Jackson v. Social Security Administration

Filing 28

ORDER by Magistrate Judge Laura Fashing granting 22 Motion to Remand to Agency. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AMBER J. JACKSON,
Plaintiff,
v.

1:16-cv-00960-LF

NANCY A. BERRYHILL, 1 Acting Commissioner
of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Amber J. Jackson’s Motion to
Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with
Supporting Memorandum (Doc. 22), which was fully briefed on June 22, 2017. See Docs. 24,
26, 27. The parties consented to my entering final judgment in this case. Doc. 25. Having
meticulously reviewed the entire record and being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) failed to conduct a proper treating physician analysis of Dr.
E.B. Hall’s opinion. I therefore GRANT Ms. Jackson’s motion and remand this case to the
Commissioner for further proceedings consistent with this opinion.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final

decision 2 is supported by substantial evidence and whether the correct legal standards were

1

Nancy A. Berryhill, the new Acting Commissioner of Social Security, is automatically
substituted for her predecessor, Acting Commissioner Carolyn W. Colvin, as the defendant in
this suit. FED. R. CIV. P. 25(d).
2

The 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. §§ 404.981, 416.1481, as it is in this case.

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, 373 F.3d at 1118. “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 and brackets omitted).
The Court must meticulously review the entire record, but may neither reweigh the evidence nor
substitute its 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. A 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 the Court may not reweigh 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 ALJ’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)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or 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

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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), 416.905(a).
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation process, the claimant must show:
(1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the
Listings 3 of presumptively disabling impairments; or (4) the claimant is unable to perform his or
her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399
F.3d at 1260–61. If the claimant cannot show that his or her impairment meets or equals a
Listing but proves that he or she is unable to perform his or her “past relevant work,” 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 residual functional capacity
(“RFC”), age, education, and work experience. Id.
III.

Background and Procedural History
Ms. Jackson was born in 1980, was in special education throughout school due to a

learning disability, and dropped out in the tenth grade. AR 177, 218, 240, 317. 4 She has worked
at fast food restaurants, and as a babysitter for family members, but has not worked since 2012,
and none of her work reached the level of substantial gainful employment. AR 30, 212–13, 219.
Ms. Jackson filed applications for disability insurance benefits and supplemental security income
3

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

4

Document 16-1 is the sealed Administrative Record (“AR”). When citing to the record, the
Court cites to the AR’s internal pagination in the lower right-hand corner of each page, rather
than to the CM/ECF document number and page.
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on March 7, 2012 and April 7, 2012 respectively—alleging disability since January 1, 2012 due
to manic depression and bipolar disorder. AR 177–84, 209, 218. 5 The Social Security
Administration (“SSA”) denied her claims initially on August 13, 2012. AR 120–23. The SSA
denied her claims on reconsideration on June 6, 2013. AR 124–30. Ms. Jackson requested a
hearing before an ALJ. AR 131–32. On January 6, 2015, ALJ Barry O’Melinn held a hearing.
AR 37–57. ALJ O’Melinn issued his unfavorable decision on April 13, 2015. AR 11–36.
At step one, the ALJ found that Ms. Jackson had not engaged in substantial, gainful
activity since January 1, 2012, her alleged onset date. AR 16. At step two, the ALJ found that
Ms. Jackson suffered from the following severe impairments: “Organic Brain Syndrome,
Affective disorder; Anxiety Disorder; Attention Deficit Disorder; Attention Deficit Hyperactivity
Disorder; Personality Disorder; Borderline Intellectual Dysfunction; and, obstructive sleep
apnea.” Id. At step three, the ALJ found that none of Ms. Jackson’s impairments, alone or in
combination, met or medically equaled a Listing. AR 17–20. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Ms. Jackson’s RFC. AR 20–30. The ALJ
found Ms. Jackson had the RFC
to perform a full range of work at all exertional levels. Claimant can understand,
carry out, and remember simple instructions and make commensurate work
related decisions, respond appropriately to supervision, coworkers and work
situations, deal with routine changes in work setting, maintain concentration,
persistence, and pace for up to and including 2 hours at a time with normal breaks
throughout the work day. She must work in a low stress job with only occasional
decision making and only occasional changes in the work setting. She is suitable
for jobs involving work primarily with things and not people.
AR 20.
At step four, the ALJ concluded that Ms. Jackson did not have any past relevant work.
AR 30. The ALJ found Ms. Jackson not disabled at step five because she could perform jobs
5

