depressive disorder, recurrent,
severe, and opioid dependence, and Axis III diagnoses of fibromyalgia and migraines. (Tr. 20001.) LPCC Heumiller assessed a GAF score of 50.7 (Id.) On April 2, 2010, Ms. LopezMartinez began attending twice weekly group therapy sessions related to her Suboxone treatment
and continued to do so until October 11, 2010. (Tr. 320, 322-24, 326-30, 332-34, 336-39, 343,
345-54, 363-64.) On May 25, 2010, Ms. Lopez-Martinez began attending individual therapy
sessions and continued to do so until October 19, 2010. (Tr. 321, 325, 331, 335, 341, 344, 362.)
On June 17, 2010, LPCC Pamela Rogers prepared a Master Treatment Plan and similarly

6

LPCC Pamela Rogers, Ms. Lopez-Martinez’s mental health therapist, joined in Dr. Reininga’s “To Whom It May
Concern” regarding the impact of Ms. Lopez-Martinez’s health issues on her ability to work. (Tr. 412.)

7

A GAF score is a subjective rating on a one hundred point scale, divided into ten numerical ranges, which permits
clinicians to assign a single ranged score to a person's psychological, social, and occupational functioning. See Am.
Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32, 34 (4th ed. 2000). A GAF score of 4150 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. at 34.

7

indicated Axis I diagnoses of major depressive disorder and opioid dependence, Axis III
diagnoses of fibromyalgia and migraines, and a GAF score of 50.

(Tr. 318-19.)

On

September 21, 2010, LPCC Rogers prepared a quarterly review in which her diagnostic
impression remained the same. (Tr. 317.) On August 14, 2013, LPCC Rogers prepared a new
behavioral health assessment and added post-traumatic stress disorder to Ms. Lopez-Martinez’s
Axis I diagnoses and back pain to her Axis III diagnoses. (Tr. 833.) She assessed a GAF score
of 50. (Id.) Ms. Lopez-Martinez resumed individual therapy at that time.
On December 17, 2012, Psychiatrist Oksana Lyubarsky, M.D., began providing
psychiatric evaluation and care of Ms. Lopez-Martinez and also temporarily assumed prescribing
Suboxone for her when Dr. Reininga left Santa Fe Community Guidance Center and until she
established primary care with Dr. Rollin Oden on January 31, 2013.

(Tr. 774-79.)

Dr. Lyubarsky saw Ms. Lopez-Martinez fourteen times from December 17, 2012, through
December 8, 2015, related to her chronic pain, migraines, depression and PTSD. (Tr. 774-79,
780-84, 789-93, 794-96, 813-15, 816-18, 819-21, 826-28, 834-36, 851-58, 871-78, 904-12, 97578, 1038-42.) Dr. Lyubarsky consistently noted that Ms. Lopez-Martinez reported experiencing
anxious and fearful thoughts, depressed mood, fatigue, loss of energy, restlessness, sleep
disturbance, and poor concentration, and consistently assessed her mood as anxious, irritable,
and depressed. (Id.) Dr. Lyubarsky routinely prescribed Ibuprofen, Gabapentin, Topamax,
Imitrex, and Cymbalta for Ms. Lopez-Martinez’s chronic pain, migraines, depression and PTSD.
Id.
On January 31, 2013, Mr. Lopez-Martinez established care with Dr. Rollin Oden as her
new primary care provider at Santa Fe Community Guidance Center. (Tr. 797-800.) Dr. Oden
assumed care for administering and monitoring her Suboxone treatment and managing her

