Serna v. Social Security Administration
ORDER by Magistrate Judge Gregory J. Fouratt granting 20 Motion to Remand to Agency. (kdj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
LORYNN D. SERNA,
Civ. No. 16-1176 GJF
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
THIS MATTER is before the Court on Plaintiff’s “Motion to Remand and Supporting
Brief” (“Motion”) filed on March 13, 2017. ECF No. 20. The Commissioner responded on May
12, 2017. ECF No. 22. Plaintiff replied on May 26, 2017. ECF No. 23. Having meticulously
reviewed the briefing and the entire record, the Court concludes that Plaintiff’s Motion is well
taken and that the Administrative Law Judge’s (“ALJ’s”) ruling should be REVERSED and
Therefore, and for the reasons articulated below, the Court will GRANT
Plaintiff was born in New Mexico on October 18, 1968. Administrative R. (“AR”) 51,
444. Plaintiff joined the U.S. Army in 1988, where she served for four years as a mechanic and
deployed overseas during Operation Desert Storm. AR 54. Following her honorable discharge
in 1992, she received an associate degree from Northern New Mexico Community College and
worked from 1994 to her alleged onset date as an x-ray technologist. AR 51-52.
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on March 1, 2012.
AR 186-93. Plaintiff claimed disability beginning on January 31, 2012, based on fibromyalgia,
degenerative disc disease, post-traumatic stress disorder (“PTSD”), Crohn’s disease, migraines,
gynecological problems, multiple sclerosis, dyshidrotic eczema from Gulf War syndrome,
fingernails falling off from Gulf War syndrome, and irritable bowel syndrome. 1 AR 87-88.
The Social Security Administration (“SSA”) denied Plaintiff’s application initially on
September 10, 2012 [AR 100], and upon reconsideration on May 20, 2013. AR 112. At her
request, Plaintiff received a de novo hearing before ALJ Michelle Lindsay on January 12, 2015,
at which Plaintiff, her attorney, and vocational expert (“VE”) Thomas Greiner appeared. AR 4686. On May 7, 2015, the ALJ issued her decision, finding that Plaintiff was not disabled within
the meaning of the Social Security Act (“the Act”). AR 40. Plaintiff appealed to the SSA
Appeals Council, but it declined review on September 17, 2016. AR 1-4. As a consequence, the
ALJ’s decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2017).
Plaintiff timely filed her appeal with this Court on October 26, 2016. ECF No. 1.
Plaintiff advances numerous grounds for relief. First, she argues that the ALJ’s step three
analysis is both fraught with legal error and bereft of evidentiary support. Pl.’s Mot. 5-9, ECF
No. 20. Second, Plaintiff contends the ALJ committed legal error by misstating the burden of
proof at step five. Id. at 9-10. Third, she claims the ALJ failed to follow Social Security Ruling
(“SSR”) 00-4p and relevant case law by neglecting to ask the VE whether his testimony was
consistent with the Dictionary of Occupational Titles (“DOT”). 2 Id. at 10-11. Fourth, Plaintiff
alleges multiple deficiencies in the ALJ’s calculation of Plaintiff’s residual functional capacity.
Because claimants self-report their allegedly disabling conditions, the ailments claimed are often somewhat
vernacular, vague, and non-technical.
The DOT includes detailed descriptions of jobs (classified by their exertional and skill requirements) that exist in
the national economy. 20 C.F.R. § 220.134 (2017). Regulations require the Commissioner to take administrative
notice of job information provided by the DOT. 20 C.F.R. § 404.1566 (2017).
Id. at 11-14. Fifth, Plaintiff argues that the ALJ erroneously evaluated medical evidence from:
(1) the U.S. Department of Veterans Affairs (“VA”) generally; (2) VA clinical psychologist
Maureen M. McAndrews, Ph.D; and (3) consultative psychologist Robert Krueger, Ph.D. Id. at
14-19. Sixth, Plaintiff challenges the ALJ’s criticism of her VA disability rating. Id. at 19-21.
