Gonzales v. Social Security Administration

Filing 27

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BERNARDO LEON GONZALES,
Plaintiff,
v.

No. CV 16-1225 CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Bernardo Leon Gonzales’ Motion
to Reverse And Remand For Rehearing With Supporting Memorandum (the “Motion”),
(Doc. 20), filed June 29, 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 28, 2017; and Mr. Gonzales’ Reply in
Support of Plaintiff’s Motion to Reverse and Remand for Rehearing (the “Reply”), (Doc.
25), filed September 21, 2017.
Mr. Gonzales filed applications for supplemental security income and disability
insurance benefits on February 5, 2013, alleging disability beginning January 1, 2009.
(Administrative Record “AR” 41). Mr. Gonzales claimed he was limited in his ability to
work due to “back problems, anger issues.” (AR 289). Mr. Gonzales’ applications were
denied initially on July 19, 2013, and upon reconsideration on January 7, 2014. (AR 41).
Mr. Gonzales requested a hearing before an Administrative Law Judge (“ALJ”), which
was held on May 28, 2015, before ALJ Eric Weiss. (AR 61). Mr. Gonzales and Karen

Provine, an impartial vocational expert (“VE”), testified at the hearing, and Mr. Gonzales
was represented by attorney Edward Goodman. (AR 61-111).
On June 19, 2015, the ALJ issued his decision, finding Mr. Gonzales not disabled
at any time between his alleged disability onset date through the date of the decision.
(AR 54-55). Mr. Gonzales requested review by the Appeals Council, (AR 36), which was
denied, (AR 1-5), making the ALJ’s decision the Commissioner’s final decision for
purposes of this appeal.
Mr. Gonzales, who is now represented by William Rode, argues in his Motion
that: (1) the Appeals Council failed to properly consider the opinions of Mark Evanko,
D.O; (2) the ALJ failed to properly consider the opinions of State Agency consultants
John Owen, Ph.D., Jill Blacharsh, M.D., and Charles F. Bridges, Ph.D.; and (3) the
ALJ’s step five determination is not supported by substantial evidence. (Doc. 20 at 1322). 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 the opinions of Dr. Owen, Dr. Blacharsh, and Dr.
Bridges, the Court finds that Mr. Gonzales’ 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) (citing 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

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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 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)).

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II.

Applicable Law and Sequential Evaluation Process

For purposes of supplemental security income and 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), 416.905(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, 416.920 (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), 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 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

Mr. Gonzales claimed he was limited in his ability to work due to back problems
and anger issues. (AR 289). At step one, the ALJ determined Mr. Gonzales had not
engaged in substantial gainful activity since January 1, 1999, the alleged onset date.
(AR 43). At step two, the ALJ found that Mr. Gonzales has the following severe
impairments: bilateral carpal tunnel syndrome; right knee early mild arthritis and grade 2
right posterior cruciate ligament tear (non-operable); lumbar spine minimal grade L5 to
S1 spondylolisthesis and pseudarthrosis of the right L5 transverse process with the
sacrum; post-traumatic stress disorder; depressive disorder; dyslexia; personality
disorder, not otherwise specified; and substance abuse in remission. Id. At step three,
the ALJ determined that none of Mr. Gonzales’ impairments, solely or in combination,
equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926. (AR 44-47).
At step four, the ALJ found that Mr. Gonzales has the RFC to perform light work
as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with the following exceptions: he
may occasionally climb ramps and stairs but never ladders, ropes, and scaffolds; he
may occasionally stoop, kneel, crouch, and crawl; he may frequently handle and finger
with his bilateral upper extremities; he must avoid more than occasional exposure to
extreme cold, excessive vibration, unprotected heights, and moving machinery; he is
able to understand, remember, and carry out simple instructions and make
commensurate work-related decisions; he is able to maintain concentration,
persistence, and pace for two hours at a time throughout an eight-hour workday with

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normal breaks; and he may have frequent interaction with supervisors, co-workers, and
the public. (AR 47-48).
In formulating Mr. Gonzales’ RFC, the ALJ stated that he considered Mr.
Gonzales’ symptoms and the extent to which those symptoms can reasonably be
accepted as consistent with objective medical and other evidence, as required by 20
C.F.R. §§ 404.1529 and 416.929, and Social Security Ruling (“SSR”) 96-4p. (AR 48).
The ALJ also stated that he considered opinion evidence in accordance with 20 C.F.R.
§§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Id. The ALJ found
that Mr. Gonzales’ statements concerning the intensity, persistence, and limiting effects
of his symptoms are not entirely consistent with the evidence in the record. Id.
Turning to the medical evidence in the record, the ALJ gave partial weight to Dr.
Owen’s opinions, stating that his finding that Mr. Gonzales has marked limitations in his
ability to interact with others “was not consistent with the other evidence, specifically his
ability to live in a communal environment.” (AR 49). The ALJ gave the opinions of State
Agency consultant Karl R. Moedl, M.D., little weight because Dr. Moedl did not make
any statements about Mr. Gonzales’ abilities or limitations. Id. The ALJ next gave great
weight to the opinions of State agency consultant Paula Hughson, M.D., stating they
“are consistent with the other consultative examination and presentments by [Mr.
Gonzales] in the record.” (AR 50). The ALJ gave little weight to the opinions of State
Agency consultant Em Ward, M.D., because he did not provide an RFC assessment. Id.
Finally, the ALJ considered the opinions of State Agency consultants Dr. Blacharsh and
Dr. Bridges, stating that their “findings are given great weight, however with the
additional evidence the record supports greater limitations.” (AR 51-52).