8

chronic pain and other primary health-related issues. (Tr. 797-800.) The Administrative Record
contains twenty-nine treatment notes from Dr. Oden from January 31, 2013, through January 13,
2016. (Tr. 797-812, 822-25, 837-40, 844-47, 859-70, 879-81, 893-95, 897-98, 900-903, 918-20,
922-25, 967-74, 979-90, 992-1002, 1011-18, 1023-27, 1029-33, 1043-47.) Dr. Oden regularly
noted Ms. Lopez-Martinez’s complaints of chronic pain, migraines, back and hip pain, sleep
disruption, and worsening overall physical functioning. (Tr. 799, 801, 803, 805, 811, 844, 859,
879, 893, 897, 900, 918, 979, 987, 992, 997, 1002, 1011, 1015, 1023, 1029.) In his Review of
Systems, Dr. Oden noted on twenty-two exams that Ms. Lopez-Martinez was positive for fatigue
and/or lethargy related to her chronic pain and Suboxone treatment. (Tr. 806, 810, 823, 845,
860, 864, 894, 898, 901, 919, 923, 968, 973, 981, 985, 988, 994, 999, 1004, 1025, 1031, 1044.)
He noted on nineteen exams that she was positive for excessive sweating and itching. (Tr. 806,
810, 823, 845, 860, 894, 898, 901, 919, 923, 968, 973, 981, 985, 988, 994, 999, 1004, 1025,
1031.) He noted on eighteen exams that she was positive for difficulty concentrating. (Tr. 806,
823, 845, 860, 864, 894, 901, 919, 923, 968, 973, 981, 985, 988, 994, 999, 1004, 1025.)
Dr. Oden indicated on four occasions that Ms. Lopez-Martinez’s pain level was generally a 7/10
and that the medications provided somewhere between 50% to 70% relief. (Tr. 801, 805, 822,
997.) Finally, Dr. Oden’s treatment notes included periodic PHQ-2 and PHQ-98 results, which
consistently indicated that Ms. Lopez-Martinez was positive for depression. (Tr. 822, 837, 900,
1015.)
On February 23, 2016, Dr. Oden prepared a Medical Opinion Re: Ability to Do WorkRelated Activities (Physical). (Tr. 1059-60.) Dr. Oden was instructed

8

The PHQ-9 and PHQ-2, components of the longer Patient Health Questionnaire, offer psychologists concise, selfadministered tools for assessing depression.
http://www.apa.org/pi/about/publications/caregivers/practicesettings/assessment/tools/patient-health.aspx.

9

[t]o determine your patient’s ability to do work-related activities on a day-to-day
basis in a regular work setting, please give us your opinion – based on your
examination – of how your patient’s physical capabilities are affected by the
impairment(s). Do not consider your patient’s age, sex or work experience.
Consider the medial history, the chronicity of findings (or lack thereof),
symptoms (including differing individual tolerances for pain, etc.), and the
expected duration of any work-related limitations.
(Tr. 1059.) (Emphasis in original.) Dr. Oden assessed that because of her fibromyalgia and
degenerative disc disease, Ms. Lopez-Martinez could occasionally and frequently lift less than
10 pounds; could stand and/or walk less than two hours in an 8-hour day; could sit less than two
hours in an 8-hour day; could sit for 15 minutes before needing to change positions; could stand
for 15 minutes before needing to change positions; needed the opportunity to shift at will from
sitting or standing/walking; and needed to walk around five 5 minutes every 15 minutes.
(Tr. 1059.) He assessed that she could never twist, stoop, crouch, or climb stairs or ladders.
(Tr. 1060.) He assessed that she had reaching (including overhead), pushing/pulling, and feeling
limitations. (Id.) He assessed that she needed to avoid all exposure to fumes, odors, dusts,
gases, soldering fluxes, solvents/cleaners and chemicals; needed to avoid even moderate
exposure to perfumes; and needed to avoid concentrated exposure to extreme cold and extreme
heat. (Id.) He assessed that Ms. Lopez-Martinez needed to adjust positions frequently, and that
he anticipated she would be absent from work more than four days per month as a result of her
impairments. (Id.)
B.

RFC Assessment

Ms. Lopez-Martinez argues that the ALJ’s RFC is not supported by substantial evidence
for two reasons. First, she argues that the ALJ failed to properly evaluate treating physician
Dr. Rollin Oden’s medical source statement. Second, she argues that the ALJ improperly gave
great weight to nonexamining State Agency medical consultant Dr. Paul Cherry’s opinion in

10

assessing Ms. Lopez-Martinez’s mental RFC because it predated her psychiatric care and
treatment with Dr. Lyubarsky, and because Dr. Cherry’s opinion was inconsistent with
Dr. Lyubarsky’s treatment notes. (Doc. 13 at 20-24.) The Commissioner contends that the
ALJ’s RFC is supported by substantial evidence because the ALJ properly considered
Dr. Oden’s opinion and reasonably found that it was dated more than two years after the
expiration of Ms. Lopez-Martinez’s last insured date and was not consistent with his own
medical findings.