Ms. Jackson’s applications originally alleged an onset date of March 15, 2009, but due to her
work from 2009 through 2011, her onset date was amended to 2012. See AR 177, 179, 224–25.
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that exist in significant numbers in the national economy—such as dishwasher, laundry worker,
and packer. AR 30–31. On May 28, 2015, Ms. Jackson requested review of the ALJ’s
unfavorable decision by the Appeals Council. AR 7–10. On July 26, 2016, the Appeals Council
denied the request for review. AR 1–6. Ms. Jackson timely filed her appeal to this Court on
August 25, 2016. Doc. 1. 6
IV.

Ms. Jackson’s Claims
Ms. Jackson raises several arguments for reversing and remanding this case: (1) the ALJ

failed to conduct a proper treating physician analysis of the opinion of treating psychiatrist Dr.
E.M. Hall; (2) the ALJ declined to give significant weight to the opinions of consulting
neuropsychologist Dr. Koltuska-Haskin for reasons that are contrary to the evidence and the law;
(3) the ALJ erred in rejecting without explanation parts of consultative psychologist Amy S.
DeBernardi’s opinion; (4) the ALJ erred in giving “significant weight” to treating nurse
practitioner Deborah Deetz’s statement that Ms. Jackson “needs to work” because this is an
opinion on an issue reserved to the Commissioner; (5) the ALJ failed to address some of the
moderate limitations noted in non-examining state agency doctor Scott Walker’s opinion; (6) the
ALJ erred in relying on the VE’s testimony at step five because Ms. Jackson’s limitation to
simple jobs is incompatible with jobs requiring a reasoning level 2. Because I remand based on
the ALJ’s failure to properly analyze the opinion of treating physician Dr. E.M. Hall, I do not
address the other alleged errors, which “may be affected by the ALJ’s treatment of this case on
remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

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A claimant has 60 days to file an appeal. The 60 days begins running five days after the
decision is mailed. 20 C.F.R. §§ 404.981, 416.1481; see also AR 2–3.
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V.

Analysis

Ms. Jackson argues that the ALJ erred by not conducting a proper treating physician
analysis of her treating psychiatrist Dr. E.M. Hall’s opinion. Doc. 22 at 17. She argues that at
the first step of the treating physician analysis, the ALJ did not give valid reasons for declining to
give Dr. Hall’s opinion controlling weight. Id. at 14–16. She also argues that the ALJ failed to
complete the second step of the treating physician analysis. Id. at 17. The Commissioner argues
that the ALJ gave valid reasons for declining to give Dr. Hall’s opinion controlling weight, and
that the ALJ “explained” why the opinion was not entitled to “any significant weight.” For the
reasons discussed below, I find that the ALJ failed to conduct a proper treating physician
analysis.
In analyzing whether a treating physician’s opinion is entitled to controlling weight, the
ALJ must perform a two-step process. “The initial determination the ALJ must make with
respect to a treating physician’s medical opinion is whether it is conclusive, i.e., is to be accorded
‘controlling weight,’ on the matter to which it relates.” Krauser v. Astrue, 638 F.3d 1324, 1330
(10th Cir. 2011) (quoting Watkins, 350 F.3d at 1300). In making this initial determination, the
ALJ must consider whether the opinion “is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is consistent with the other substantial evidence in the
record.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007) (citing 20 C.F.R.
§ 404.1527(d)(2)); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If the opinion
meets both criteria, the ALJ must give the treating physician’s opinion controlling weight. Id.
To give anything less than controlling weight, the ALJ must demonstrate with substantial
evidence that the opinion (1) is not “well‐supported by medically acceptable clinical and
laboratory diagnostic techniques,” or (2) is “inconsistent with other substantial evidence” in the

