Silva v. Social Security Administration

Filing 24

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting 19 Plaintiff's MOTION to Remand to Agency. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PRECIOUS SILVA,
Plaintiff,
v.

CIV 16-0956 KBM

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reverse and
Remand for a Rehearing with Supporting Memorandum (Doc. 19), filed April 5, 2017.
Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties
have consented to me serving as the presiding judge and entering final judgment.
Doc. 8. Having reviewed the parties’ submissions, the relevant law, and the relevant
portions of the Administrative Record, the Court will grant the Motion.
I.

Introduction
Plaintiff asserts that she became disabled and unable to sustain any substantial

gainful activity at the age of 26 due to various impairments. The Administrative Law
Judge (“ALJ”) assigned to review her case reached the opposite conclusion. Plaintiff
now appeals to this Court, asserting that the ALJ improperly discounted the opinion of
her treating nurse practitioner and relied on unsound information provided by the
vocational expert (“VE”), who testified that Plaintiff can still work. The Court agrees that
the ALJ’s reasons for discounting the opinions of Plaintiff’s treating nurse practitioner do
not withstand scrutiny, and therefore will remand on this basis.

II.

Procedural History
On September 24, 2012, Plaintiff protectively filed applications with the Social

Security Administration for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act. AR at 79-80, 187-88.1 Plaintiff
alleged a disability onset date of May 12, 2012, the day she stopped working, due to
diabetes, migraines, Cushing’s syndrome, degenerative disk disease, polycystic ovary
syndrome (“PCOS”) and recurring abscesses. AR at 208, 219. Plaintiff had most
recently worked as a caregiver for the disabled. AR at 55. She testified that she can no
longer do this kind of work because it was too hard on her back, she “was calling in
constantly due to the pain” and because she was “getting a lot of abscesses that [she]
had to get removed surgically.” AR at 56. Plaintiff has neither looked for work nor
engaged the services of the state Division of Vocational Rehabilitation since she
stopped working in this capacity. AR at 56.
The agency denied Plaintiff’s claims initially and upon reconsideration, and she
requested a de novo hearing before an administrative law judge. AR at 79-124, 140.
ALJ Barry O’Melinn held an evidentiary hearing on August 6, 2014, at which Plaintiff
and Vocational Expert (“VE”) Diane Weber testified. AR at 50-78. Plaintiff was
represented by Ruth Cohen, of the office of Bill Gordon & Associates, at the hearing.
AR at 51. Ms. Cohen stipulated to Ms. Weber’s credentials. AR at 72.
The ALJ issued an unfavorable decision on February 2, 2015. AR at 30-43. Ms.
Cohen subsequently withdrew from Plaintiff’s case, AR at 29, and Plaintiff’s current
counsel, Michael Armstrong, entered his appearance on March 9, 2015. AR at 26-28.
1

Documents 12-1 through 12-11 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.

2

Plaintiff submitted a Request for Review of the ALJ’s Decision to the Appeals Council,
which the Council denied on June 24, 2016. AR at 28, 1-4. As such, the ALJ’s decision
became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42
U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits 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.
§ 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a
five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).2
At Step One of the sequential evaluation process, ALJ O’Melinn found that
Plaintiff has not engaged in substantial gainful activity since her alleged onset date. AR
at 35. At Step Two, he determined that Plaintiff has the severe impairments of “diabetes
mellitus; hypertension; obesity; back disorder; hypothyroid; headaches; polyarthralgias;

2

The Tenth Circuit recently summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333
n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in
a substantially gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009). If not, the ALJ then decides whether the claimant has a medically severe
impairment at step two. Id. If so, at step three, the ALJ determines whether the
impairment is “equivalent to a condition ‘listed in the appendix of the relevant
disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th
Cir. 2004)). Absent a match in the listings, the ALJ must decide at step four
whether the claimant's impairment prevents him from performing his past
relevant work. Id. Even if so, the ALJ must determine at step five whether the
claimant has the RFC to “perform other work in the national economy.” Id.