(Doc. 17 at 9-11.)

The Commissioner further contends that the ALJ

permissibly gave “great weight” to Dr. Cherry’s opinion, and reviewed Dr. Lyubarsky’s
treatment notes and implicitly concluded that they did not detract from Dr. Cherry’s assessment.
(Doc. 17 at 11-12.)
Assessing a claimant’s residual functional capacity is an administrative determination left
solely to the Commissioner. 20 C.F.R. §§ 404.1546(c) and 416.946(c) (“If your case is at the
administrative law judge hearing level or at the Appeals Council review level, the administrative
law judge or the administrative appeals judge at the Appeals Council . . . is responsible for
assessing your residual functional capacity.”); see also SSR 96-5p, 1996 WL 374183, at *2
(stating that some issues are administrative findings, such as an individual’s RFC). In assessing
a claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s medically
determinable impairments, and review all of the evidence in the record. Wells v. Colvin, 727
F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. § 404.1545(a)(2) and (3). The ALJ must
consider and address medical source opinions and must always give good reasons for the weight
accorded to a treating physician’s opinion. 20 C.F.R. § 404.1527(c); SSR 96-8p, 1996 WL
374184, at *7. If the RFC assessment conflicts with an opinion from a medical source, the ALJ
must explain why the opinion was not adopted. SSR 96-8p, 1996 WL 374184 at *7. Most

11

importantly, the ALJ’s “RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.”
Wells, 727 F.3d at 1065 (quoting SSR 96-8p, 1996 WL 374184, at *7). When the ALJ fails to
provide a narrative discussion describing how the evidence supports each conclusion, citing to
specific medical facts and nonmedical evidence, the court will conclude that her RFC
conclusions are not supported by substantial evidence. See Southard v. Barnhart, 72 F. App’x
781, 784-85 (10th Cir. 2003). The ALJ’s decision must be sufficiently articulated so that it is
capable of meaningful review. See Spicer v. Barnhart, 64 F. App’x 173, 177-78 (10th Cir. 2003).
1.

Dr. Oden’s Opinion

Dr. Oden became Ms. Lopez-Martinez’s primary care treating physician in January 2013.
As summarized above, he saw her almost monthly from January 2013 through January 2016, and
completed an RFC assessment on February 23, 2016. See Section III.A., supra. The ALJ
rejected Dr. Oden’s medical source statement because it was dated more than two years after the
expiration of Ms. Lopez-Martinez’s insured status and because Dr. Oden failed to indicate when
the limitations he assessed were established.

(Tr. 484.)

The ALJ further explained that

Dr. Oden’s opinion was inconsistent with his own medical findings and other orthopedic findings
for the relevant period of time. (Id.) The ALJ cited to five of Dr. Oden’s twenty-nine treatment
notes to support his conclusion that Ms. Lopez-Martinez’s physical exams were benign, and
cited to one orthopedic note to support his conclusion that her back pain had improved and that
there was “no need” for surgical intervention. (Id.) The Court is not persuaded that discounting
Dr. Oden’s assessment because it post-dated Ms. Lopez-Martinez’s date of last insured was a
legitimate reason for doing so given the facts of this case. The Court is also not persuaded that
Dr. Oden’s opinion is inconsistent with his own medical findings and other orthopedic findings

12

for the relevant period of time. For these reasons, the Court finds that the ALJ failed to properly
evaluate Dr. Oden’s medical source statement and provide legitimate reasons for rejecting it as
he was required to do.
“Treating source medical opinions are [] entitled to deference,” and must be either given
controlling weight or assigned some lesser weight “using all of the factors provided in 20 C.F.R.
404.1527 and 416.927.” SSR 96-2p, 1996 WL 3741888, at *4. To ensure that treating source
opinions receive proper deference, an ALJ reviewing the opinions of treating sources must
engage in a sequential analysis. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
First, an ALJ must determine whether the opinion deserves controlling weight by considering
whether it is both supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial evidence in the record. 20 C.F.R.
§ 404.1527. If one or both of these conditions is lacking, an ALJ is not free to simply disregard
the opinion or pick and choose which portions to adopt. Instead, the ALJ must proceed to a
second determination, where the ALJ must both (1) weigh the opinion “using all of the factors
provided in 20 C.F.R. § 404.1527 and 416.927” and (2) “give good reasons in the notice of
determination or decision for the weight [the ALJ] ultimately assigns the opinions.” Watkins,
350 F.3d at 1300-1301 (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey
v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)). Although the ALJ’s decision need not include an
explicit discussion of each fact, the record must reflect that the ALJ considered every factor in
the weight calculation. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).

