Call v. Social Security Administration

Filing 25

ORDER granting in part 20 Motion to Remand to Agency by Magistrate Judge Carmen E. Garza. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JILL ELIZABETH CALL,
Plaintiff,
v.

No. CV 16-1145 CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Jill Elizabeth Call’s Motion to
Reverse and Remand to Agency for Rehearing, With Supporting Memorandum (the
“Motion”), (Doc. 20), filed June 15, 2017; Defendant Commissioner Nancy A. Berryhill’s
Brief in Response to Plaintiff’s Motion to Reverse and Remand the Agency’s
Administrative Decision (the “Response”), (Doc. 22), filed August 11, 2017; and Ms.
Call’s Plaintiff’s Reply (the “Reply”), (Doc. 23), filed August 28, 2017.
Ms. Call filed an application for disability insurance benefits on December 5,
2012, alleging disability beginning January 30, 2010. (Administrative Record “AR” 12).
Ms. Call claimed she was limited in her ability to work due to: congestive heart failure,
depression, a herniated disc in her back, arthritis in her spine, sciatica in her left leg,
thyroid disease, and anxiety. (AR 180). Ms. Call’s application was denied initially on
May 3, 2013, and upon reconsideration on November 6, 2013. (AR 12). Ms. Call
requested a hearing before an Administrative Law Judge (“ALJ”), which was held on
March 19, 2015, before ALJ Eric Weiss, Jr. (AR 25). At the hearing, Ms. Call was

represented by attorney Feliz M. Martone, and Ms. Call and Sandra Trost, an impartial
vocational expert (“VE”), testified. (AR 27-64).
On April 27, 2015, ALJ Weiss issued his decision, finding Ms. Call not disabled at
any time between her alleged disability onset date through the date of the decision. (AR
19-20). Ms. Call requested review by the Appeals Council, (AR 6-8), which was denied,
(AR 1-5), making the ALJ’s decision the Commissioner’s final decision for purposes of
this appeal.
In her Motion, Ms. Call now argues that the ALJ erred by failing to properly: (1)
evaluate Ms. Call’s impairments at step three; (2) consider Ms. Call’s non-severe
impairments; (3) consider Ms. Call’s activities of daily living, social functioning, and
concentration, persistence, and pace; (4) consider the medical opinions of State Agency
consultative examiner John Owen, Ph.D.; and (5) consider the physical and mental
demands of Ms. Call’s past relevant work. (Doc. 20 at 7-15). The Court has reviewed
the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has
meticulously reviewed the administrative record. Because the ALJ erred in his
consideration of Ms. Call’s non-severe impairments and in the evaluation of Dr. Owen’s
opinions, the Court finds that Plaintiff’s motion should be GRANTED IN PART.
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

2

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 Commissioner’s “failure to apply the correct legal standards, or
show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d
1017, 1019 (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 reweigh 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

3

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 disability insurance benefits, 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
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. § 404.1505(a) (2012). 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. § 404.1520 (2012).
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. § 404.1520(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 residual functional capacity
(“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

1

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

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III.

Background

Ms. Call applied for disability insurance benefits due to: congestive heart failure,
depression, a herniated disc in her back, arthritis in her spine, sciatica in her left leg,
thyroid disease, and anxiety. (AR 180). At step one, the ALJ determined that Ms. Call
had not engaged in substantial gainful activity since January 30, 2010, the alleged onset
date. (AR 14).
At step two, the ALJ concluded that Ms. Call has the following severe
impairments: nonischemic cardiomyopathy, mitral regurgitation, coronary artery
disease, fibromyalgia, osteoarthritis of the lumbar spine and left shoulder, carpal tunnel
syndrome, Palmar flexor tenosynovitis, and obstructive sleep apnea. (AR 14). The ALJ
further found that Ms. Call has the following non-severe impairments: subpatellar
crepitance of the knees bilaterally, hyperlipidemia, gastroesophageal reflux disease,
diabetes mellitus, hypertension, obesity, depressive disorder, and anxiety disorder. Id.
The ALJ stated that Ms. Call’s non-severe impairments “have either improved within
one year or are mild to moderate in nature,” and that they “are amenable to control by
adherence to recommended medical treatment and the proper administration of
prescribed medications.” Id. Regarding obesity, the ALJ stated that, at least one time
during the alleged period of disability, Ms. Call’s height and weight resulted in a BMI that
placed her in a category of obesity, and that the ALJ accounted for the impacts obesity
may have on her co-existing impairments. (AR 15).
The ALJ next found that Ms. Call’s mental impairments “do not cause more than
minimal limitation in [her] ability to perform basic mental work activities and are
therefore nonsevere.” Id. In support of this finding, the ALJ considered the mental status

