Hodge v. Social Security Administration

Filing 27

OPINION & ORDER by Magistrate Judge Kevin R. Sweazea granting 16 Motion to Remand to Agency (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NATASHA NICOLE HODGE,
Plaintiff,
v.
No. 1:16-cv-00974-KRS
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

OPINION AND ORDER GRANTING MOTION TO REVERSE OR
REMAND AND REMANDING TO AGENCY FOR
FURTHER PROCEEDINGS
Plaintiff Natasha Nicole Hodge seeks review of the Social Security Administration’s
denial of her application for supplemental security income. See 42 U.S.C. § 1382(c). Because
the Court agrees that the Administrative Law Judge (“ALJ”) erred in determining that Hodge
could perform some sedentary work, and, as a result, was not disabled, the Court GRANTS
Hodge’s motion and REMANDS this case to the agency for further proceedings commensurate
with this decision.
I.

BACKGROUND

Hodge alleged disability as of April 2, 2008, at age twenty seven, arising from bipolar
disorder, type 2 diabetes, and low back pain. [AR 253; 218]. Following a hearing,
Administrative Law Judge Eric Weiss denied Baker’s application for benefits. [AR 12-31; 3276]. At step three of the five-part framework 1 used to evaluate disability, the ALJ concluded that

1

The five-part sequential analysis is used to determine disability where, as here, a plaintiff’s application has been
denied both initially and on reconsideration. See 20 C.F.R. § 404.1520(a)(4)(i–v). The framework asks whether the
plaintiff (1) has engaged in “substantial gainful activity” (Step 1); (2) has a “severe medically determinable”
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Hodge’s lower back, right foot, and ankle problems, as well as major depressive and bipolar
disorders, impairments the ALJ determined were severe, did not meet or equal a listed
impairment the agency has determined to be presumptively disabling. [AR 18-19]. At steps four
and five, the ALJ determined that Hodge did not have any past relevant work experience, but
retained the residual functional capacity (“RFC”) to perform sedentary jobs so long as she only
has “occasional interaction with coworkers and supervisors.” 2 [AR 19-25]. Relying on the
testimony of a vocation expert, the ALJ concluded that sufficient jobs existed in the national
economy that matched Hodge’s age, education, work experience, and limitations, such as an
addresser and document specialist. [AR 25]. After the Appeals Council denied review of the
ALJ’s decision, Hodge filed the instant complaint in this Court and moved to reverse or remand
the agency adverse determination. [AR 1-4; Docs. 1, 16].
II. STANDARD OF REVIEW
This Court reviews the ALJ’s decision to determine whether it is supported by substantial
evidence and the ALJ applied the correct legal standards. See Hendron v. Colvin, 767 F.3d 951,
954 (10th Cir. 2014). If substantial evidence supports the conclusion that the plaintiff is not
disabled and the ALJ followed the law, the plaintiff is not entitled to relief. See Langley v.