If the ALJ

rejects the opinion completely, he must then give “῾specific, legitimate reasons’” for doing so.
Watkins, 350 F.3d at 1301; see also Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012)
(according little weight is effectively rejecting an opinion).

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a.

The Record Evidence During the Relevant Period of
Time Supports Dr. Oden’s Assessment

The ALJ improperly discounted Dr. Oden’s assessment as out of time. The Tenth Circuit
has explained that the relevant question in the face of a retrospective diagnosis is whether there is
evidence of actual disability prior to the expiration of a claimant’s insured status. Potter v. Sec’y
of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990); see also Bird v.
Commissioner of Social Sec. Admin., 699 F.3d 337, 341 (4th Cir. 2012) (finding that post-datedlast-insured medical evidence generally is admissible in a Social Security disability
determination in such instances in which that evidence permits an inference of linkage with the
claimant’s pre-DLI condition).

Here, the parties do not contend that Dr. Oden was

retrospectively diagnosing any physical or mental impairments. Instead, the issue is whether
Dr. Oden was retrospectively assessing Ms. Lopez-Martinez’s functional limitations based on
her well established impairments when, “there is no indication from Dr. Oden as to when
limitations of this severity were established.” (Tr. 484.) Relying on Potter for guidance, the
relevant question then is whether the record contains evidence during the relevant period of time
such that the functional limitations Dr. Oden assessed could apply to Ms. Lopez-Martinez’s preDLI condition.
The ALJ improperly concluded that Dr. Oden’s treatment notes during the relevant
period of time were negative and/or benign. The ALJ relied on certain negative findings from
five of Dr. Oden’s 2013 treatment notes, i.e., normal respiratory and cardiovascular function, no
evidence of memory or sensory loss, no motor weakness, and intact coordination, balance and
gait, to conclude that Ms. Lopez-Martinez’s exams were benign. (Tr. 484.) However, the ALJ
failed to review the entirety of Dr. Oden’s treatment notes and selectively chose only those parts
that were favorable to a finding of nondisability, which he was not entitled to do. Haga v.
14

Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“An 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.”). The ALJ further failed to consider that fibromyalgia pain may vary in severity
over time and may even be absent on some days, and that “physical examinations will usually
yield normal results – a full range of motion, no joint swelling, as well as normal muscle strength
and neurological reactions.” Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003)
(quotation omitted); see also SSR 12-2p, 2012 WL 3104869, at *5 (explaining the nature of
fibromyalgia pain). The rulings further explain that it is important to have access to longitudinal
information about the person as is present here. SSR 12-2p, 2012 WL 3104869, at *5.
The Court’s review of Dr. Oden’s 2013 treatment notes demonstrates they are consistent
with his assessed limitations based on Ms. Lopez-Martinez’s fibromyalgia and degenerative disc
disease.

Dr. Oden saw Ms. Lopez-Martinez ten times from January 13, 2013, through

December 31, 2013. (Tr. 797-800, 801-04, 805-08, 809-12, 822-25, 837-40, 844-47, 863-66,
867-70, 879-81.) During that time, Dr. Oden noted Ms. Lopez-Martinez’s persistent complaints
of chronic pain, migraines, worsening back pain, and worsening overall physical functioning.
(Tr. 799, 801, 803, 805, 811, 844, 879.) In his Review of Systems, Dr. Oden noted on five
exams that Ms. Lopez-Martinez was positive for fatigue and/or lethargy. (Tr. 806, 810, 823,
845, 860, 864.) He noted on four exams that she was positive for nausea, excessive sweating and
difficulty concentrating. (Tr. 806, 810, 823, 845.) He indicated on three exams that her average
pain level was 7/10 and that her medications provided 50% to 70% relief. (801, 805, 822.)
Dr. Oden also noted that patient health questionnaires administered as part of her behavioral
health care indicated that Ms. Lopez-Martinez was positive for depression. (Tr. 822, 837.)