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examination conducted by Dr. Owen in April 2013. The ALJ assigned great weight to Dr.
Owen’s opinions that Ms. Call has no limitations or mild limitations in almost every area
of mental abilities. The ALJ reasoned that these opinions are consistent with the record
and are “based on thorough and precise examination grounded on trusted objective
techniques.” Id. (citing AR 323-26). The ALJ gave little to no weight to Dr. Owen’s
opinions that Ms. Call has moderate limitations in her abilities to attend, concentrate,
and persist at tasks, stating “there is little to no indication of [Ms. Call] having difficulties
in these areas.” Id. The ALJ next considered the four functional areas for evaluating
mental disorders as set out in § 12.00C of 20 C.F.R., Part 404, Subpart P, Appendix A.
Id. at 16. The ALJ found that Ms. Call has no limitations in activities of daily living, mild
limitation in social functioning, and in concentration, persistence, and pace, and no
episodes of decompensation for an extended duration. Therefore, the ALJ found that
Ms. Call’s mental impairments are non-severe. Id.
At step three, the ALJ determined that Ms. Call does not have an impairment,
solely or in combination, that meets or equals one of the listed impairments in 20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526. (AR 16-17). At step four, the ALJ found that
Ms. Call has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b). (AR
17). The ALJ found that Ms. Call can lift 20 pounds occasionally, lift or carry 10 pounds
frequently (and push and pull the same), walk or stand for a total of 6 hours in an 8-hour
workday, and sit for a total of 6 hours in an 8-hour workday. He further found that Ms.
Call can climb ramps and stairs occasionally, but can never climb ladders, ropes, or
scaffolds. Finally, the ALJ found that Ms. Call can occasionally stoop, crouch, kneel,
and crawl, and can frequently engage in handling and fingering. Id.

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In formulating Ms. Call’s RFC, the ALJ stated he considered Ms. Call’s symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with
objective medical and other evidence, as required by 20 C.F.R. § 404.1529 and Social
Security Rulings (“SSRs”) 96-4p and 96-7p. Id. The ALJ also stated he considered
opinion evidence in accordance with 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 966p, and 06-3p. Id. The ALJ noted Ms. Call testified about her symptoms, and stated
that, while Ms. Call’s earning history “tends to lend some degree of credibility to her
claim,” the medical evidence does not support the intensity of her reported symptoms
and limitations. Id. The ALJ reasoned that other evidence tends to subtract from Ms.
Call’s overall credibility, such as: the fact that she continues to smoke tobacco despite
her documented history of heart disease; no history of mental health treatment or
hospitalizations; failure to submit a function report detailing her ability to perform daily
activities; her testimony that she lived independently approximately one year prior to the
hearing; evidence she is not compliant with CPAP use for sleep apnea and her failure to
follow up for sleep apnea since early 2014; and no statement from a treating physician
supporting her allegation of total disability. Id. at 17-18.
In considering the medical evidence, the ALJ noted Ms. Call’s treating physician,
Dr. Rosa Galvez, made normal findings during neurological and respiratory
examinations in September and December 2014, found that Ms. Call’s BMI was
consistent with her diagnosis of obesity, and found a positive Tinel’s sign in Ms. Call’s
left wrist which is consistent with carpal tunnel syndrome. (AR 18). The ALJ stated the
evidence reflects that Ms. Call has been treated conservatively with injections for the
carpal tunnel. Id. In addition, the ALJ noted that Ms. Call was examined for