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depression; and fibromyalgia.” AR at 35. At Step Three, the ALJ concluded that
Plaintiff’s impairments, individually and in combination, do not meet or medically equal
the regulatory “listings.” AR at 36-37.
When a claimant does not meet a listed impairment, the ALJ must determine her
residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC “is the
most you can still do despite your limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). “RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ
determined that Plaintiff retains the RFC to
perform a range of sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) and SSR 83-10 specifically as follows: the claimant can lift
and/or carry 10 pounds occasionally and less than 10 pounds frequently;
she can stand and/or walk for six hours out of an eight-hour workday with
regular breaks; she can sit for six hours out of an eight-hour workday with
regular breaks and she is unlimited with respect to pushing and/or pulling,
other than as indicated for lifting and/or carrying. Claimant must never
climb ladders, ropes or scaffolds. She is limited to occasional climbing of
ramps, stairs, balancing, stooping, kneeling, crouching and crawling. She
must avoid concentrated exposure to extreme cold, heat, exposure to
operation control of moving machinery, unprotected heights and
hazardous machinery. The claimant can understand, carry out, and
remember simple instructions and make commensurate work related
decisions, respond appropriately to supervision, coworkers and works
situations, deal with routine changes in work setting, maintain
concentration persistence and pace of up to and including 2 hours at a
time with normal breaks throughout the workday.
AR at 37-38.
Employing this RFC at Steps Four and Five, and relying on the unchallenged
testimony of the VE, the ALJ determined that Plaintiff is unable to perform her past
relevant work as a home attendant, cashier, or salesperson. AR at 41. However, the
ALJ found that there are jobs that exist in significant numbers in the national economy

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that Plaintiff can perform despite her limitations. AR at 41-42. Specifically, the ALJ
determined that Plaintiff retains the residual functional capacity to work as an addresser,
final assembler, and as a charge account clerk. AR at 42. Accordingly, the ALJ
determined that Plaintiff is not disabled and denied benefits. AR at 42-43.
III.

Legal Standards
This Court “review[s] the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence and whether the correct legal
standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting
Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
IV.

Analysis
A) Weight Assigned to Certified Nurse Practitioner (CNP) Skiles’ Opinions
CNP Aaron Skiles began treating Plaintiff on February 7, 2014. AR at 1622. At

the new patient exam, Plaintiff reported that she was a poorly-compliant diabetic, was
experiencing blood in her stool, and had a history of degenerative disc disease. AR at
1622. CNP Skiles assessed Plaintiff with uncontrolled diabetes, morbid obesity, back
pain and melena stools. AR at 1624. He prescribed Lantus and diabetes management,
diet, weight loss and physical therapy, and ordered a colonoscopy3 and endocscopy.
AR at 1624-25.
Plaintiff followed-up with CNP Skiles on February 28, 2014. AR at 1616. In
addition to her previous complaints, Plaintiff reported a history of migraines. AR at 1616.
CNP Skiles assessed Plaintiff with uncontrolled diabetes, hypothyroidism,
3

Plaintiff underwent a colonoscopy on March 18, 2014; the results were normal. AR at 1630.

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hypovitaminosis D, low iron saturation, elevated inflammatory markers and migraines.
AR at 1620. He renewed her lispro insulin, started her on levothyroxine, vitamin D and
ferrous sulfate, referred her to rheumatology for additional workup of autoimmune
disorders, and refilled Fioricet and Phenergan for Plaintiff’s migraines. AR at 1621.
Plaintiff reported to physical therapy on April 11, 2017. AR at 1832. She
presented with low back pain, decreased core strength and decreased tolerance for
physical activity. AR at 1831. Plaintiff had negative straight leg raise, slump, and squish
tests. AR at 1831. In terms of functional limitations, Plaintiff was unable to stand from a
standard chair without using her hands, was unable to ambulate greater than 2 miles
without pain, and was unable to stand longer than 15 minutes to cook. AR at 1831. It
was decided that Plaintiff would be treated one to two times per week for four weeks
with therapeutic exercise, manual therapy, e-stem ultrasound, neuromuscular
education, traction, and ice and/or heat as needed for pain and inflammation. AR at
1831-32. However, Plaintiff testified that physical therapy made her back “inflame
more,” AR at 58, and there is no evidence that Plaintiff followed up with further
treatment.
On June 11, 2014, CNP Skiles filled out a “Medical Opinion Re: Ability to Do
Work-Related Activities” form. See AR at 1840-43. On this form CNP Skiles indicated
that Plaintiff’s ability to lift and carry is restricted to a maximum of 10 pounds
occasionally and less than 10 pounds frequently. AR at 1840. CNP Skiles further opined
that Plaintiff is only able to stand, walk and sit less than two hours during an eight-hour
workday and would require a change in position every five minutes while sitting. AR at
1840. CNP Skiles also opined that Plaintiff should never stoop, crouch, climb ladders or