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record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (both effective Aug. 24, 2012 to March 26,
2017). “Under the regulations, the agency rulings, and our case law, an ALJ must ‘give good
reasons in [the] notice of determination or decision’ for the weight assigned to a treating
[source’s] opinion.” Watkins, 350 F.3d at 1300 (quoting 20 C.F.R. § 404.1527(d)(2) and citing
SSR 96-2p, 1996 WL 374188, at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)).
If the ALJ does not assign a treating source’s opinion controlling weight, step two of the
analysis requires the ALJ to apply the six factors listed in the regulations to determine whether to
reject a treating source’s opinion altogether, or to assign it some lesser weight:
1. Examining relationship: more weight is given to the opinion of a source
who has examined the claimant than to one who has not;
2. Treatment relationship: more weight is given to the opinion of a source
who has treated the claimant than to one who has not; more weight is
given to the opinion of a source who has treated the claimant for a long
time over several visits and who has extensive knowledge about the
claimant’s impairment(s);
3. Supportability: more weight is given to a medical source opinion which
is supported by relevant evidence (such as laboratory findings and medical
signs), and to opinions supported by good explanations;
4. Consistency: the more consistent the opinion is with the record as a
whole, the more weight it should be given;
5. Specialization: more weight is given to the opinion of a specialist giving
an opinion in the area of his/her specialty; and
6. Other factors: any other factors that tend to contradict or support an
opinion.
See 20 C.F.R. §§ 404.1527(c)(1)–(6), 416.927(c)(1)–(6) (both effective Aug. 24, 2012 to March
26, 2017); see also Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); Watkins, 350 F.3d
at 1301. As the first two factors make clear, even if an ALJ determines that a treating source
opinion is not entitled to controlling weight, the opinion still is entitled to deference. SSR 96‐2p,
1996 WL 374188, at *4 (July 2, 1996); see also Watkins 350 F.3d at 1300.
The ALJ need not explicitly consider and apply each and every factor to each opinion.
Oldham, 509 F.3d at 1258. “[N]ot every factor for weighing opinion evidence will apply in

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every case.” Id. (quoting SSR 06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006)). However, “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) (unpublished). In addition, the ALJ must “make
clear how much weight the opinion is being given (including whether it is being rejected
outright) and give good reasons, tied to the factors specified in the cited regulations for this
particular purpose, for the weight assigned.” Krauser, 638 F.3d at 1330 (citing Watkins, 350
F.3d at 1300–01).
In Ms. Jackson’s case, the ALJ wrote only a single paragraph explaining the weight he
assigned to Dr. Hall’s opinions:
As the claimant’s treating psychiatrist, Dr. Hall’s opinions are entitled to
controlling weight if I find his opinions to be well supported by the credible
evidence of record. However, Dr. Hall’s opinions are not well supported, and
therefore I cannot give controlling weight to his opinions regarding the presence
and severity of the claimant’s medical impairments in this matter. The doctor
apparently relied quite heavily on the subjective report of symptoms and
limitations provided by the claimant, and seemed to uncritically accept as true
most, if not all, of what the claimant reported. Yet, as explained elsewhere in this
decision, there exist good reasons for questioning the reliability of the claimant’s
subjective complaints.
AR 29.
As an initial matter, it is unclear to the Court that the ALJ applied the correct legal test in
the first step of the treating physician analysis. At step one, the ALJ is tasked with determining
whether the treating physician’s opinion is “is well supported by medically acceptable clinical
and laboratory diagnostic techniques” and “is consistent with the other substantial evidence in
the record.” Pisciotta, 500 F.3d at 1077. The ALJ appears to have conflated well-supported and
consistent, stating that it was his task to determine if the opinions were “well supported by the
credible evidence of record.” AR 29.