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musculoskeletal pain in December 2014 at the University of New Mexico Health system,
that her respiratory and cardiovascular examinations there were normal, and that she
exhibited numbness in her upper extremities consistent with her diagnosis of carpal
tunnel. Id. The ALJ stated that “a full muskuloskeletal examination revealed no distinct
nodular changes of osteoarthritis, and no changes in motor or sensory functioning were
observed.” Id. The ALJ next considered a rheumatology consultation Ms. Call
underwent in November 2014, where she had a slightly reduced range of motion in her
neck; tender points and positive Tinel’s signs confirmed her diagnoses of fibromyalgia
and carpal tunnel; respiratory and cardiovascular examinations were normal; no
sensory or motor deficits were noted; deep tendon reflexes were full and symmetrical;
her gait was normal; imaging of her cervical spine and lumbar spine revealed only mild
degenerative changes with no spinal stenosis; and lab studies were negative for
rheumatoid factor. Id.
Regarding Ms. Call’s heart disease, the ALJ noted that studies from July 2013
revealed abnormal blood pressure in response to exercise, which suggested an
increased risk for adverse events. Id. The ALJ further noted that during exercise testing
Ms. Call demonstrated an abnormal end tidal partial pressure CO2 at rest, with normal
increase during exercise, and slightly abnormal VE/VC02 slope, but did not have
exercise induced VT or angina. Id. The ALJ stated that a transthoracic echocardiogram
from August 204 revealed an LV ejection fraction of 37% with mild to moderate global
hypokinesis of the left ventricle, but that these tests revealed no signs or symptoms of
heart failure and that Ms. Call was noted to be on an appropriate regimen of medication
and her CCF class 2 angina was found to be “stable.” Id. at 18-19.

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The ALJ stated he accorded great weight to the opinion of the “State Agency
examiner,” because “it was accompanied by a detailed explanation, after a full review of
the entirety of the medical evidence,” the “medical evidence of record substantiates the
agency examiner’s findings, and . . . the examiner is certainly well-versed in the
assessment of functionality as it pertains to the disability functions of the Social Security
Act.” Id. at 19. However, the ALJ did not state which State Agency examiner’s opinion
he was according great weight, and cited to (AR 75-84) which contains a Psychiatric
Review Technique by Paul Cherry, Ph.D., and a Physical Mental RFC Assessment by
Elva Montoya, M.D. Id.
The ALJ next determined that Ms. Call is capable of performing her past relevant
work as an administrative clerk and general manager of a telephone facility. Id. The ALJ
stated his conclusion is supported by the VE’s testimony and is based on comparing
Ms. Call’s RFC with the demands of her past relevant work. Id. Because Ms. Call could
perform her past relevant work as it is actually and generally performed, the ALJ found
that Ms. Call had not been disabled at any time between her alleged onset date and the
date of the ALJ’s decision. Id.
IV.

Analysis

In her Motion, Ms. Call argues that the ALJ erred by failing to properly: (1)
evaluate Ms. Call’s impairments under the listings at step three; (2) consider Ms. Call’s
non-severe impairments; (3) consider Ms. Call’s activities of daily living, social
functioning, and concentration, persistence, and pace; (4) consider the medical opinions
of Dr. Owen; and (5) consider the physical and mental demands of Ms. Call’s past
relevant work. (Doc. 20 at 7-15). As set forth below, the Court finds that any error by the