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crawl and only occasionally twist, climb stairs and kneel. AR at 1841. CNP Skiles
indicated that this degree of limitation resulted from, among other things, Plaintiff’s
degenerative disc disease. AR at 1842. Ultimately, CNP Skiles indicated that Plaintiff
would be absent from work more than three times a month due to her impairments or
treatment, and was medically unable to work full-time. AR at 1842.
The ALJ gave “partial weight consistent with my decision herein” to CNP Skiles’
opinions as stated on the form he had filled out. AR at 41. The ALJ gave two reasons
for assigning this weight: (1) because CNP Skiles’ “opinion is not from an acceptable
medical source” and (2) because it is “inconsistent with the claimant’s physical therapy
notes.” AR at 41 (citing Exhibit 12F/9). Plaintiff contends that these reasons are flawed,
and, therefore, the ALJ failed to weigh CNP Skiles’ opinion according to law. Doc. 19 at
13-16. Specifically, Plaintiff posits that “[h]ad ALJ O’Melinn properly considered the
opinion of CNP Skiles and incorporated the limitations in CNP Skiles’s assessment, a
more restrictive RFC finding would have resulted.” Id. at 16. To be sure, if Plaintiff is as
restricted as CNP Skiles opined, then she is unable to perform even sedentary work as
defined by the regulations. See 20 C.F.R. §§ 404.1567(a), 416.967(a). Thus, it is
imperative that the ALJ’s reasons for discounting CNP Skiles’ opinions are supported by
the law and substantial evidence.
There is a distinction in the regulations between “acceptable” medical sources
and those that are not. See SSR 06-03p, 2006 WL 2329939 at *2 (Aug. 9, 2006).
“’Acceptable medical sources’ include licensed physicians, psychologists, optometrists,
podiatrists, and qualified speech-language pathologists.” Id. Any other medical provider
is referred to as an “other source.” Id. Medical evidence and opinions from “other

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sources” are weighed under the factors stated in 20 C.F.R. § 404.1527(c)(1) through
(c)(6) and § 416.927(c)(1) through (c)(6). See 20 C.F.R. §§ 404.1527(f)(1),
416.927(f)(1). These factors include: (1) the examining relationship; (2) the treatment
relationship; (3) supportability of the opinion; (4) consistency of the medical opinion with
the record as a whole; (5) specialization; and, (6) any “other factors” “which tend to
support or contradict the medical opinion.” 20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6); see also Crowder v. Colvin, 561 F. App’x 740, 744 (10th Cir. 2014).
“[N]ot every factor for weighing opinion evidence will apply in every case because
the evaluation of an opinion from a medical source who is not an acceptable medical
source . . . depends on the particular facts in each case.” 20 C.F.R. §§ 404.1527(f)(1),
416.927(f)(1); see also SSR 06-03p, 2006 WL 2329939 at *4. However, depending on
the facts of the case, an opinion from a medical source that is not “acceptable” under
the regulations may outweigh one that is. 20 C.F.R. §§ 404.1527(f)(1), 416.927(f)(1);
SSR 06-03p, 2006 WL 2329939 at *5. Ultimately, “[i]n the case of a nonacceptable
medical source like [CNP Skiles], the ALJ’s decision is sufficient if it permits us to ‘follow
the adjudicator’s reasoning.’” Paulsen v. Colvin, 665 F. App’x 660, 666 (10th Cir. 2016)
(quoting Keyes-Zachary, 695 F.3d at 1164, in turn quoting SSR 06-03p, 2006 WL
2329939 at *6). Because the Court cannot follow the ALJ’s reasons for discounting CNP
Skiles opinions in this case, it must remand for further analysis.
As to the ALJ’s first stated reason, while there is a distinction in the regulations
between “acceptable medical sources” and those that are not, see SSR 06-03p, 2006
WL 2329939 at *2, this distinction is not applicable in the present case. Whereas the
distinction is “necessary” because only “acceptable medical sources” can “establish the