Seventh, she contends that the ALJ’s adverse credibility finding is without evidentiary basis. Id.
at 21-24. Lastly, she argues that the ALJ incorrectly applied governing standards in evaluating
the statements of Plaintiff’s husband and daughter.
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision
becomes the final decision of the agency. 3 The Court’s review of that final agency decision is
both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”).
Factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 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). 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
A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2017); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).
scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
Substantial evidence does not, however, require a preponderance of the evidence. See 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)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d
at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the Court examines “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ’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; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1.
If a claimant’s
impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to
the first of three phases of step four and determines the claimant’s residual functional capacity
(“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the
ALJ determines the physical and mental demands of the claimant’s past relevant work, and in the
third phase, compares the claimant’s RFC with the functional requirements of her past relevant
work to determine if the claimant is still capable of performing her past work. See Winfrey, 92
F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f).
If a claimant is not prevented from
performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).
[Plaintiff] bears the burden of proof on the question of disability for the first four steps. See
Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir.
If the claimant cannot return to her past work, the burden shifts to the Commissioner at the
fifth step to show that the claimant is nonetheless capable of performing other jobs existing in
significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation
process in detail).
THE ALJ’S DECISION
The ALJ issued her decision on May 7, 2015. AR 40. At step one, she found that
Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of
January 31, 2012. AR 32. At step two, the ALJ found Plaintiff to suffer from numerous severe
impairments, including: (1) fibromyalgia; (2) mild degenerative disc disease of the lumbar spine;
(3) Crohn’s disease; (4) migraines; (5) depressive disorder; and (6) PTSD. AR 32. The ALJ
declined, however, to find that Plaintiff suffered from multiple sclerosis (“MS”). Rather, she
opined that “there is no evidence of [Plaintiff] ever having a diagnosis of MS,” and therefore “a
lack of objective evidence to substantiate the existence of a medically determinable impairment
of multiple sclerosis.” AR 32-33.
At step three, the ALJ found that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 33-34. This finding included an analysis of Plaintiff’s mental
impairments, which the ALJ found did not meet or medically equal the criteria of Listing
Sections 12.04 (affective disorders), 12.06 (anxiety-related disorders), or 12.09 (substance
addiction disorders). 4 AR 24-26.
The ALJ found that the paragraph B criteria of Listings 12.04 and 12.06 were not met
“[b]ecause the claimant’s mental impairments do not cause at least two ‘marked’ limitations or
one ‘marked’ limitation and ‘repeated’ episodes of decompensation, each of extended duration.”
AR 34. She then explained her reasoning regarding paragraph B’s four subparts, beginning with
Paragraph B of Listings 12.04 and 12.06 (which was identical at the time in both) describes impairment-related
functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations
must be the result of the mental disorder described in the diagnostic description. To meet either of these two
Listings, a claimant must exhibit at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, §§ 12.04(B), 12.06(B) (2015). On March 27, 2017, the SSA
significantly altered the language of these listings.
Listing 12.09 describes behavioral changes or physical changes associated with the regular use of substances that
affect the central nervous system. The required level of severity for these disorders is met when the requirements in
any of the following (A through I) are satisfied.
A. Organic mental disorders. Evaluate under 12.02.
B. Depressive syndrome. Evaluate under 12.04.
C. Anxiety disorders. Evaluate under 12.06.
D. Personality disorders. Evaluate under 12.08.
E. Peripheral neuropathies. Evaluate under 11.14.
F. Liver damage. Evaluate under 5.05.
G. Gastritis. Evaluate under 5.00.
H. Pancreatitis. Evaluate under 5.08.
I. Seizures. Evaluate under 11.02 or 11.03.
Id. § 12.09 (2015). The ALJ mentions analyzing Plaintiff’s impairments under Listing 12.09, see AR 33-34, but
makes no explicit findings related to that Listing. The Court assumes that upon finding that Plaintiff’s impairments
did not meet or equal the severity of the relevant Listings enumerated in 12.09 for evaluation (in this case, 12.04 and
12.06), the ALJ considered the inquiry into Listing 12.09 to be complete.
activities of daily living. There, the ALJ found Plaintiff to have only a mild restriction. The ALJ
observed that Plaintiff was able to do laundry, wash dishes, engage in personal care, make simple
meals, and read. AR 33. She also noted that Plaintiff could lift ten pounds, sit for one half hour,
stand for twenty minutes, and walk for ten. AR 33. Additionally, the ALJ looked to Plaintiff’s
VA records, which indicated Plaintiff “was able to perform routine activities of daily living.”