9

ALJ at steps two and three in this case were harmless, but the ALJ erred at step four by
failing to properly consider Ms. Call’s non-severe impairments and Dr. Owen’s opinions.
1. The ALJ’s Step Three Findings
At step three of the sequential evaluation process, the ALJ must determine
whether the impairments found to be severe at step two meet or equal a listed
impairment; if so then the claimant qualifies for disability benefits. See Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant has
one or more impairments, the ALJ must determine “whether the combination of [the]
impairments is medically equal to any listed impairment.” 20 C.F.R. § 404.1526(b). In
making this step three determination, the ALJ must make findings supported by specific
weighing of the evidence. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)
(explaining that under 42 U.S.C. § 405(b)(1) an ALJ is required to discuss the evidence
and explain why a claimant is not disabled at step three). “[I]n addition to discussing the
evidence supporting his decision, the ALJ also must discuss the uncontroverted
evidence he chooses not to rely upon, as well as significantly probative evidence he
rejects.” Id. at 1010 (citation omitted). However, it is the claimant’s burden at step three
to demonstrate which listings her impairments meet or equal, and an ALJ’s error at this
step is harmless if the claimant fails to meet this burden. See Garrison v. Colvin, 564
Fed. Appx. 374, 377 (10th Cir. 2014) (unpublished) (finding no error by the ALJ at step
three where the claimant failed to state which listing or listings apply to his
impairments).
Here, the ALJ stated at step three that he considered all of Ms. Call’s
impairments individually and in combination, but that he “can find no evidence that the

10

combined clinical findings from such impairments reach the level of severity
contemplated in the Listings.” (AR 16). The ALJ further stated “[s]ince the claimant
shows no evidence of an impairment that meets or equals the criteria of a listed
impairment or of a combination of impairments equivalent in severity (not in mere
numbers) to a listed impairment, disability cannot be established on the medical facts
alone.” (AR 16-17) (citing 20 C.F.R. § 404.1520(d)). Therefore, the ALJ concluded that
Ms. Call does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. Id.
In his step three analysis, the ALJ did not provide specific findings to explain his
decision that Ms. Call’s severe impairments do not meet or equal any of the listings. The
Tenth Circuit in Clifton held that a conclusory step three finding such as the one here
was in error because “[i]n 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 [the claimant’s] impairments did not meet or equal any Listed
Impairment, and whether he applied the correct legal standards to arrive at that
conclusion.” Clifton, 79 F.3d at 1009; see also Dye v. Barnhart, 180 Fed. Appx. 27, 29,
(10th Cir. 2006) (unpublished) (holding that the ALJ’s discussion of the claimant’s
cardiac impairment was too conclusory and, therefore, beyond meaningful judicial
review because it was “limited to a one sentence conclusion without any discussion of
the medical evidence”). The Commissioner contends that the ALJ’s step three decision
is supported by the State Agency consultants who also concluded that Ms. Call’s
impairments do not meet or equal any of the listings. (Doc. 22 at 9). However, this is an
impermissible post hoc rationalization because the ALJ did not state that he relied on

11

this evidence in making his step three finding. See Robinson v. Barnhart, 366 F.3d
1078, 1084 (10th Cir. 2004) (explaining that reviewing courts may evaluate an ALJ’s
decision “based solely on the reasons stated in the decision,” and that it would be
improper for a reviewing court or the Commissioner to “supply[] possible reasons” for an
ALJ’s decision after the fact) (citation omitted).
Despite the ALJ’s failure to discuss the evidence or his reasons for finding that
Ms. Call is not disabled at step three, Ms. Call does not state which of the listings her
impairments meet or equal. Ms. Call “has the burden at step three of demonstrating,
through medical evidence, that [her] impairments meet all of the specified medical
criteria contained in a particular listing.” Riddle v. Halter, 10 Fed. Appx. 665, 666-67
(10th Cir. 2001) (unpublished) (citation omitted). By failing to allege what listing or
listings her impairments meet or equal, Ms. Call does not meet this burden and fails to
show how the ALJ’s error prejudiced her. See Garrison, 564 Fed. Appx. at 377 (finding
no error by the ALJ at step three where the claimant failed to state which listing or
listings apply to his impairments); Roberts v. Colvin, No. 1:13-cv-29-PMW, 2014 WL
949870, at *3 (D. Utah March 11, 2014) (unpublished) (finding that the ALJ’s error at
step three was harmless because the claimant failed to argue that his impairments meet
or equal any particular listing and, thus, the claimant “failed to demonstrate how any
such error prejudiced him”); Drummond v. Astrue, 895 F. Supp. 2d 1117, 1126 (D. Kan.
2012) (“Even assuming that . . . the ALJ failed to provide adequate analysis or
explanation regarding his step three finding and that the finding is unsupported, [the
claimant] has not alleged that he was prejudiced by the error, because he does not say