“impairment” “or a combination of impairments” that either has lasted or is expected to last at least one year (Step
2); (3) has alleged impairments that meet or equal one of the presumptively disability impairments the agency has
listed (Step 3); (4) is unable to perform her “past relevant work”; (5) the retains the residual functional capacity to
perform work in the national economy in light of her age, education, and work experience 20 C.F.R. §
404.1520(a)(4)(i–v). The parties do not challenge the ALJ’s determination that Hodge has not engaged in substantial
gainful activity since her onset date, that she suffers from severe impairments at steps one and two respectively [AR
19-20]. For the sake of brevity, the Court does not further recount them.
2
The ALJ found various other physical limitations: (1) occasionally lifting, carrying, pushing, or pulling 10 pounds;
(2) standing and walking up to two hours, and siting no more than six hours in an 8 hour workday; (3) occasionally
stooping, crouching, kneeling, balancing, climbing ramps and stairs (excluding ladders, ropes, scaffolds); (4)
occasionally using right foot “in foot control operations and to push”; avoiding extreme cold, excessive vibration,
unprotected hazards, and unprotected heights. [AR 19-20]. Because the Court’s disposition turns on the mental
impairments and ultimately does not reach the merits of the Hodge’s challenge to physical component to the residual
functional capacity, the Court does not further discuss the limitations.
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Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term “substantial evidence” means that
which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 1118
(citation and internal quotation marks omitted). Even if the Court could reach the opposite
conclusion, the decision must stand if the record as a whole is not “overwhelmed by other
evidence” to the contrary or unless a “mere scintilla” supports it. Salazar v. Barnhart, 468 F.3d
615, 621 (10th Cir. 2006).
III. ANALYSIS
Hodge challenges the ALJ’s decision on two grounds: (1) the determination that Hodge
retained the residual functional capacity (“RFC”) to perform sedentary work; and (2) the ALJ’s
reliance on the testimony of the vocational expert in concluding there were jobs available that
Hodge could perform. Hodge’s first assertion encompasses both the ALJ’s rejection of alleged
physical and mental limitations as well as her legal objection to reasons the ALJ gave for not
incorporating into the RFC limitations from a psychologist consultant and the factual support for
the RFC determination. Because the Court determines that the ALJ improperly rejected the
agency consultant’s assessment of her mental impairments, and the record support the ALJ cited
as the bases is indicative of the overall lack substantial evidence supporting the RFC
determination, the Court does not specifically reach the physical limitations issue. The ALJ’s
error in determining the RFC at step four requires remand and necessarily invalidates the ALJ’s
step-five finding; therefore, the Court does not address Hodge’s contention regarding reliance on
the vocational expert.
A. RFC Determination
The centerpiece of Hodge’s challenge is the ALJ’s treatment of clinical psychologist
Sheri Spies’ mental limitations in fashioning the RFC. The Social Security Administration hired
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Dr. Spies to examine and evaluate Hodge because, in its view, existing mental health records
were insufficient to permit a determination. See SSR 96-6p, 1996 WL 374180 (explaining that
such “consultants are highly qualified . . . experts in the evaluation of the medical issues in
disability claims under the Act”). In that capacity, Dr. Spies opined that Hodge’s “ability to
maintain employment was markedly limited due to [her] symptoms of depression.” 3 [AR 21].
A “marked limitation,” in agency speak, is synonymous with a severe limitation in an area of
functioning. Dr. Spies assigned Hodge a GAF of 45, 4 “indicating serious symptoms.” [AR 21].
The ALJ concluded “Dr. Spies’ opinions regarding the claimant’s psychological abilities are not
well supported in the record” and that “these opinions appear to be founded by the claimant’s
self-reported symptoms.” [AR 22].
As with all medical opinions, the ALJ must consider the limitations an agency consultant
places on a plaintiff’s mental abilities, discuss the weight he assigns to the consultant’s
assessment, and give good reasons for that weight he chooses. See Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012) (citation omitted). In fulfilling this obligation, the ALJ
examines “the supportability of the opinion in the evidence”; “the consistency of the opinion
with the record as a whole, including other medical opinions, and any explanation for the opinion
provided by the . . . psychological consultant[.]” SSR 96-6p, 1996 WL 374180. The ALJ’s duty
in this regard encompasses two concomitant standards: (1) the legal hurdle the ALJ must clear

3

The ALJ also noted Dr. Spies findings that Hodge “had marked limitations in getting along with supervisors, coworkers, and/or the general public; marked limitation in understanding and following complex or detailed
instructions; moderate limitations in following simple instructions; and moderate limitations in responding
appropriately workplace hazards. [AR 21-22].
4
“GAF” refers to Global Assessment of Function, which is a numeric scale from 1 at the low end to 100 at the high
end that mental-healthcare practitioners use to subjectively rate the social, occupational, and psychological
functioning of an individual. The scale is included in the DSM IV, or American Psychiatric Association’s fourth
edition of the Diagnostic & Statistical Manual of Mental Disorders.
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by assigning a weight to a medical opinion as well as articulating a legitimate reason for doing
so; and (2) the ALJ’s separate factual obligation to of tie the reasons to record evidence.
1.

Legal attacks to the RFC

The ALJ did not specify what weight he gave the limitations Dr. Spies placed on Hodge’s
ability to work in formulating the RFC. Instead, the ALJ criticized Dr. Spies’ opinion for its
reliance on Hodge’s “subjective reports” as well as its support in the record. As legal error,
Hodge challenges the ALJ’s failure to assign an express weight to Dr. Spies’ mental evaluation
and the ALJ’s implicit rejection of Dr. Spies’ evaluation for the improper reason that it was
based, at least in part, on Hodge’s own accounts of her symptoms.
a.