AR 33 (citing AR 821).
As to social functioning, the ALJ found Plaintiff to suffer moderate difficulties. The ALJ
supported her finding by citing to Plaintiff’s self-reported “Function Report – Adult.” AR 33;
see AR 247-54. Therein, Plaintiff reported that she occasionally shopped with her husband 5 and
socialized with family members on the phone. AR 33.
The ALJ also found Plaintiff to suffer moderate difficulties with concentration,
persistence, and pace. She relied again on Plaintiff’s self-reporting to observe that Plaintiff could
handle her financial affairs and watch television all day, but that she required reminders to attend
doctor appointments, and that she followed spoken instructions better than written instructions.
The ALJ concluded her paragraph B discussion by finding that Plaintiff “has experienced
no episodes of decompensation, which have been of extended duration.” AR 34. This same
finding also supported the ALJ’s conclusion that Plaintiff had failed to establish the ‘paragraph
C’ criteria.” 6
AR 34. The ALJ explained that there was “no evidence” of a “residual disease
Plaintiff testified at her administrative hearing that when she went shopping she generally waited in the car, as she
didn’t “like to be around crowds,” since they made her “very nervous.” AR 76.
Paragraph C of Listings 12.04 and 12.06 (which was also identical at the time of the ALJ’s decision in both)
describes mental disorders that are serious and persistent. To qualify under this paragraph in either Listing, a
claimant must have a medically documented history of the existence of the disorder over a period of at least two
years, and evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is
ongoing and that diminishes the symptoms and signs of your mental disorder; and
process that has resulted in such marginal adjustment that even a minimal increase in mental
demands or change in environment would be predicted to cause [Plaintiff] to decompensate” or
one or more years of a history of an “inability to function outside a highly supportive living
arrangement.” AR 34. Furthermore, she reasoned that Plaintiff failed to establish a “complete
inability to function independently outside the area of [her] home,” and as a consequence, she
concluded that Plaintiff had failed to qualify under the paragraph C criteria of either Listing
12.04 or 12.06. AR 34.
Because none of Plaintiff’s impairments satisfied an applicable Listing, the ALJ moved
on to step four and assessed Plaintiff’s RFC. AR 34-39. “After careful consideration of the
entire record,” the ALJ determined that Plaintiff had the residual functional capacity to perform a
range of light work, as defined in 20 C.F.R. § 404.1567(b), with the following limitations:
the ability to lift and carry 20 pounds occasionally and 10 pounds frequently;
stand and/or walk for six hours out of an eight-hour workday with regular breaks;
sit for six hours out of an eight-hour workday with regular breaks; and push and
pull 20 pounds occasionally and 10 pounds frequently. She is further limited in
that she can only occasionally climb stairs and ramps, balance, stoop, crouch,
kneel, and crawl; can never climb ladders, ropes[,] or scaffolds; and must avoid
more than occasional exposure to extreme heat or cold. She is also limited to
understanding, remembering, and carrying out simple instructions; is able to
maintain attention and concentration to perform only simple tasks for two hours at
a time without requiring redirection to task; can have only occasional contact with
the general public; can have only superficial interactions with coworkers and
supervisors; requires work involving no more than occasional change in the
routine work setting; and requires work involving very little independent goal
setting or decision making.
To develop Plaintiff’s RFC, the ALJ relied on two principal grounds. First, the ALJ
rendered an adverse credibility finding against Plaintiff, finding that although Plaintiff’s
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to
demands that are not already part of your daily life
20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, §§ 12.04(C), 12.06(C).
