Lopez v. Social Security Administration

Filing 31

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 1 Plaintiff's Motion to Reverse and Remand for Rehearing with Supporting Memorandum be GRANTED as outlined in the PF&RD. Objections to PF&RD due by 8/7/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLEY LOPEZ,
Plaintiff,
v.

No. CV 16-1000 CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Willey Lopez’s Motion To Reverse
and Remand for Rehearing with Supporting Memorandum, (Doc. 20), filed April 7, 2017;
Defendant’s Brief in Response to Plaintiff’s Motion to Reverse and Remand the
Agency’s Administrative Decision, (Doc. 23), (filed June 9, 2017); and Plaintiff’s Reply in
Support of Motion to Reverse and Remand for Rehearing, (Doc. 28), filed June 23,
2017.
In August, 2012, Mr. Lopez filed for supplemental security income (SSI) claiming
back problems, paranoia, anxiety, and learning problems prevented him from working.
(Administrative Record “AR” 69-70). Mr. Lopez’s claim was denied initially on March 6,
2013, (AR 81), and upon reconsideration on May 3, 2013, (AR 96). Mr. Lopez requested
a hearing before an administrative law judge (“ALJ”), (AR 110-12), which was held on
December 18, 2014, before ALJ Barry O’Melinn, (AR 40-68). Mr. Lopez and Cornelius
J. Ford, an impartial vocational expert (“VE”), testified at the hearing. (AR 40). Michael
Armstrong, Mr. Lopez’s attorney, represented Mr. Lopez at the hearing. (AR 40, 108).

On April 2, 2015, ALJ O’Melinn issued his decision finding that Mr. Lopez was
not disabled and therefore not entitled to SSI. (AR 16-34). Mr. Lopez requested review
by the Appeals Council, which denied Mr. Lopez’s request, making the ALJ’s decision
the Commissioner’s final decision for purposes of this appeal.
Mr. Lopez has appealed the ALJ’s decision, arguing the ALJ committed two
harmful errors in his analysis: first, by improperly rejecting the opinion of Carletta
Thompson, MD, and second, by improperly evaluating Mr. Lopez’s character for
truthfulness rather than Mr. Lopez’s symptoms. (Doc. 20 at 1). The Court has reviewed
the Motion, the Response, the Reply, and relevant law. Additionally, the Court has
meticulously reviewed the administrative record. Because the ALJ erred in his
consideration of Dr. Thompson’s opinion, the Court finds Mr. Lopez’s Motion should be
GRANTED.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.
1992). 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 v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). The ALJ’s failure to apply the correct legal standards or demonstrate
that he has done so is grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019

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(10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A
court should meticulously review the entire record but should neither re-weigh the
evidence nor substitute its judgment for the Commissioner’s. Langley, 373 F.3d at 1118;
Hamlin, 365 F.3d at 1214. A court’s review is limited to the Commissioner’s final
decision, 42 U.S.C. § 405(g), which is generally the ALJ’s decision, rather than the
Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ’s 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. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record 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 ALJ]’s findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process

For purposes of supplemental security income, a claimant establishes a disability
when 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

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less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (2015), 42 U.S.C. § 1382c(a)(3)(A)
(2004); 20 C.F.R. § 416.905(a). In order to determine whether a claimant is disabled,
the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920.
At the first four steps of the SEP, the claimant bears the burden of showing: (1)
she is not engaged in “substantial gainful activity”; (2) she 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 either (3) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i–iv); see Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant
cannot engage in past relevant work, the ALJ will proceed to step five of the evaluation
process. At step five the Commissioner must show the claimant is able to perform other
work in the national economy, considering the claimant’s RFC, age, education, and
work experience. Grogan, 399 F.3d at 1261.
III.

Background

Mr. Lopez applied for SSI claiming back problems, paranoia, anxiety, and
learning problems limited his ability to work. (AR 70). At step one, the ALJ found that
Mr. Lopez had not engaged in substantial gainful activity. (AR 21). At step two, the ALJ
determined Mr. Lopez had the following severe impairments: status post-lumbar fusion,
glaucoma, headaches, anxiety, and borderline intellectual functioning disorder. (AR 21).
At step three, the ALJ concluded Mr. Lopez’s impairments did not, alone or in
combination, meet or medically equal a listed impairment. (AR 22-24).
1