12

what Listing, if any, his condition meets or medically equals.”). Therefore, the Court
finds that the ALJ’s error at step three is harmless.
2. The ALJ’s Consideration of Ms. Call’s Non-Severe Impairments
Ms. Call next contends that the ALJ failed to properly consider her non-severe
impairments. (Doc. 20 at 7-9). Because the ALJ found that Ms. Call’s non-severe
impairments were mild to moderate in nature, Ms. Call contends that he “should have
found them to be severe, or at the very least consider[ed] their effects in the RFC.”
(Doc. 20 at 7-8). In response, the Commissioner notes that the ALJ stated that he
considered the limiting effects of all of Ms. Call’s impairments, including her non-severe
impairments, in determining her RFC. (Doc. 22 at 4). The Commissioner also argues
the ALJ relied on evidence in the record that showed Ms. Call could control her nonsevere impairments by adherence to recommended medical treatment and the use of
prescribed medications. Id. at 5-6.
At step two, the ALJ considers a claimant’s impairments to determine whether
they are severe, which is defined as an impairment that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). At this
step, the claimant’s burden is de minimus, and “only those claimants with slight
abnormalities that do not significantly limit any basic work activity can be denied
benefits without undertaking the subsequent steps of the sequential evaluation
process.” Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (citations omitted).
The claimant need only establish—and the ALJ need only find—one severe impairment
to avoid a denial of benefits at step two. See Oldham v. Astrue, 509 F.3d 1254, 1256-67
(10th Cir. 2007). Therefore, “the failure to find a particular impairment severe at step two

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is not reversible error when the ALJ finds at least one other impairment is severe.”
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016).
Here, the ALJ concluded at step two that Ms. Call has several severe
impairments (nonischemic cardiomyopathy, mitral regurgitation, coronary artery
disease, fibromyalgia, osteoarthritis of the lumbar spine and left shoulder, carpal tunnel
syndrome, Palmar flexor tenosynovitis, and obstructive sleep apnea), and several nonsevere impairments (subpatellar crepitance of the knees bilaterally, hyperlipidemia,
gastroesophageal reflux disease, diabetes mellitus, hypertension, obesity, depressive
disorder, and anxiety disorder). (AR 14-15). Because the ALJ found that Ms. Call has at
least one severe impairment, and proceeded in the sequential evaluation process, any
error by the ALJ in finding these additional impairments non-severe at step two is
harmless.
Nevertheless, the ALJ was still required to consider the limiting effects of all of
Ms. Call’s impairments—including those that are not severe—in determining her RFC at
step four. 20 C.F.R. § 404.1545(e) (explaining that an ALJ must consider the limiting
effects of non-severe impairments in determining a claimant’s RFC); SSR 96-8p,1996
WL 374184, at *5 (July 2, 1996) (“In assessing RFC, the adjudicator must consider
limitations and restrictions imposed by all of an individual's impairments, even those that
are not ‘severe.’ While a ‘not severe’ impairment standing alone may not significantly
limit an individual's ability to do basic work activities, it may—when considered with
limitations or restrictions due to other impairments—be critical to the outcome of a
claim.”); see Hill v. Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (explaining that an
ALJ’s conclusion that a claimant’s impairments are not severe at step two “does not