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The ALJ found that Mr. Gonzales is unable to perform any of his past relevant
work, so the ALJ proceeded to step five. (AR 53). At step five, the ALJ noted that Mr.
Gonzales was 32 years old on the alleged disability onset date, and therefore classified
as “a younger individual” in accordance with the Regulations. Id. The ALJ also
determined that Mr. Gonzales has a limited education and is able to communicate in
English. Id. The ALJ noted that the VE testified at the hearing that an individual with Mr.
Gonzales’ same age, education, work experience, and RFC could perform the jobs of
photocopy machine operator, office helper, and ticket taker. (AR 54). The VE stated that
those jobs existed in significant numbers in the national economy. Id. After finding the
VE’s testimony consistent with the Dictionary of Occupational Titles, the ALJ adopted
the VE’s testimony and concluded that, because Mr. Gonzales is capable of performing
work existing in significant numbers in the national economy, he is not disabled
pursuant to 20 C.F.R. §§ 404.1520(g) and 416.920(g). (AR 54-55).
IV.

Analysis

Mr. Gonzales argues the ALJ improperly weighed and considered the opinions of
State Agency consultants Dr. Owen, Dr. Blacharsh, and Dr. Bridges, because the ALJ
failed to sufficiently explain why he did not incorporate all of their limitations into his
RFC determination. (Doc. 20 at 16-19). In response, the Commissioner contends the
ALJ provided sufficient support for discounting these doctors’ opinions. (Doc. 22 at 912).
Social Security Regulations require ALJs to evaluate every medical opinion in
the record, including the opinions of non-examining State Agency physicians. See 20
C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c); Social Security Ruling (“SSR”) 96-6p, 1996

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WL 374180 (July 2, 1996). Every medical source opinion should be weighed by the ALJ
in consideration of the following applicable “deference factors”:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citation omitted); see
also 20 C.F.R. §§ 404.1527(c)-(d), 416.927(c)-(d). Ultimately, the ALJ must give good
reasons that are “sufficiently specific to [be] clear to any subsequent reviewers” for the
weight that she ultimately assigns the opinions. Langley, 373 F.3d at 1119 (citation
omitted). Failure to do so constitutes legal error. See Kerwin v. Astrue, 244 Fed. Appx.
880, 884 (10th Cir. 2007) (unpublished).
In addition, “[a]n ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability.”
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (citations omitted). Instead, an
ALJ “must . . . explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7
(July 2, 1996). Further, the Commissioner may not rationalize the ALJ’s decision post
hoc, and “[j]udicial review is limited to the reasons stated in the ALJ’s decision.”
Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (citation omitted).
1. Dr. Owen’s Opinions
Dr. Owen performed a consultative evaluation of Mr. Gonzales on November 16,
2010. (AR 386-90). Dr. Owen diagnosed Mr. Gonzales with: “rule out bipolar disorder
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(NOS); rule out anxiety disorder (NOS); cannabis abuse, early partial remission; alcohol
abuse, sustained partial remission; rule out impulse control disorder (NOS); and pain
disorder due to back injury.” (AR 388). Dr. Owen further found that Mr. Gonzales has
moderate limitations in detailed, complex communication and dealing with stress, and
has marked limitations interacting with others. Id. Dr. Owen noted that Mr. Gonzales “is
easily frustrated and does not handle his anger well,” but that “[w]ith medication, he
might do much better in terms of dealing with his anger and possible mood disorder.” Id.
The ALJ stated that he gave partial weight to Dr. Owen’s opinions, reasoning that
Mr. Gonzales’ “marked [limitation] interacting with others was not consistent with the
other evidence, specifically his ability to live in a communal environment.” (AR 49). Mr.
Gonzales contends the ALJ failed to provide sufficient reasons for rejecting Dr. Owen’s
opinions that Mr. Gonzales is moderately limited in his ability to deal with stress and is
markedly limited in his ability to interact with others. (Doc. 20 at 17-19). The
Commissioner responds that the ALJ properly supported his decision to discount Dr.
Owen’s opinions, and that the ALJ accounted for Plaintiff’s mental health impairments in
his RFC determination. (Doc. 22 at 7-10).
First, the ALJ explained that he discounted Dr. Owen’s finding that Mr. Gonzales
is markedly limited in his ability to interact with others because it “was not consistent
with the other evidence, specifically his ability to live in a communal environment.” (AR
49). The ALJ does not explain what “communal environment” he was referring to, but
the record reflects that Mr. Gonzales has spent at least six months at the New Mexico
Men’s Recovery Academy, a residential program for offenders with substance
dependence. See (AR 409-10). The ALJ also does not state what “other evidence” he