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

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Before proceeding to step four, the ALJ found Mr. Lopez has the RFC to: lift up to
20 pounds occasionally and lift and/or carry up to 10 pounds frequently; sit and stand
and/or walk up to six hours in an eight hour workday with normal breaks; occasionally
climb ramps or stairs, balance, stoop, kneel, crouch, or crawl; and never climb ladders,
ropes, or scaffolds. (AR 24). Further, according to the ALJ, Mr. Lopez is limited to
occupations requiring only occasional far visual acuity, but he can understand, carry
out, and remember simple instructions and make commensurate work-related
decisions; respond appropriately to supervision, co-workers, and usual work situations;
deal with routine changes in the work setting; and maintain concentration, persistence
or pace for up to two hours at a time with normal breaks throughout the day. (AR 2425). Finally, the ALJ considered Mr. Lopez “suitable for jobs involving work primarily
with things and not people.” (AR 24-25).
In developing Mr. Lopez’s RFC, the ALJ first discussed Mr. Lopez’s testimony.
(AR 25). Mr. Lopez testified in part that he experiences lower back pain following
surgery, has migraines twice per week, and that he gets nervous and paranoid around
large crowds. (AR 25). At this point, the ALJ identified two discrepancies in Mr. Lopez’s
testimony. First, the ALJ thought it contradictory that Mr. Lopez said he lost one job
because the company went out of business, when Mr. Lopez told an examiner he lost
his job due to his criminal record. (AR 25). Second, the ALJ compared Mr. Lopez’s
statements about his pain on three different reports. The ALJ thought it significant Mr.
Lopez stated slightly different things on November 5, 2012, and April 25, 2013. (AR 25).
The ALJ next examined a Third Party Function Report prepared by Jeanelle
Bennett, Mr. Lopez’s girlfriend. (AR 25-26). Ms. Bennett reported that Mr. Lopez cannot

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stand for long and is in constant pain when walking; that Mr. Lopez must change
positions when sitting or lying down about every 10 minutes; and that Mr. Lopez can lift
25 to 30 pounds. (AR 25-26). The ALJ gave Ms. Bennett’s observations little weight,
except for her observation of what Mr. Lopez can lift, because the ALJ considered them
inconsistent with the record as a whole, including objective medical evidence, Mr.
Lopez’s treatment, his daily activities, and his statements. (AR 26). The ALJ did not
identify what parts of the record Ms. Bennett’s statements were inconsistent with, nor
what medical evidence or other evidence Ms. Bennett contradicted.
The ALJ then exhaustively summarized medical evidence in the record. (AR 2630). In this section, the ALJ described the medical evidence but did not specifically
analyze or weigh the evidence. Id. Similarly, the ALJ assigned weight to various
opinions but did not fully explain why. For instance, the ALJ gave the state agency
opinions little weight, “since the record as a whole, including the objective medical
findings and the claimant’s medical treatment, establish[] that the claimant has physical
impairments that are more than slight abnormalities and that have resulted in more than
minimal effect on his ability to perform basic work activities.” (AR 26). The ALJ did not
specify what objective medical findings or aspects of treatment he relied on for this
statement. Later, the ALJ gave the State agency psychiatric evaluations “significant
weight” since they were “consistent with the record as a whole.” (AR 29).
Regarding Carletta Thompson, M.D., the ALJ detailed her findings and
evaluation of Mr. Lopez’s ability to do work. (AR 28). Ultimately, the ALJ gave Dr.
Thompson’s opinion little weight for three reasons: Dr. Thompson only saw Mr. Lopez
twice; Dr. Thompson supported her opinions with “very few objective medical findings”

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and appeared to rely on Mr. Lopez’s statements; and Dr. Thompson’s findings were
inconsistent with the record as a whole, including the objective medical evidence, Mr.
Lopez’s treatment, his statements, and his daily activities. (AR 28-29). Again, the ALJ
did not specify or elaborate as to how or why Dr. Thompson’s findings were inconsistent
with the record or Mr. Lopez’s treatment, statements, and daily activities.
Turning to other opinions and statements, the ALJ considered the opinions of
State agency psychological consultants, which he gave “significant weight . . . since
they are consistent with the record as a whole, including the objective clinical findings,
the claimant’s mental health treatment, and his daily activities.” (AR 29). The ALJ
assigned Mr. Lopez’s brother’s opinion “little weight” because it was also inconsistent
with the record as a whole. (AR 32). Finally, the ALJ concluded Mr. Lopez was not
credible. (AR 32). Throughout his decision, the ALJ highlighted inconsistencies in Mr.
Lopez’s statements, including his degree of pain, daily activities, and travel. (AR 25, 3132).
At step four, the ALJ determined Mr. Lopez is capable of performing his past
relevant work as a housekeeper. (AR 33). At the hearing, the VE testified that someone
with Mr. Lopez’s age, experience, and RFC could perform light, unskilled work as a
housekeeper. (AR 33). Based on that evidence, the ALJ held that Mr. Lopez was not
disabled and therefore not entitled to SSI. (AR 33-34).
IV.