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Thus, when viewed in their entirety and in the context of chronic pain related to fibromyalgia,
Dr. Oden’s treatment notes were not benign.
Dr. Oden referred Ms. Lopez-Martinez for specialized care related to her worsening back
pain during the relevant period of time. On March 20, 2013, Dr. Oden referred Ms. LopezMartinez for an MRI, the results of which were positive for progressive degenerative disc disease
and increased foraminal stenosis. (Tr. 707-08.) On March 30, 2013, he referred her to a pain
specialist, who recommended and administered a lumbar epidural steroid injection which
provided only short term relief. (Tr. 710-12, 714-16.) On August 22, 2013, Dr. Oden referred
Ms. Lopez-Martinez to neurosurgeon Dr. Hal Hankinson. (Tr. 714-16.) Dr. Hankinson noted on
physical exam that Ms. Lopez-Martinez had back tenderness and decreased range of motion.
(Doc. 714-16.) He assessed chronic lumbar pain compatible with degenerative disc disease at
multiple levels and progressive “Modic changes particularly at L5-S1.” (Tr. 715.) Contrary to
the ALJ’s conclusion that Dr. Hankinson indicated there was “no need” for surgery (Tr. 484),
Dr. Hankinson noted that he knew of no immediate answer for Ms. Lopez-Martinez’s back pain
and that “certainly a multiple level fusion would not be advisable.” (Tr. 715.) (Emphasis added.)
Dr. Hankinson opined that he saw no contraindication to physical therapy which might help, and
suggested that swimming might provide some relief. (Id.)
Additionally, other treating physicians, whose opinions the ALJ also rejected,9 prepared
“To Whom It May Concern” letters during the relevant period of time and explained how
Ms. Lopez-Martinez’s health issues impacted her ability to work.

On March 8, 2012,

Dr. Chavez explained the impact on Ms. Lopez-Martinez’s health as the result of her
9

The ALJ explained he rejected Dr. Chavez’s opinion because Dr. Chavez prepared his “To Whom It May
Concern” letter two years after he had stopped treating Mr. Lopez-Martinez. (Tr. 484.) The ALJ explained he
rejected Dr. Reininga’s opinion because it was not consistent with his own medical findings or other orthopedic
findings for the relevant period. (Id.) The issue of whether the ALJ applied the correct legal standard in evaluating
these treating physician opinions is not before the Court.

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fibromyalgia, depression and PTSD. (Tr. 410-11.) On March 21, 2012, Dr. Reininga, joined by
LPCC Rogers, opined that Ms. Lopez-Martinez suffered serious symptoms from fibromyalgia,
migraine headaches, PTSD, and depression, and that pain and fatigue rendered her unable to
sustain gainful employment, even on a part-time basis. (Tr. 412.) Further, Dr. Lyubarsky,
Ms. Lopez-Martinez’s treating psychiatrist, consistently noted during the relevant period of time
that Ms. Lopez-Martinez reported experiencing, inter alia, fatigue, loss of energy, restlessness,
sleep disturbance, and poor concentration. (Tr. 774-79, 780-84, 789-93, 794-96, 813-15, 816-18,
819-21, 826-28, 834-36, 871-78.) On September 3, 2013, Dr. Lyubarsky noted that Ms. LopezMartinez was “practically functioning on a very limited basis.” (Tr. 836.)
The record contains substantial evidence to support an inference that Dr. Oden’s assessed
functional limitations related to Ms. Lopez-Martinez’s pre-DLI condition.

Therefore,

discounting Dr. Oden’s medical source statement because it post-dated Ms. Lopez-Martinez’s
date of last insured is not a legitimate reason for doing so given the evidence here. Further, in
noting the insufficiency of Dr. Oden’s assessment as lacking “indication . . . as to when
limitations of this severity were established,” (Tr. 484), the ALJ had a duty to re-contact
Dr. Oden and clarify that information before issuing his determination. See White v. Barnhart,
298 F.3d 903, 908 (10th Cir. 2001) (the ALJ’s duty to recontact the treating physician is triggered
where the information received is inadequate and so incomplete that it cannot be considered); see
also 20 C.F.R. § 404.1520b (explaining that medical opinions are considered insufficient when
they do not contain all the information needed to make a determination or a decision whether a
claimant is disabled). The ALJ failed to do so.