“medically determinable impairments could reasonably be expected to cause the alleged
symptoms,” Plaintiff’s “statements concerning the intensity, persistence[,] and limiting effects of
these symptoms” were “not entirely credible.” AR 35. The ALJ questioned the severity of
Plaintiff’s symptoms in sequence, first finding that despite her claims of fibromyalgia, x-rays of
her hands in 2011 and of her feet in 2012 showed no abnormalities. AR 35. The ALJ further
noted that Plaintiff’s doctor had recommended that she exercise to assist with the fibromyalgia,
and Plaintiff’s “lying around” and “doing nothing” were “not appropriate.” AR 36. Next, the
ALJ scrutinized Plaintiff’s spinal symptoms, observing that she had only “early discogenic
disease,” “minimal diminution of the L5-S1 level,” and “no significant osteophytic formation.”
AR 36. She similarly discounted Plaintiff’s reports of her Crohn’s disease forcing her to “wear
adult diapers” by recounting that “recent colonoscopies have been completely normal with no
evidence of inflammation.” AR 36. Lastly, the ALJ noted that despite Plaintiff’s assertion that
she “was unable to cope with people and [the] demands of her [last] job,” Plaintiff reported in
March 2013 that she “was not suicidal or homicidal,” had a “positive support system,” and
intended to “reduce social isolation and perform meaningful activities.” AR 36. In sum, the ALJ
reasoned that “despite her alleged impairments, [Plaintiff] has engaged in a somewhat normal
level of daily activity and interaction” which replicated the level “necessary for obtaining and
maintaining employment.” AR 37.
Along with Plaintiff’s adverse credibility finding, the ALJ evaluated two lay opinions,
multiple medical sources, and an administrative finding from the VA. The ALJ began by
assigning little weight to the opinions of Plaintiff’s husband and daughter, as she found them to
be inconsistent with the medical evidence, lacking in medical training, and possibly colored by
affection for Plaintiff. AR 37.
She then turned to the medical opinions of record, and began by according “significant
weight to the opinions of the non-examining state agency physicians as to the nature and severity
of [Plaintiff’s] physical impairments and functioning,” as their determination “support[ed] [the
ALJ’s] residual functional capacity [finding] for unskilled work at the light level.” AR 37.
Nevertheless, she assigned only “limited weight” to these unnamed physicians’ opinions
concerning Plaintiff’s mental impairments and functioning, as she found Plaintiff’s limitations
“more severe than is indicated in their determinations.” AR 37.
The ALJ discounted each of the remaining medical opinions, including that of examining
consultative psychologist Robert Kruger, Ph.D. See AR 37-38. Dr. Kruger opined that Plaintiff
may have marked impairment “with following instructions and maintaining pace and persistence
in work environments” and “moderate and at time[s] marked impairment in relationships with
coworkers, supervisors[,] and the public.” AR 38. The ALJ accorded little weight to this
opinion, as she found it rooted in Plaintiff’s subjective complaints, lacking in longitudinal
history, and based on physical, rather than mental, limitations. AR 38. The ALJ also discounted
the statement of treating physician Dr. Brent Van Andel, M.D., as he “list[ed] the impairments
for which he provided treatment, but did not offer any physical limitations.” AR 38. Similar
logic animated the ALJ’s approach toward clinical social worker Ms. Meagan Aiken, who also
provided a statement on Plaintiff’s behalf.
The ALJ found that the statement “confirmed
participation in individual counseling services,” but, because it did “not provide any mental
limitations,” she assigned it little weight. AR 38.
Lastly, the ALJ considered the ninety percent disability rating ascribed to Plaintiff by the
She noted that “because the VA and SSA criteria for determining disability are not
identical, an [ALJ] may give less weight to a VA disability rating if there are persuasive,
specific, valid reasons for doing so that are supported by the record.” AR 38 (citing 20 C.F.R. §§
404.1504, 416.904 (2015); SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006)). And, focusing on
the VA rating, the ALJ reasoned that “[t]he VA’s decision . . . seems to be based on [Plaintiff’s]
subjective allegations, particularly because it is based on PTSD and fibromyalgia, both of which
are subjective disorders.” AR 38. As such, she accorded the rating “little weight,” as she found
that Plaintiff’s “admitted activities” were not consistent with the VA’s disability rating “or the
inability to perform work activity.” AR 38.