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In any event, the reason the ALJ gave for presumably rejecting Dr. Hall’s opinions is
legally insufficient and does not constitute substantial evidence. The sole reason the ALJ gave
for rejecting Dr. Hall’s opinions is his unsupported assertion that Dr. Hall “relied quite heavily
on the subjective report of symptoms and limitations provided by the claimant, and seemed to
uncritically accept as true most, if not all, of what the claimant reported.” AR 29. Reliance on
the subjective statements of a claimant is not a sufficient basis, standing alone, for disregarding a
medical opinion. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (internal citation,
quotation, and emphasis omitted) (“In choosing to reject the treating physician’s assessment, an
ALJ may not make speculative inferences from medical reports and may reject a treating
physician’s opinion outright only on the basis of contradictory medical evidence and not due to
his or her own credibility judgments, speculation or lay opinion.”); Langley, 373 F.3d at 1121
(“The ALJ also improperly rejected [the treating physician’s] opinion based upon his own
speculative conclusion that the report was based only on claimant’s subjective complaints and
was ‘an act of courtesy to a patient.’ The ALJ had no legal nor evidentiary basis for either of
these findings.”).
As in Langley, the ALJ failed to articulate any evidentiary basis for concluding that Dr.
Hall “uncritically” relied on Ms. Jackson’s subjective report of symptoms. Moreover, to the
extent Dr. Hall did rely on Ms. Jackson’s reports in forming an opinion regarding her mental
health, this is to be expected, and is not a sound reason for rejecting his conclusions. As the
Tenth Circuit has explained, “[t]he practice of psychology is necessarily dependent, at least in
part, on a patient’s subjective statements.” Thomas v. Barnhart, 147 F. App’x 755, 759 (10th
Cir. 2005) (unpublished). A psychological opinion need not be based solely on objective tests,
but “may rest either on observed signs and symptoms or on psychological tests.” Robinson v.

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Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). Thus, the ALJ’s reason for presumably
rejecting Dr. Hall’s opinion is legally insufficient.
The Commissioner asserts that an ALJ can discount a treating physician’s opinion “which
[is] based on the claimant’s subjective assertions rather than objective medical evidence.” Doc.
24 at 11 (citing White v. Barnhart, 287 F.3d 903, 907–08 (10th Cir. 2002)). White, however,
does not stand for the proposition that the ALJ can discount a treating physician’s opinion solely
for this reason. In White, the court held that the ALJ “set forth specific and legitimate reasons
for discounting the [treating physician’s] opinion.” Id. at 907. These reasons included a
discussion of the discrepancies between the treating physician’s functional assessment and exam
findings, a comparison of the detailed exam findings of a consulting doctor with those of the
treating physician, unexplained discrepancies in the treating physician’s opinions, and a
relatively short treating relationship. Id. at 907–08. Thus, the ALJ in White rejected the opinion
of the treating physician based on a myriad of well-supported and well-documented reasons. In
Ms. Jackson’s case, the ALJ appears to have rejected Dr. Hall’s opinion solely based on his
unsupported assertion that the opinion was based only on subjective reporting. This is
insufficient.
In addition, the ALJ entirely failed to conduct the second step of the treating physician
analysis. While the Commissioner claims that the ALJ declined to give Dr. Hall’s opinion “any
significant weight,” Doc. 24 at 10, the ALJ did not state what weight he accorded Dr. Hall’s
opinions, and did not weigh Dr. Hall’s opinion using the required regulatory factors. See 20
C.F.R. §§ 404.1527(c)(1)–(6), 416.927(c)(1)–(6) (both effective Aug. 24, 2012 to March 26,
2017). The ALJ’s failure to state what weight he gave Dr. Hall’s opinion requires remand:
Even if a treating opinion is not given controlling weight, it is still entitled to
deference; at the second step in the analysis, the ALJ must make clear how much

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weight the opinion is being given (including whether it is being rejected outright)
and give good reasons, tied to the factors specified in the cited regulations for this
particular purpose, for the weight assigned. If this is not done, a remand is
required.
Krauser, 638 F.3d at 1330 (internal citations omitted); see also Watkins, 350 F.3d at 1301 (“We
must remand because we cannot meaningfully review the ALJ”s determination absent findings
explaining the weight assigned to the treating physician's opinion.”).
VI.

Conclusion
The ALJ erred by failing to conduct a proper treating physician analysis of the opinion of

Dr. Hall. Ms. Jackson asks the Court to remand for an immediate award of benefits, or in the
alternative, to remand for rehearing. The Court finds that the better course is to remand for
rehearing. The Court remands so that the ALJ can properly assess Dr. Hall’s opinion. The Court
does not reach Ms. Jackson’s other claimed errors, as these “may be affected by the ALJ’s
treatment of this case on remand.” Watkins, 350 F.3d at 1299.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 22) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED, and
this case is REMANDED for further proceedings in accordance with this opinion.

________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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