Assignment of weight to a medical opinion

The agency concedes the ALJ did not formally reject Dr. Spies’ assessment or employ
the term weight with an appropriate adjective such as “little” or “limited.” [Doc. 22, p. 11].
True, the ALJ must consider all medical opinions and discuss the weight assigned; however, a
reviewing court may not hold the ALJ to “technical perfection.” Keyes-Zachary, 695 F.3d at
1167 (explaining “[a]gain, common sense, not technical perfection, is our guide”). The Tenth
Circuit’s commonsense mandate means that so long as the weight is implicit or the Court is
otherwise able to follow the ALJ’s reasoning, the ALJ’s failure to invoke certain phraseology
does not amount to reversible error. See Hendron, 767 F.3d at 957 (explaining that “where we
can follow the adjudicator’s reasoning in conducting our review . . . .merely technical omissions
in the ALJ's reasoning do not dictate reversal”) (citation omitted)); Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007) (reversal not required where the ALJ’s reasoning is implicit).
The ALJ’s failure to specifically reject or assign some lesser weight to Dr. Spies’
evaluation is not fatal here. It is obvious the ALJ either rejected Dr. Spies’ limitations altogether
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or gave them no significant weight. The Court can discern the ALJ’s reasoning from his
conclusion that Dr. Spies assessment is “not well supported in the record” and his later
determination to afford “great weight” to a non-examining phycologist the agency hired. [AR
21-22; 23]. Of course, the Court’s task is much simpler with a concrete expression from the ALJ
that leaves no room for doubt or interpretation. But demanding this type of perfection ignores
the very difficult job the ALJ performs in the administrative process and the necessary role the
ALJ serves. Because the ALJ’s rejection of Dr. Spies evaluation is implicit in the ALJ’s
decision, the Court rejects Hodge’s contrary argument and will not reverse on this technicality.
b. Legal sufficiency of the reason given
In examining Hodge on June 19, 2012, Dr. Spies elicited information from Hodge about
her mental health, made observations, and combined Hodge’s responses with the observations to
arrive at diagnostic impressions under the DSM, including a GAF of 40 and assessment that
Hodge’s ability to maintain employment was markedly limited. [AR 534-35]. The ALJ rejected
Dr. Spies’ evaluation of Hodge, in part, because it was based on what the ALJ characterized as
Hodge’s “subjective reports.” [AR 21-22]. Hodge contends it was entirely appropriate for Dr.
Spies to rely on her own accounts and legal error to reject Dr. Spies’ opinion on that basis.
In Schwarz v. Barnhart, 70 Fed. Appx. 512, 518 (10th Cir. 2003), the Tenth Circuit
explained that “[t]he accepted clinical technique for diagnosing such a[] [mental] impairment is
to assess the existence and severity of symptoms and signs identified by the American
Psychiatric Association in the DSM-IV,” which is “usually based on a patient’s subjective
reports and the psychologists own observations.” Id. In other words, evaluations “do not
produce laboratory-type results, instead requiring interpretation of the patient’s responses.” Id.