The ALJ concluded, based on Plaintiff’s adverse credibility finding and opinions listed
above, that Plaintiff’s “residual functional capacity assessment is supported by the objective
medical evidence contained in the record.” AR 38. Therefore, the ALJ proceeded to the second
phase of step four and found that Plaintiff had past relevant work as an x-ray technician. AR 39.
In the third phase of step four, the VE testified that an individual with Plaintiff’s RFC would be
incapable of performing Plaintiff’s past relevant work. AR 81. As a consequence, the ALJ
proceeded to step five.
At step five, the ALJ relied on the testimony of the VE to determine what jobs, if any,
Plaintiff could still perform. The VE testified that an individual with Plaintiff’s RFC could
perform the jobs of blending tank tender helper, DOT #520.687-066, bakery worker, DOT
#524.687-022, and electronics worker, DOT #726.687-010. AR 40. Based on that testimony,
the ALJ concluded that “considering [Plaintiff’s] age, education, work experience, and residual
functional capacity, [Plaintiff] is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” AR 40. Accordingly, the ALJ found that
Plaintiff had not been under a disability, as defined by the Act, during the relevant time period
and denied her claim. AR 40.
Plaintiff’s Motion advances eight allegations of error, but the Court need only address the
fifth. 7 There, Plaintiff advances a meritorious challenge that the ALJ committed legal error by
failing to analyze and assign weight to the opinion of examining psychologist Dr. Maureen M.
McAndrews, Ph.D. Because appropriate analysis of that opinion may affect the disposition of
Plaintiff’s disability determination, the Court must remand and reverse the ALJ’s decision for
both proper analysis and support.
The Parties’ Positions
Plaintiff’s allegation of error, though ultimately meritorious, is not immune from
criticism. She begins on solid footing, correctly observing that the ALJ’s decision omits any
mention of Dr. McAndrews’s consultative psychological examination of November 18, 2011.
See Pl.’s Mot. 15; AR 30-40, 439-51 (Dr. McAndrews’s report). She builds upon that foundation
by recounting several of Dr. McAndrews’s findings that could be interpreted as recommending
limitations in excess of those identified in Plaintiff’s RFC. See Pl.’s Mot. 3. From there, she
leverages the ALJ’s failure to analyze Dr. McAndrews’s opinion as support for several other
claims. See id. 6-8 (first claim); 20 (sixth claim). But Plaintiff overreaches when she asks this
Court to accept the novel proposition that simply because Dr. McAndrews works for the VA,
which is an “established health care system,” she should therefore be considered “a treating
To provide guidance to the ALJ on remand, the Court notes that it also would have strongly considered reversing
and remanding based on Plaintiff’s third claim. There, Plaintiff argues that the ALJ failed to follow SSR 00-4p by
neglecting to ask the VE whether his testimony was consistent with the DOT. Pl.’s Mot. 10-11, ECF No. 20. SSR
00-4p imposes upon ALJs “an affirmative responsibility to ask . . . the VE if the evidence he or she has provided
conflicts with information provided in the DOT.” SR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000)). Here, the
ALJ neglected her affirmative duty under SSR 00-4p to ensure consistency between the VE’s testimony and the
DOT. See AR 79-84. This likely represents reversible error and likely would have necessitated remand.
source,” 8 whose “opinion is entitled to the greatest weight, if not controlling weight.” Id. at 15.
To support this rather audacious notion, she urges this Court to consider Dr. McAndrews’s
opinion within the context of the VA as a whole, arguing that Dr. McAndrews had the
longitudinal history of the VA at her disposal, and was “presumably most expert in interpreting
the nuances of VA health care practice.” Id. Put another way, Plaintiff faults the ALJ for
seemingly subsuming the evaluation of Dr. McAndrews’s opinion within her evaluation of the
VA’s disability rating writ large, while at the same time (and apparently oblivious to the irony)
asking this Court to accord greater weight to Dr. McAndrews’s opinion by considering it within
the context of the VA system writ large.