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b.

Dr. Oden’s Assessment Is Consistent With His
Treatment Notes and the Record As a Whole

The ALJ’s explanation that Dr. Oden’s medical source statement was inconsistent with
his own medical findings or other orthopedic findings for the relevant period is not supported by
substantial evidence. See Section III.B.1.a., supra. As discussed above, the evidence refutes the
ALJ’s conclusion that Dr. Oden’s assessment was inconsistent with his examinations and
treatment of Ms. Lopez-Martinez. Id. Further, the evidence from other treating and examining
sources complements rather than undermines Dr. Oden’s assessment. Id. Moreover, in light of
Dr. Oden’s long treatment history and familiarity with Ms. Lopez-Martinez’s physical and
mental impairments, and in light of the record evidence as a whole, the ALJ’s perfunctory
rejection of Dr. Oden’s assessment does not convince the Court that he properly considered any
of the regulatory factors in weighing Dr. Oden’s opinion as he was required to do. This is
reversible error. Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (finding that 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).
2.

Mental RFC

Ms. Lopez-Martinez argues that the ALJ’s RFC is also not supported by substantial
evidence because the ALJ improperly gave great weight to nonexamining State Agency medical
consultant Dr. Paul Cherry’s opinion when it predated her treatment with Dr. Lyubarsky and was
inconsistent with Dr. Lyubarsky’s findings. (Doc. 13 at 20-22.) The Court agrees.
On May 21, 2010, Dr. Cherry reviewed Ms. Lopez-Martinez’s medical records and
prepared a Psychiatric Review Technique and a Mental Residual Functional Capacity
Assessment. (Tr. 278-91, 282-93.) Dr. Cherry assessed that Ms. Lopez-Martinez had moderate
limitations in her social functioning and concentration, persistence and pace. (Tr. 292.) He also
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assessed that she was moderately limited in her ability (1) to understand, remember, and carry
out detailed instructions; (2) to maintain attention and concentration for extended periods of
time; and (3) to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods. (Tr. 278-79.) In his determination, the ALJ accorded great
weight to Dr. Cherry’s opinion that Ms. Lopez-Martinez had the mental residual functional
capacity for, inter alia, simple work. (Tr. 484-85.) In so doing, he explained that
[d]espite longstanding treatment for mood disorder and anxiety/PTSD, mental
status examination findings as reported by the claimant’s treating psychiatrist
were overall within normal limits (Exhibit 30F, pp. 57, 63, 72, 73, 76, 95, 98,
1010, 108, 113, 116, and Exhibit 31F, pp. 27 and 7).
(Tr. 485.)
Ms. Lopez-Martinez began treating with Dr. Lyubarsky on December 17, 2012, and saw
her ten times during the relevant period of time. See Section III.A, supra. The Court’s review of
the record demonstrates that the ALJ improperly concluded that Dr. Lyubarsky’s mental status
exams were normal, failed to consider the entirety of her treatment notes, and selectively chose
only those parts that were favorable to a finding of nondisability, which he was not entitled to do.
Haga, 482 F.3d at 1208. Ten of the treatment notes the ALJ cited fall within the relevant period
of time. (Tr. 776, 782, 791-92, 795, 814, 817, 820, 827, 835, 877.) Of those ten treatment notes,
in all but two instances, Dr. Lyubarsky’s mental status exams indicated that Ms. LopezMartinez’s mood was anxious, depressed, irritable, and/or labile. (Tr. 776, 782, 791-92, 795,
814, 817, 820, 827, 832.)

Many of Dr. Lyubarsky’s mental status exams indicated that

Ms. Lopez-Martinez was experiencing sleeping problems.

(Tr. 776, 795, 820, 827, 832.)