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existence of a medically determinable impairment,” give “medical opinions”4 and be
considered “treating sources5 . . . whose medical opinions may be entitled to controlling
weight,” id., as the Commissioner recognized when promulgating SSR 06-03p: “[w]ith
the growth of managed health care in recent years and the emphasis on containing
medical costs, medical sources who are not ‘acceptable medical sources’ . . . have
increasingly assumed a greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists.” SSR 06-03p, 2006 WL
232939 at *3. As such, while information from “other sources” “cannot establish the
existence of a medically determinable impairment . . . information from such ‘other
sources’ may be based on special knowledge of the individual and may provide insight
into the severity of the impairment(s) and how it affects the individual’s ability to
function.” SSR 06-03p, 2006 WL 2329939 at *2; see also Carpenter v. Astrue, 537 F.3d
1264, 1267-68 (10th Cir. 2008) (explaining that while “other sources” cannot diagnose
an impairment, their opinions are relevant to “the questions of severity and
functionality”) (citing Frantz v. Astrue, 509 F.3d 1299, 1301-02 (10th Cir. 2007)). “Other
medical evidence[,]” which “is evidence from a medical source that is not objective
medical evidence or a medical opinion” as defined by the regulations, includes a
claimant’s medical history, clinical findings, and “treatment prescribed with response.”
20 C.F.R. §§ 404.1513(a)(3), 416.913(a)(3).

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“Medical opinions are statements from acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”
20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).
5

“Treating source means your own acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).

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In sum, it was only appropriate for the ALJ to consider the fact that CNP Skiles is
not an acceptable medical source when deciding what weight to assign to his opinions
to the extent that those opinions sought to establish the existence of a “medically
determinable impairment” or where the opinions are “medical” under the regulations.
See SSR 06-03p, 2006 WL 2329939 at *2; 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).
Thus, while he could not opine as to Plaintiff’s “diagnosis, prognosis” or issue “a
statement that reflects a judgment(s) about the nature and severity of [Plaintiff’s]
impairment(s)[,]” see 20 C.F.R. §§ 404.1513(a)(3), 416.913(a)(3), CNP Skiles could
permissibly opine as to the functional effects thereof. This is exactly what he did.
Accordingly, the ALJ’s first reason for only affording partial weight to CNP Skiles’
opinions is not supported by law.
Still, the Tenth Circuit has indicated that where an ALJ’s other reasons are
supported by the record, it is not improper for him to rely on the fact that a medical
source is “nonacceptable” under the regulations. See Fulton v. Colvin, 631 F. App’x
498, 505 (10th Cir. 2015) (citing SSR 06-03p, 2006 WL 2329939 at *5). This is
particularly true where contrary medical evidence comes from an “acceptable” medical
source. Id.; see also Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) (“Medical
evidence may be discounted if it is internally inconsistent or inconsistent with other
evidence.”). Of course, this was the ALJ’s second reason for only assigning partial
weight to CNP Skiles’ opinions – that they were inconsistent with Plaintiff’s physical
therapy notes. AR at 41. The question, therefore, is whether this assertion is supported
by substantial evidence.6
6

Plaintiff, relying on Lewis v. Berryhill, 680 F. App’x 646 (10th Cir. 2017), argues that the ALJ’s
statement as to consistency is too vague. However, in Lewis the ALJ failed to indicate which

10

The Court finds that it is not. As Plaintiff correctly points out, the physical therapy
notes that the ALJ relies on to diminish the weight he assigns to CNP Skiles’ opinions
are actually consistent with those opinions. At physical therapy, it was determined that
Plaintiff was unable to ambulate greater than 2 miles without pain and was unable to
stand longer than 15 minutes to cook. AR at 1831. Likewise, CNP Skiles opined that
Plaintiff is unable to stand and walk for greater than two hours during an eight-hour
workday. AR at 1840. These findings are not inconsistent. It is reasonable to assume
that Plaintiff is able to walk two miles in two hours, and the physical therapist’s finding
that Plaintiff is unable to stand for fifteen minutes to cook is even more restrictive than
were CNP Skiles’ findings. Compare AR at 1831 with 1840. Moreover, contrary to the
Commissioner’s argument and the ALJ’s interpretation, CNP Skiles found no
manipulative restrictions, and again this finding was consistent with the physical
therapist’s notes. Compare Doc. 20 at 6 with AR at 1841. Thus, the ALJ’s second
reason for according only partial weight to CNP Skiles’ opinions is again unsupported by
substantial evidence.
Attempting to salvage the ALJ’s decision, the Commissioner posits that CNP
Skiles’ opinions were inconsistent with other record evidence. See Doc. 20 at 6 (citing
AR at 1825, 1838).Yet the ALJ focused exclusively on Plaintiff’s physical therapy notes
in analyzing the “consistency” with the records. AR at 41. Therefore, “[a]ffirming this
post hoc effort to salvage the ALJ’s decision would require [me] to overstep [my]
institutional role and usurp essential functions committed in the first instance to the