Analysis

Mr. Lopez now argues that the ALJ erred in his “rejection” of Dr. Thompson’s
opinion and in his consideration of Mr. Lopez’s credibility. (Doc. 20 at 1). Specifically,
Mr. Lopez contends the ALJ’s reasons were illegitimate and too vague to permit

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meaningful review. (Doc. 20 at 10-12). Defendant responds broadly that the record
supports the ALJ’s reasons for assigning Dr. Thompson little weight and that the ALJ
appropriately considered Dr. Thompson’s opinion. (Doc. 23 at 9-13).
ALJs must evaluate and weigh every medical opinion in the record. 20 C.F.R. §
416.927(c); see also Social Security Ruling “SSR” 06-03p, 2006 WL 2329939 (Aug. 9,
2006). In deciding how much weight to give a source’s opinion, the ALJ considers the
length of the treatment relationship and frequency of examination, the nature and extent
of the treatment relationship, whether the opinion is supported by objective medical
evidence, and whether the opinion is consistent with the record as a whole. §
416.927(c)(1)-(6). An ALJ need not explicitly discuss every single factor. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Rather, the ALJ must only “give good
reasons” that are “sufficiently specific to make clear to any subsequent reviewers the
weight” he gave to the opinion “and the reasons for that weight.” SSR 96-2P, 1996 WL
374188 at *5 (July 2, 1996). Put differently, the reasons must be sufficiently specific to
permit meaningful review. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)
(“In the absence of ALJ findings supported by specific weighing of the evidence, we
cannot assess whether relevant evidence adequately supports the ALJ's conclusion that
appellant's impairments did not meet or equal any Listed Impairment, and whether he
applied the correct legal standards to arrive at that conclusion.”); Kepler v. Chater, 68
F.3d 387, 391-92 (10th Cir. 1995) (reversing where ALJ listed factors considered but not
specific evidence supporting conclusion).
An ALJ’s reasoning is not sufficiently specific if he merely states an opinion is
unsupported by or inconsistent with the medical evidence without further explanation.

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Langley, 373 F.3d at 1122-23; see Cagle v. Astrue, 266 Fed. Appx. 788, 792-793 (10th
Cir. 2008) (unpublished); Wise v. Barnhart, 129 Fed. Appx. 443, 447 (10th Cir. 2005)
(unpublished); King v. Barnhart, 114 Fed. Appx. 968, 972 (10th Cir. 2004)
(unpublished). In Langley, the ALJ rejected two medical opinions as unsupported by
medical evidence. Langley, 373 F.3d at 1120, 1122 (rejecting one doctor’s opinion as
“‘wholly unsupported’” by the record and a second doctor’s as “‘not supported’” by the
record). However, the ALJ did not explain how the opinions were unsupported or
inconsistent with the medical record. Id. The Tenth Circuit Court of Appeals reversed,
explaining the ALJ’s reasoning did not permit meaningful review. Id. at 1123 (“Because
the ALJ failed to explain or identify what the claimed inconsistencies were between Dr.
Williams’s opinion and the other substantial evidence in the record, his reasons for
rejecting that opinion are not ‘sufficiently specific’ to enable this court to meaningfully
review his findings.”).
In this case, Dr. Thompson evaluated Mr. Lopez twice and provided a Medical
Assessment of Ability to do Work-Related Activities (Physical) (the “Assessment”). (AR
517-529; 582). In both visits, Mr. Lopez reported low back pain with radiation, cramping,
and increased pain with prolonged sitting. (AR 517, 525). Both times, Dr. Thompson
examined Mr. Lopez and observed “abnormal taut bands” in Mr. Lopez’s lower back and
positive straight-leg tests. (AR 520, 528). In December, 2014, Dr. Thompson opined that
Mr. Lopez: cannot maintain physical efforts for long periods without a need to rest due
to pain; can only occasionally lift less than 10 pounds and frequently lift less than five
pounds; can stand or walk less than 2 hours in an 8-hour workday; can sit less than 4
hours in an 8-hour workday; has unlimited ability to push or pull; can handle and finger