14

mean the omitted impairment simply disappears from his analysis,” and that “[i]n
determining the claimant’s RFC, the ALJ is required to consider the effect of all of the
claimant’s medically determinable impairments, both those he deems severe and those
not severe”).
At step four the ALJ did not discuss any of Ms. Call’s non-severe impairments
other than noting that she has no history of mental health treatment or hospitalizations
despite her reported mental health conditions. (AR 17-18). The Commissioner argues
that the Court should take the ALJ at his word when he states that he considered the
limiting effects of all of Ms. Call’s impairments in determining her RFC. (Doc. 22 at 4)
(citing AR 15). However, the record contains evidence that Ms. Call was being treated
for depression, anxiety, and diabetes, (AR 226-27, 354, 491), and she testified that her
depression and anxiety affect her ability to work and that her diabetes causes blurred
vision, neuropathy in her feet, and numbness and burning in her toes, (AR 37-38, 42-44,
54). The ALJ did not address this evidence, and did not provide an explanation or
support from the record for rejecting it, which is legal error. See SSR 96-8p, at *7 (the
ALJ “must also explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved”); Clifton, 79 F.3d at 1010 (an ALJ
must “discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects”).
The Commissioner further notes that the ALJ stated Ms. Call’s non-severe
impairments could be controlled by adherence to recommended medical treatment and
the proper administration of prescribed medications, and that Ms. Call has no
documented presence of neuropathy or end organ damage related to her diabetes.

15

(Doc. 22 at 5) (citing AR 14). These statements by the ALJ were made at step two, and
not in the ALJ’s step four RFC determination, and the Tenth Circuit has explained that
an ALJ may not simply rely on his step two findings to conclude at step four that a
claimant has no limitations based on her non-severe impairments. See Wells v. Colvin,
727 F.3d 1061, 1068 (10th Cir. 2013) (finding that the ALJ’s reliance on his step two
findings to conclude at step four that the claimant had no limitation based on her mental
impairments “was inadequate under the regulations and the Commissioner’s
procedures”); see also Suttles v. Colvin, 543 Fed. Appx. 824, 826 (10th Cir. 2013)
(unpublished) (finding no error in the ALJ’s RFC determination where the ALJ’s step two
and step four assessments could be read in combination to conclude that the ALJ
adequately considered the claimant’s mental impairments). Since the ALJ did not
discuss Ms. Call’s non-severe impairments in making his RFC determination, the Court
cannot rely solely on the ALJ’s reasoning at step two to support his findings at step four.
In addition, the ALJ does not provide any support from the record for his
statements that Ms. Call’s non-severe impairments can be controlled and that she has
no documented damage related to her diabetes. While the Commissioner provides
citations to evidence in the record showing that Ms. Call’s diabetes was uncomplicated
and improving with medications, that she had no sensory or motor deficits in her
extremities, and that Ms. Call stated that her depression and anxiety were improving
with medication, (Doc. 22 at 5-6), the ALJ did not cite to any of this evidence in his
decision. The Commissioner’s attempt to supply this evidence is again an impermissible
post hoc rationalization. See Robinson, 366 F.3d at 1084.