part of the record the opinion was inconsistent with and it is this lack of specificity that the Tenth
Circuit found troubling. Id. at 647. Because the ALJ specified which records were allegedly
inconsistent in this case, Lewis is inapplicable.

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administrative process.” Robinson v. Barnhart, 366 F.3d 1078, 1084–85 (10th Cir.
2004). As such, the Commissioner’s post-hoc argument is rejected.
The Commissioner also correctly notes that “there is no requirement in the
regulations for direct correspondence between an RFC finding and a specific medical
opinion on the functional capacity in question.” Doc. 20 at 7 (quoting Chapo v. Astrue,
682 F.3d 1285, 1288 (10th Cir. 2012)). This Court is not finding that the ALJ erred
because he failed to match his RFC to a particular medical opinion. Rather, the error
lies in the fact that the ALJ rejected some of CNP Skiles’ findings without reasonable
cause to do so.
Finally, the Commissioner argues that “[a]n ALJ is entitled to rely on all of the
medical evidence, including that of nonexamining State agency medical and
psychological consultants,” Doc. 20 at 7 (citing SSR 96-6p, 1996 WL 374180 at *1-2;
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2008)), and that the ALJ was
therefore permitted to accept the findings of the state agency physicians who reviewed
the record and determined that Plaintiff was capable of sedentary work. Doc. 20 at 8.
The Court has no quibble with these statements in principle. To be sure, the ALJ may
decide on remand to compare the opinions of the state agency physicians with those of
CNP Skiles, as “[i]n appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources.” SSR 966p, 1996 WL 374180 at *3. Nevertheless, because the ALJ did not rely upon the state
agency physician findings to reject CNP Skiles’ opinions, the Commissioner’s argument
is without merit at this juncture.

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One last point bears mentioning. While an ALJ is not required to formalistically
and explicitly apply all of the regulatory factors to the opinions of medical sources, see
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), “the record must reflect that
the ALJ considered every factor in the weight calculation.” Andersen v. Astrue, 319
F. App’x 712, 718 (10th Cir. 2009) (citation omitted); 20 C.F.R. §§ 404.1527(c),
416.927(c) (“Unless we give a treating source's medical opinion controlling weight under
paragraph (c)(2) of this section, we consider all of the following factors in deciding the
weight we give to any medical opinion.”); see Oceguera v. Colvin, 658 F. App’x 370,
374 (10th Cir. 2016). The only regulatory factors the ALJ appears to have arguably
touched on in this case are consistency and specialization. On remand, the ALJ should
consider addressing additional factors, to further bolster his findings with regard to CNP
Skiles’ opinions. See Andersen, 319 F. App’x at 722 (“Although supportability might
prove determinative, that can only be decided after consideration of the other factors.”).
B) Plaintiff’s Other Claims of Error
Plaintiff also argues that there is a conflict between her RFC and one of the jobs
identified by the VE, and that the VE testimony regarding the number of available jobs is
unreliable. See Doc. 19 at 16-19. The Court will not address these issues at this time
“because they may be affected by the ALJ’s treatment of this case on remand.” Watkins
v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). However, the Court cautions Plaintiff
that she should bring these issues to the ALJ’s attention in the first instance, rather than
attempting to raise them for the first time on appeal.

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V.

Conclusion
The Court finds that Plaintiff’s motion to remand is well-taken and that this matter

should be remanded for reevaluation of the weight to be afforded to the opinion of her
treating CNP, as set forth above.
Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 19) is granted.
IT IS FURTHER ORDERED that a Final Order pursuant to Rule 58 of the Federal
Rules of Civil Procedure be entered remanding this matter to the Acting Commissioner
for further proceedings consistent with this opinion.

_______________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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