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(further highlighting that “[t]here is no ‘dipstick’ test for disabling depression”) (citing Sisco v.
United States Dep’t of Health & Human Servs., 10 F.3d 739, 744 (10th Cir. 1993)).
In this case, Dr. Spies followed the accepted technique and it was error for the ALJ to
reject Dr. Spies’ limitations because they had an element of subjective reporting. Dr. Spies
completed the DSM using Hodge’s responses and her personal observations, which included
among others, that Hodge’s “speech and thought process was tangential, her speech was
monotone, and her affect was flat” and Hodge “presented as depressed and cried throughout the
appointment”; her “thought content was negative”; immediate recall was good, but her delayed
recall was poor.” [AR 534-35]. Dr. Spies thus adhered to Barnhart’s standard. Rejecting Dr.
Spies opinion as based on Hodge’s reporting is inapposite to that analysis, and the Court remands
the matter to the ALJ to follow the correct legal standard.
2. Factual attacks to the RFC
From what the Court can surmise, the ALJ rejected Dr. Spies’ limitations as “not well
supported in the record” for the same reasons the ALJ gave for the overall RFC determination.
[AR 22-25]. Hodge asserts the four bases the ALJ relied on in dismissing her mental limitations,
discounting her credibility, and concluding she could perform sedentary work are unsupported
by substantial evidence: (1) Hodge had a normal mental status examination and no record of
attempted suicide or impatient treatment; (2) Hodge missed therapy appointments; (3) Hodge is
able to care for her special needs children; and (4) medication controls her symptoms.
Unlike the ALJ’s reliance on Hodge’s subjective reports as a basis for discounting Dr.
Spies’ assessment, a lack of support in the evidentiary record—to the extent it exists—is a
legally sufficient reason for rejecting a consultative examiner’s opinion, discounting a plaintiff’s
credibility, and deciding not to incorporate limitations into RFC. See SSR 96-6p, 1996 WL
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374180. The question the Court must, therefore, answer is whether substantial evidence in the
record bears out the ALJ’s reasons for rejecting Dr. Spies’ limitations specifically and the RFC
determination more generally. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
Although the Court may not reweigh the evidence, the Court must “meticulously examine the
record as a whole, including anything that may undercut or detract from the ALJ’s findings in
order to determine if the substantiality test has been met.” Id.
a. Mental status examinations
In crafting Hodge’s RFC, the ALJ correctly observed that Hodge “had a normal
appearance, good attention and concentration . . . normal thought content,” “good insight and
judgment, appropriate affect, and displayed eurythmic mood” at an appointment with Walsh
Counseling Services and “appeared fully alert, oriented, had fair judgment, and fair insight [at]
an appointment on November 26, 2013” with New Mexico Solutions. [AR 22; 23]. Although
Hodge suffers from bipolar disorder, a mental illness defined by extreme behavioral
fluctuations, 5 the ALJ took Hodge’s countenance as proof positive that any limitations were “out
of proportion to the objective evidence.” [AR 23]. The ALJ further discounted low functional
assessments because Hodge had “[n]ever undergone impatient treatment or attempted suicide.”
[AR 23]. Problematically, the ALJ’s observations appear to have been made in a vacuum,
without consideration of the other medical evidence that fairly detracted from the ALJ’s
determination.
Although Walsh attributed some normal features to Hodge, Hodge scored 40 on the GAF
in the same sitting, indicating, in the ALJ’s own words, “serious symptoms.” [AR 23; 716]. If
5

See Jaax v. Colvin, 2015 U.S. Dist. LEXIS 8435, *17 (W.D. Mo. Jan. 26, 2015) (citation omitted) (explaining that
“[b]ipolar disorder—sometimes called manic-depressive disorder—is associated with mood swings that range from
the lows of depression to the highs of mania”)
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the ALJ meant to say Walsh’s contemporaneous mental status examination is inconsistent with
the low GAF assigned, the ALJ could have a point, but he does not further explain his reasoning.
Cf. McFall v. Colvin, 2016 U.S. Dist. LEXIS 56127, *37 (W.D.N.Y. Apr. 26, 2016) (“The ALJ
also rejected certain GAF scores solely because she perceived them as being inconsistent with
the results of contemporaneous mental status examinations . . . without explaining her premise
that a low GAF score is necessarily incompatible with a normal mental status examination”). In
other words, some level of stability is necessary to allow testing to occur in the first place, and
outward normalcy may not be irreconcilable with a finding of significant mental illness,
especially where bipolar disorder is concerned.
To be fair, suicide attempts and a record of hospitalization would support a low GAF and
are often criteria used to determine whether an impairment is sufficiently severe to meet or equal
a presumptively disabling agency listing. Contrary to the ALJ’s implication, however, suicide
and inpatient treatment are not necessary conditions to a low functional assessment or
determination of disability. In fact, to indulge this logic could create perverse incentives or
encourage self-harm. In any event, the longitudinal GAF scores are consistent notwithstanding
the ALJ’s observation of normal personality attributes, and no hospitalization or evidence of
attempted suicide: 45 on August 24, 2012; 45 on December 16, 2012; 40 on June 19, 2012; and
40 on November 11, 2012. [AR 495; 502; 536; 716].
Likewise, the ALJ’s focus on a single status exam from New Mexico Solutions ignores
dozens of other counseling records spanning 2012-2013. [AR 489-502; 640-670]. Those
documents, a majority of which are from New Mexico Solutions, almost universally show Hodge
as having a depressed affect, and at times, presenting with a depressed mood, episodic
tearfulness, blunted flat affect, anxious affect and mood, slowed speech, pressured speech,
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euphoric mood, “loosening of associations” in her thought processes, phobias, fare insight,
minimal insight. [AR 489-502; 640-670]. Of the providers that have examined Hodge, all have
diagnosed her with severe mental impairments, including severe depression and bipolar disorder,
scored her GAF between 40-45, and observed various combinations of the symptoms above that
are consistent with the low GAF.
The ALJ’s determination does not meet the substantiality test. Hodge’s seemingly
normal attributes were not considered in the context of the entire record, which the Court
concludes is error. Although it is the province of the ALJ to resolve conflicts amongst the
evidence, see Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016), the ALJ was not
permitted to choose portions of the record favorable to its RFC determination without so much as
mentioning the unfavorable portions of those very same documents relied upon. See Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (holding that “[a]n ALJ is not entitled to pick and
choose through an uncontradicted medical opinion, taking only the parts that are favorable to a
finding of nondisability”). The Court therefore remands the case for the agency to fairly and
fully consider the medical evidence.
b. Childcare and efficacy of medication
In the ALJ’s view, Hodge “described daily activities that are not limited to extent one
would expect given the complaints of disabling symptoms and limitation” as exemplified by her
testimony at the hearing that “she cares for her two special needs children.” [AR 23]. The ALJ
also based the RFC on Hodge’s putative testimony that Paxil controlled her symptoms. [AR 23].
The Court recognizes that caring for children with special needs may well be antithetical to a
finding of disability. Certainly too, bipolar disorder and depression may be effectively treated