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Based on the foregoing, the Court finds that the ALJ failed to properly consider
Ms. Call’s non-severe impairments in his RFC determination. While the ALJ provided a
limited discussion at step two of Ms. Call’s non-severe impairments, the ALJ did not rely
on evidence in the record and failed to explain how he considered and resolved
inconsistencies in the evidence. See SSR 96-8p, at *7 (the ALJ “must also explain how
any material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved”). Therefore, the Court finds that the ALJ failed to comply with
§ 404.1545(e) and SSR 96-8p by not adequately considering the limiting effects of Ms.
Call’s non-severe impairments in making his RFC determination.
3. The ALJ’s Consideration of Ms. Call’s Activities of Daily Living, Social
Functioning, and Concentration, Persistence, and Pace
Next, Ms. Call contends the ALJ failed to properly evaluate her activities of daily
living, social functioning, and concentration, persistence, and pace. (Doc. 20 at 9-11).
Specifically, Ms. Call objects to the ALJ’s findings that she has no limitations in activities
of daily living, and that she is only mildly limited in social functioning and in
concentration, persistence, and pace. Id.
Under 20 C.F.R. § 404.1520a, when a claimant has a medically determinable
mental impairment it must be evaluated at step two by rating the degree of functional
limitation in four broad functional areas: “Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R. §
404.1520a(c)(3). After rating the degree of functional limitation in each area, the ALJ
then determines the severity of the mental impairment. Id. § 404.1520a(d). As explained
above, however, any error at step two is harmless if the ALJ finds at least one severe
impairment and proceeds to the next step of the sequential evaluation process. See
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Allman, 813 F.3d at 1330. Moreover, the criteria used at steps two and three to evaluate
a claimant’s mental impairments are “not an RFC assessment,” and “[t]he mental RFC
assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment.” SSR 96-8p, at *4. Therefore, since the ALJ’s findings regarding
Ms. Call’s limitations in daily living, social functioning, and concentration, persistence,
and pace, were made at step two, and the ALJ found that Ms. Call has at least one
severe impairment and proceeded to step three, any error by the ALJ as to these
findings is harmless.
4. The ALJ’s Consideration of Dr. Owen’s Opinions
Ms. Call contends that the ALJ failed to properly evaluate the medical opinions of
State Agency consultative examiner, Dr. Owen. (Doc. 20 at 11-13). Dr. Owen evaluated
Ms. Call in April 2013, and diagnosed her with a depressive disorder and a mood
disorder. (AR 324). Dr. Owen further found that Ms. Call has moderate limitations in her
abilities to attend, concentrate, and persist at tasks. (AR 325). The ALJ considered
these opinions at step two, and stated that Ms. Call’s “mental impairments of depressive
disorder and anxiety disorder, considered singly and in combination, do not cause more
than minimal limitation in [her] ability to perform basic mental work activities and are
therefore nonsevere.” (AR 15). The ALJ then stated he gave little to no weight to Dr.
Owen’s opinions that Ms. Call has moderate limitations in her abilities to attend,
concentrate, and persist at tasks because “there is little to no indication that Ms. Call
has difficulties in these areas.” Id. However, the ALJ gave great weight to Dr. Owen’s
opinions that Ms. Call has either no difficulties or mild difficulties in her other mental

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abilities. Id. The ALJ did not address Dr. Owen’s opinions in his step four findings, and
these limitations are not accounted for in the ALJ’s RFC determination.
The Commissioner contends that the ALJ provided sufficient reasons explaining
why he rejected portions of Dr. Owen’s opinions. (Doc. 22 at 10-11). As explained
above, there is a difference between evaluating the severity of mental limitations at
steps two and three of the sequential evaluation, and in assessing mental limitations in
the RFC assessment at step four. SSR 96-8p, at *4 (explaining that the criteria used at
steps two and three to evaluate a claimant’s mental impairments are “not an RFC
assessment,” and “[t]he mental RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment”). While the Tenth
Circuit has held that courts can consider an ALJ’s assessment of medical evidence at
step two to supplement the ALJ’s step four findings, here the ALJ made no step four
findings regarding Ms. Call’s mental limitations and did not discuss Dr. Owen’s opinions
at this step. See Wells, 727 F.3d at 1068 (finding that the ALJ’s reliance on his step two
findings to conclude at step four that the claimant had no limitation based on her mental
impairments “was inadequate under the regulations and the Commissioner’s
procedures”); see also Suttles, 543 Fed. Appx. at 826 (finding no error where the ALJ
found at step two that the claimant’s mental impairments were not severe and the ALJ
discussed evidence relating to the claimant’s mental impairments at step four).
Therefore, the Court finds that the ALJ erred in failing to address Dr. Owen’s opinions in
his RFC determination. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)
(explaining that an ALJ must explain why even moderate limitations are rejected when
they conflict with the ALJ’s RFC assessment); see also SSR 96-8p at *7 (“The RFC

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assessment must always consider and address medical opinions. If the RFC
assessment conflicts with an opinion from a medical source, the [ALJ] must explain why
the opinion was not adopted.”).
V.

Conclusion

For the reasons stated above, the Court finds that the ALJ failed to properly
consider Ms. Call’s non-severe impairments and Dr. Owen’s opinions in making his
RFC determination. The Court does not decide the issue of whether the ALJ properly
considered the physical and mental demands of Ms. Call’s past relevant work because
that claim may become moot upon remand.
IT IS THEREFORE ORDERED that Ms. Call’s Motion to Reverse and Remand to
Agency for Rehearing, With Supporting Memorandum, (Doc. 20), is GRANTED IN
PART, and that this case be REMANDED to the Commissioner for further proceedings.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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