The Commissioner responds that “[t]here are two problems with Plaintiff’s argument.”
Def.’s Resp. 20, ECF No. 22. First, she contends that the ALJ “specifically considered” the VA
disability rating, “which was based on Dr. McAndrews’s evaluation.” Id. The Commissioner
further argues that in doing so, the ALJ specifically cited to the VA records (Exhibit F of the
Administrative Record), “which included Dr. McAndrews’s report.”
maintains that “the ALJ was not required to reference everything in the administrative record and
the fact that she did not discuss everything Dr. McAndrews wrote did not mean that she did not
consider it.” Id. (citing Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010); Wall v. Astrue,
561 F.3d 1048, 1067 (10th Cir. 2009)).
Under the treating physician rule, “the Commissioner will generally give greater weight to the opinions of sources
of information who have treated the claimant than of those who have not.” Hackett v. Barnhart, 395 F.3d 1168,
1173 (10th Cir. 2005) (citing Langley, 373 F.3d at 1119). See 20 C.F.R. § 404.1527(d)(2) (2017) (defining how the
SSA uses medical source opinions, including treating sources, but reserving the final decision on residual functional
capacity to the Commissioner); 20 C.F.R. § 416.927(d)(2) (2017) (same).
On January 18, 2017, the SSA amended the language of 20 C.F.R. § 416.927 to make clear that claims filed after
March 27, 2017, would be evaluated under § 416.920c. 20 C.F.R. § 416.927 (2017). Section 416.927 now
specifies, however, that for claims “filed before March 27, 2017, the rules in this section apply.” Id.
Dr. McAndrews’s Opinion
Dr. McAndrews performed a consultative psychological examination of Plaintiff on
November 18, 2011, which focused on assessing Plaintiff’s PTSD. AR 439. To that end, Dr.
McAndrews observed at the outset that Plaintiff demonstrated “serious symptoms of PTSD in all
Plaintiff reported to Dr. McAndrews that she was “extremely
uncomfortable in crowds and public places,” that her “prominent mood [was] anger” and that
“she require[d] little provocation for physical violence.” AR 440-41. She also stated that she
suffered from multiple crying spells per week, that she was frustrated and irritable, and that she
engaged in frequent verbal arguments with her husband that escalated to violence once or twice a
year. AR 441. Plaintiff related specific instances where she had “beat[en] up a girl in a bar” for
laughing at her, and another where she struck her windshield so violently that it caused nerve
damage in her hand. AR 441. In addition, Plaintiff stated she suffered transient passive suicidal
ideation. AR 441.
Following her examination of Plaintiff and a review of her service and VA medical
records, Dr. McAndrews diagnosed Plaintiff with chronic PTSD. AR 440. She also assigned
Plaintiff a Global Assessment of Functioning (“GAF”) score of 50, 9 noting that Plaintiff “has
serious symptoms of PTSD that contribute to deficiencies in her judgment, thinking, mood,
social[,] and family life.” AR 442. Dr. McAndrews opined that Plaintiff experienced “near
continuous agitation and marked impairments in impulse control, such as unprovoked irritability
with periods of violence toward strangers and frequently toward her husband.” AR 442.
explained that Plaintiff “avoids crowds and public places so she will not be triggered to
The Global Assessment of Functioning test is “widely used for scoring the severity of illness in psychiatry.” See
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2880316/#B14 (last visited November 22, 2017). A GAF score of
50 indicates “[s]erious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job).” See
https://msu.edu/course/sw/840/stocks/pack/axisv.pdf (last visited November 22, 2017).
violen[ce],” and that she similarly “has limited frustration tolerance, and therefore limits her
socializing to family members.” AR 442. She did note, however, that Plaintiff’s “[o]ccupational
functioning has been relatively stable with respect to PTSD symptoms.” AR 442. When asked
to summarize Plaintiff’s “level of occupational and social impairment” on a scaled score of one
to seven options, Dr. McAndrews rated her in the sixth most severe category, opining that
Plaintiff’s impairments caused “deficiencies in most areas, such as work, school, family
relations, judgment, thinking[,] and/or mood.” AR 443. The only selection more severe was
“[t]otal occupational and social impairment.” AR 443.