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with medication. The ALJ’s recollection of the evidence presented, however, does not square
with Hodge’s actual testimony during the proceedings.
Hodge testified that she struggles with her childcare obligations; “has had a lot of trouble
with Child Protective Services”; and that her son had been removed from the home by “CPS.”
Moreover, Hodge explained she had help “through a program that provided” “respite” and her
“grandmother always helps with [her] kids too.” [AR 53; 54]. Hodge testified that Paxil, a drug
she does not take, helped her depression, but this single statement ignores later testimony that
she needed better medication to help control depression and allow her to get out of bed. [AR 44].
Counseling records also confirm that Hodge presented with depressed and anxious affect,
pressured and slowed speech, and dissociative thinking while compliant with medication. [AR
AR 489-502; 640-70]. As above, the ALJ’s characterization of the testimony is unsupported by
the record; on remand, the agency should fully consider the entirety of the evidence.
c. Attendance record at appointments
Hodge “no called and no showed” to approximately six therapy sessions at either New
Mexico Solutions or River Valley Behavior Health between 2012 and 2013. [AR 495; 502; 536;
716]. The ALJ identified four such instances, two of which are actually the same date, and drew
the inference that Hodge’s symptoms “may not have been as serious as has been alleged in
connection with this application and appeal.” [AR 23]. In point of law, the ALJ’s reasoning is
sound. See, e.g., Romero v. Astrue, 242 Fed. Appx. 536, 543 (10th Cir. 2007) (considering
missed appointments as one factor supporting the ALJ’s adverse credibility finding); Baca v.
Berryhill, 2017 U.S. Dist. LEXIS 49066, *16 (D.N.M. Mar. 31, 2017) (same).
The Court is not convinced that the modest amount of missed appointments supports
disregarding Hodge’s assessed mental limitations. In terms of the substantiality test, the Court
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has examined the portions of the record that fairly detract from the ALJ’s observation.
Unaddressed by the ALJ are approximately eighteen therapy sessions that Hodge did make.
Thus, the counseling records establish Hodge attended the majority of sessions. Moreover,
Hodge testified that her depression forces her to “stay in the house” and prevents her from
“mak[ing] it to appointments.” [AR 44]. It is obvious the ALJ did not believe that Hodge’s
mental impairments were limiting no matter what source the limitations came from—agency
consultant, psychiatrist, counselor, or Hodge. However, the ALJ was required to consider the
whole record. On remand, the agency must examine the full picture before fashioning a residual
functional capacity that discounts the limitations that the examining providers placed on her
ability to work and that Hodge herself testified to.
IV. CONCLUSION
For the reasons stated above, the Court concludes that the ALJ erred in determining that
Hodge retained the residual function capacity to permit sedentary work. IT IS, THEREFORE,
ORDERED that Plaintiff’s motion to reverse and remand is GRANTED [Doc. 16] and the
matter is REMANDED to the agency for proceedings consistent with this decision.

_________________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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