Dr. Lyubarsky’s treatment notes consistently noted that Ms. Lopez-Martinez reported
experiencing anxious and fearful thoughts, depressed mood, fatigue, loss of energy, restlessness,
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sleep disturbance, and poor concentration. (Tr. 774, 780, 789, 794, 813, 816, 819, 826, 834,
871.) Dr. Lyubarsky’s assessments remained constant and indicated Axis I diagnoses of PTSD,
opioid dependence-remission, recurrent major depression, severe, and a GAF score of 50. (Tr.
777, 783, 792, 795, 814, 817, 820, 827, 835, 877.) On four exams, Dr. Lyubarsky noted that
although Ms. Lopez-Martinez was compliant with her medications as prescribed, she was having
minimal improvement and/or worsening symptoms. (Tr. 814, 816, 820, 827.) On September 3,
2013, Dr. Lyubarsky noted that Ms. Lopez-Martinez was “practically functioning on a very
limited basis.” (Tr. 836.)
The ALJ’s review and evaluation of Dr. Lyubarsky’s findings were insufficient.
Dr. Lyubarsky was Ms. Lopez-Martinez’s treating psychiatrist during the relevant period of time.
As such, her findings were entitled to deference. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th
Cir. 2011); SSR 96-2p, 1996 WL 3741888, at *4. Although Dr. Lyubarsky did not prepare a
medical source statement per se regarding Ms. Lopez-Martinez’s functional limitations related to
her ability to do work related mental activities, her treatment notes support the chronic nature of
Ms. Lopez-Martinez’s PTSD and depression, and the persistent presence of, inter alia, fatigue,
loss of energy, and poor concentration.

Dr. Lyubarsky’s treatment notes also consistently

reflected a GAF score of 50, a score Ms. Lopez-Martinez maintained throughout her six years of
psychiatric and behavioral health care she received at Santa Fe Community Guidance Center.
The ALJ completely ignored these findings. See generally, Keyes-Zachary v. Astrue, 695 F.3d
1156, 1164 (10th Cir. 2012) (considering GAF scores and expressing “concern” with scores of 46
and 50); Lee v. Barnhart, 117 Fed.Apx. 674, 678 (10th Cir. 2004) (unpublished) (“Standing
alone, a low GAF score does not necessarily evidence an impairment seriously interfering with a
claimant’s ability to work . . .” but “[a] GAF score of fifty or less, . . . does suggest an inability to

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keep a job.”). For these reasons, the Court finds the ALJ erred in according great weight to
Dr. Cherry’s opinion in light of Dr. Lyubarsky’s findings. See Robinson v. Barnhart, 366 F.3d
1078, 1084 (10th Cir. 2004) (the opinion of an agency doctor, who never sees the claimant, is
generally entitled to less weight than the opinion of a treating or examining doctor). The ALJ
further failed to properly consider and evaluate Dr. Lyubarsky’s findings as a treating physician,
as he was required to do.
For all of the foregoing reasons, the Court finds that the ALJ’s RFC is not supported by
substantial evidence.

The ALJ failed to apply the correct legal standards in evaluating

Dr. Oden’s medical source statement. The ALJ also improperly accorded Dr. Cherry’s opinion
great weight in light of conflicting evidence from Ms. Lopez-Martinez’s treating psychiatrist.
Finally, the ALJ failed to apply the correct legal standards in evaluating Dr. Lyubarsky’s
findings. On remand, the ALJ is directed to properly evaluate Dr. Oden’s medical source
statement and Dr. Lyubarsky’s findings in accordance with Tenth Circuit Case law, and the
applicable regulations and rulings.

The ALJ is further directed to recontact Ms. Lopez-

Martinez’s treating physicians, as necessary, to determine her functional limitations to do work
related physical and mental activities during the relevant period of time.
C.

Remaining Issues

The Court will not address Ms. Lopez-Martinez’s remaining claims of error because they
may be affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350 F.3d
1297, 1299 (10th Cir. 2003).

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D.

Immediate Award of Benefits

The Court declines to order an immediate award of benefits because of the need for
clarification regarding whether the limitations Dr. Oden assessed apply during the relevant
period of time.
IV. Conclusion
For the reasons stated above, Ms. Lopez-Martinez’s Motion to Reverse and Remand for
Rehearing (Doc. 13) is GRANTED.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent

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