Standard for Evaluating Consultative Examiners
Governing regulations require that an ALJ “will evaluate every medical opinion”
received, “[r]egardless of its source.” 20 C.F.R. § 404.1527(c) (2017). 10 The same regulations
define medical opinions as “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s),
and your physical or mental restrictions.” Id. § 404.1527(a)(2). SSR 96-6p 11 also provides
guidance on how to evaluate opinions of consultative examiners, including opinions of
psychological consultants. SSR 96-6p, 1996 WL 374180 (July 2, 1996). Specifically, it directs
that findings of fact made by a consultative examiner “must be treated as expert opinion
evidence of nonexamining sources.” Id. at *1. ALJs may not ignore these opinions and must
On January 18, 2017, the SSA amended the language of 20 C.F.R. § 1527 to make clear that claims filed after
March 27, 2017, would be evaluated under § 404.1520c. 20 C.F.R. § 1527 (2017). Section 1527 now specifies,
however, that for claims “filed before March 27, 2017, the rules in this section apply.” Id.
On March 27, 2017, the SSA rescinded SSR 96-6p. See 82 Fed. Reg. 15263-02 (Mar. 27, 2017). Nevertheless,
because SSR 96-6p was not yet rescinded at the time of the ALJ's decision, and the new rules do not apply here, the
Court considers SSR 96-6p good authority in this case.
explain the weight given to these opinions. Id. at *2. Yet, because opinions of consultative
examiners are not accorded the same value as treating sources, SSR 96-6p mandates as follows:
the opinions of State agency medical and psychological consultants and other
program physicians and psychologists can be given weight only insofar as they
are supported by evidence in the case record, considering such factors as the
supportability of the opinion in the evidence including any evidence received at
the administrative law judge and Appeals Council levels that was not before the
State agency, the consistency of the opinion with the record as a whole, including
other medical opinions, and any explanation for the opinion provided by the State
agency medical or psychological consultant or other program physician or
The ALJ’s Failure to Evaluate Dr. McAndrews’s Opinion Constitutes
Reversible Legal Error
The ALJ’s decision must be reversed and remanded, notwithstanding the parties’ inability
to identify why. For her part, Plaintiff asks this Court to accord controlling weight to Dr.
McAndrews’s opinion under the treating physician rule while ignoring the fact – demonstrated
by the record – that Dr. McAndrews never treated Plaintiff. See Pl.’s Mot. 15. The Court
declines the invitation.
The Commissioner’s two arguments, although less overtly flawed, also fail upon closer
inspection. As to the first, this Court cannot agree with the Commissioner that the ALJ’s general
consideration of the VA’s disability rating absolved the ALJ of her responsibility to separately
evaluate Dr. McAndrews’s opinion. See Def.’s Resp. 20. The Commissioner cites no authority
for this proposition, as it flies in the face of the SSA’s own regulations requiring an ALJ to
evaluate every medical opinion in the record. See 20 C.F.R. § 1527. Rather, the Commissioner
cites to the record, through the seemingly supportive statement that while evaluating the VA
rating, “the ALJ specifically cited to Exhibit 3F, which included Dr. McAndrews’s report.”
Def.’s Resp. 20.