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repetitively but is limited in reaching in all directions; can occasionally kneel and stoop;
and can never crouch or crawl. (AR 582). Finally, Dr. Thompson indicated Mr. Lopez is
affected by symptoms including pain. Id. The Assessment repeatedly leaves blank
space to answer the question “What are the medical findings supporting this opinion?”
Id. Dr. Thompson mostly left those spaces blank, answering only that Mr. Lopez’s lower
back disk issues affected his manipulative and postural limitations. (AR 582).
As outlined above, the ALJ gave Dr. Thompson’s opinion little weight for three
reasons: Dr. Thompson only saw Mr. Lopez twice; Dr. Thompson supported her
opinions with “very few objective medical findings” and appeared to rely on Mr. Lopez’s
statements, which the ALJ found not credible; and Dr. Thompson’s findings were
inconsistent with the record as a whole, including the objective medical evidence, Mr.
Lopez’s treatment, his statements, and his daily activities. (AR 28-29). The ALJ did not
specify what evidence Dr. Thompson’s opinion was inconsistent with. Rather, as he did
throughout his decision, the ALJ found Dr. Thompson’s record inconsistent with the
record as a whole. Effectively, the ALJ all but completely rejected Dr. Thompson’s
opinion, as the RFC does not reflect Dr. Thompson’s assessed limitations. (AR 24-25,
582).
First, the ALJ is allowed and even required to consider the length of the
treatment relationship. 20 C.F.R. § 416.927(c)(2)(i). But the ALJ may not reject an
opinion because of a short treatment relationship. In Chapo v. Astrue, the ALJ assigned
little weight to a medical opinion because the physician had only a two-month long
treatment relationship with the claimant. 682 F.3d 1285, 1291 (10th Cir. 2012). The
Tenth Circuit held an ALJ may not reject an opinion based solely on a short treatment

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relationship, since ALJs frequently rely on consultative examiners who have no
treatment relationship with claimants whatsoever. Id. Indeed, here the ALJ gave
significant weight to consultative examiners’ opinions. (AR 29-30). It would be
inconsistent with the holding in Chapo to allow the ALJ to discount Dr. Thompson’s
opinion because she only saw Mr. Lopez twice when the ALJ assigned significant
weight to examiners who only saw Mr. Lopez once.
Second, the ALJ was allowed and required to consider whether Dr. Thompson’s
opinion was supported by objective evidence. 20 C.F.R. § 416.927(c)(3). However, that
only partially explains the ALJ’s rejection of Dr. Thompson’s opinions. True, Dr.
Thompson did not support all of her opinions with medical findings. (AR 582). But Dr.
Thompson did support her opinions regarding Mr. Lopez’s manipulative and postural
limitations by citing Mr. Lopez’s back surgery. Id. The ALJ offered no explanation why
he rejected Dr. Thompson’s supported opinions, and failing to do so was error. See
Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (holding ALJ must discuss
significantly probative evidence he chooses to reject).
Finally, the ALJ’s last reason for rejecting Dr. Thompson’s opinion, that it was
inconsistent with the record, including Mr. Lopez’s statements, is too vague for the
Court to meaningfully review. As discussed, throughout his opinion the ALJ accepted or
rejected opinions because he found them either consistent or inconsistent with the
record as whole. Yet at no point did the ALJ specify how each opinion was consistent or
inconsistent with the record; the ALJ never supported his conclusions with specific
evidence. Here, as in Langley, the Court finds the ALJ’s reasoning too vague to
meaningfully review. See 373 F.3d at 1122-23; Lewis v. Berryhill, No. 16-5061, 2017

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WL 676502 at *2 (10th Cir. Feb. 21, 2017). This reason is particularly confusing given
the ALJ’s earlier reasoning that Dr. Thompson’s opinion was based on Mr. Lopez’s
subjective complaints. As Mr. Lopez points out, how can Dr. Thompson’s opinion be
both based on and inconsistent with Mr. Lopez’s statements? The Court recognizes the
possibility that Dr. Thompson’s opinion may be consistent with some of Mr. Lopez’s
statements and inconsistent with others, but the Court is left to speculate what portions
of the record the ALJ considered consistent and inconsistent with Mr. Lopez’s
statements.
Defendant argues that the ALJ’s reasoning is legally sound and supported by
substantial evidence, therefore “any arguable deficiency does not detract from the
substantial evidence supporting the decision.” (Doc. 23 at 9-13). Defendant cites
various parts of the record in support of her contentions that Dr. Thompson’s opinion is
not supported by her findings, objective medical evidence, or Mr. Lopez’s statements.
(AR 10-11). In so doing, Defendant accomplishes what the ALJ failed to do: tie
conclusions to specific evidence. The Court must review the ALJ’s decision based
solely on the reasons therein, Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.
2004), and in this case the ALJ did not even cite exhibits supporting his decision. See
Endriss v. Astrue, 506 Fed. Appx. 772, 775-76 (10th Cir. 2012). Defendant’s argument
is therefore unavailing.
V.

Conclusion

For the foregoing reasons, the Court finds that the ALJ failed to follow the correct
legal standards in rejecting Dr. Thompson’s opinion or support that rejection with
substantial evidence. Because the Court remands on this ground, the Court need not

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evaluate the ALJ’s assessment of Mr. Lopez’s credibility, as that assessment may be
mooted on remand. IT IS THEREFORE ORDERED that Mr. Lopez’s Motion To Reverse
and Remand for Rehearing with Supporting Memorandum, (Doc. 20), is GRANTED.
This case is hereby REMANDED to the Commissioner for further proceedings.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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