What the Commissioner fails to mention is that of the ten citations the ALJ
makes to Exhibit F (which represents Plaintiff’s entire VA medical record), not one of them is to
Dr. McAndrews’s report. AR 35 (citing AR 383 (hand x-ray)), AR 36 (citing AR 427 (pain
medications), AR 422 (support system), AR 480-81, 507, 524 (Crohn’s disease), AR 407, 507
(spinal diagnostics)), AR 37 (citing AR 422 (Plaintiff’s reason for leaving employment)), AR 38
(citing AR 403 (Plaintiff’s VA disability percentages)). Thus, despite demonstrating the ability
to cite to nearly a dozen VA records, the ALJ neglected to evaluate and weigh the one VA
medical record that both demanded her scrutiny and contained sufficient information for her to
carry out that function. See 20 C.F.R. § 1527. Compare AR 38 (discounting the opinions of VA
medical sources Dr. Van Andel and Ms. Aiken for containing insufficient information regarding
functional limitations to properly evaluate and assign weight). It is just as plausible that Dr.
McAndrews’s opinion is the one record the ALJ neglected to review during the administrative
process as it is that the evaluation of that record informed her assessment of the VA rating
generally, and it is that uncertainty the governing regulations aim to preclude.
The Commissioner also argues that “the ALJ was not required to reference everything in
the administrative record and the fact that she did not discuss everything Dr. McAndrews wrote
did not mean that she did not consider it.” Id. (citing Wilson v. Astrue, 602 F.3d 1136, 1148
(10th Cir. 2010); Wall v. Astrue, 561 F.3d 1048, 1067 (10th Cir. 2009)). The Court recognizes
that an ALJ is not required to “discuss every piece of evidence,” see Franz v. Astrue, 509 F.3d
1299, 1303 (10th Cir. 2007), but nothing in Wall stands for the proposition that an ALJ’s
decision can be completely silent on a medical opinion that regulations otherwise require her to
evaluate. See Wall, 561 F.3d at 1067. To the contrary, in Wall, the Tenth Circuit observed that
“the ALJ discussed all of the relevant medical evidence in some detail,” see id. at 1068 (citation
and internal quotation marks omitted), which allowed the court to take the ALJ “at his word.”
Id. at 1070 (citation and internal quotation marks omitted). The same cannot be said here, as the
ALJ failed to specifically discuss relevant medical evidence in the record. Consequently, Wall
cannot bear the weight the Commissioner seeks to place on it.
The Commissioner’s reliance on Wilson is similarly flawed, as the Wilson court analyzed
a claimant’s challenge that an ALJ’s failure to discuss two “entry reports” constituted reversible
error. See 602 F.3d at 1148. The Court agrees with the Commissioner that Wilson states the
familiar proposition that an ALJ is not required to discuss every piece of evidence in the record.
See id. However, the Wilson court based its decision on the fact that the two entry reports in
question were cumulative with respect to the undisputed evidence that the claimant “has serious
long-term mental health limitations that clearly impact her life.” Id. Furthermore, neither entry
represented a complete medical opinion, nor did either ascribe limitations. See id. By contrast,
the instant matter presents a completed psychological consultative examination, performed by a
doctoral-level psychologist, recommending a distinct scope of limitations and plaintiff’s social
and occupational employment. The Court therefore finds the Commissioner’s reliance on Wilson
to be misplaced, as Dr. McAndrews’s opinion is significantly probative and is not duplicative of
any other evidence in the record.
The Court finds that the ALJ committed legal error by failing to make manifest her
evaluation of the medical opinion of Dr. McAndrews. See 20 C.F.R. § 1527 (requiring an ALJ to
consider all medical opinions, regardless of their source).
Furthermore, Dr. McAndrews’s
opinion demonstrates a unique methodology among the medical records, a distinct GAF score,
and severe limitations that may impact the ALJ’s ultimate determination of disability. Whether
or not the opinion militates toward a finding of disability is not the province of this Court to
decide in the first instance, but one committed by regulation to the ALJ. To ensure the proper
evaluation is done, the Court will grant Plaintiff’s Motion and remand the instant matter.
For the reasons articulated above, the Court finds that the ALJ’s failure to consider and
evaluate the opinion of consultative examiner Dr. Maureen M. McAndrews, Ph.D., represents
reversible legal error.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum” [ECF No. 20] is GRANTED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED
and that the instant cause is REMANDED for further review consistent with this opinion.
IT IS SO ORDERED.
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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