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relied on, but the record includes findings by other doctors that support the ALJ’s
decision to discount Dr. Owen’s finding regarding Mr. Gonzales’ ability to interact with
others. See, e.g., (AR 126-27, 142-43, 158-59, 178-79, Dr. Blacharsh’s and Dr. Bridges’
findings that Mr. Gonzales is not significantly limited in his abilities to interact
appropriately with the general public, co-workers, or supervisors; AR 414, Dr.
Hughson’s findings that Mr. Gonzales has only mild limitations in his abilities to interact
with the public, co-workers, and supervisors). Therefore, the Court finds that the ALJ
provided sufficient support for his decision to discount Dr. Owens’ opinion that Mr.
Gonzales is markedly limited in his ability to interact with others.
However, the ALJ did not explain why he gave partial weight to Dr. Owen’s
opinion that Mr. Gonzales is moderately limited in his ability to deal with stress, and the
ALJ did not account for this finding in his RFC determination. The Social Security
Administration has emphasized the importance of considering a claimant’s limitation in
the ability to deal with stress, stating that “[a]ny impairment-related limitations created
by an individual’s response to demands of work . . . must be reflected in the RFC
assessment.” SSR 85-15, 1985 WL 56857, at *6 (further noting that a claimant’s ability
to respond to the demands of work requires “thoroughness in evaluation on an
individualized basis”). In addition, a limitation to unskilled work does not account for this
limitation. See id. (explaining that “the skill level of a position is not necessarily related
to the difficulty an individual will have in meeting the demands of the job,” and “[a]
claimant’s condition may make performance of an unskilled job as difficult as an
objectively more demanding job”). The Court therefore finds the ALJ’s failure to explain
why he rejected Dr. Owen’s finding that Mr. Gonzales is moderately limited in his ability

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to deal with stress is in error. 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, 1996 WL 374184,
at *7 (“The RFC 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.”).
2. Dr. Blacharsh’s and Dr. Bridges’ Opinions
Next, Mr. Gonzales contends that the ALJ erred by failing to account for all of
the limitations found by non-examining State Agency consultants Dr. Blacharsh and Dr.
Bridges. (Doc. 20 at 18-19). Specifically, Mr. Gonzales contends that the ALJ failed to
account for Dr. Blacharsh’s and Dr. Bridges’ findings that Mr. Gonzales is limited in his
abilities to maintain attention and concentration for extended periods of time, complete a
normal workday and workweek without interruptions from psychologically based
symptoms, perform at a consistent pace without an unreasonable number and length of
rest periods, and respond appropriately to changes in the work setting. Id. Mr. Gonzales
argues that the ALJ’s “failure to include the foregoing limitations . . . resulted in an
incomplete and incorrect RFC,” and that, “had [the ALJ] properly considered the mental
limitations assessed by [Dr. Blacharsh and Dr. Bridges], Mr. Gonzales would have been
found disabled.” Id. at 19.
In response, the Commissioner states that the limitations Mr. Gonzales contends
the ALJ failed to account for were made in the “summary conclusion,” or Section I,
portion of these doctors’ assessments, and that the ALJ correctly looked at the doctors’
narrative opinions in Section III. (Doc. 22 at 10). The Commissioner argues that the

11

narrative conclusion in Section III is the formal assessment that the ALJ was required to
take into account in his RFC determination. Id. The Commissioner further contends that
the ALJ sufficiently accounted for these doctors’ findings by limiting Mr. Gonzales to
unskilled work, and that the ALJ was not required to include in the RFC moderate
limitations identified at step three. Id. at 11-12.
In Carver v. Colvin, 600 Fed. Appx. 616 (10th Cir. 2015) (unpublished), the Tenth
Circuit discussed the difference between Sections I and III of the Mental RFC
Assessment. In considering whether the ALJ erred by failing to incorporate all of the
Section I limitations in a non-examining State Agency physician’s Mental RFC
Assessment, the Tenth Circuit explained that Section I “is for recording summary
conclusions derived from the evidence in the file and directs that detailed explanation of
the degree of limitation for each category is to be recorded in Section III.” Id. at 618
(quotations and alterations omitted). That language is consistent with the Social
Security Administration’s Program Operations Manual System (“POMS”), which
“provides that Section III of the MRFC, not Section I, is for recording a medical
consultant’s formal mental RFC assessment, and that adjudicators are to use the
Section III narrative as the RFC assessment.” Id. at 618-19 (discussing POMS DI
25020.010 B.1., POMS DI 24510.060 B.4.a., and POMS DI 24510.065 A.). However,
the degree and extent of the capacity or limitation found in Section I must be described
in narrative format in Section III, and Section III should “explain the conclusions
indicated in [S]ection I, in terms of the extent to which these mental capacities or
functions could or could not be performed in work settings.” Id. at 619 (quoting POMS
DI 24510.060 B.4.a. and B.4.b.). The Tenth Circuit observed that if a consultant’s

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“Section III narrative fails to describe the effect that each of the Section I moderate
limitations would have on the claimant's ability, or if it contradicts limitations marked in
Section I, the MRFCA cannot properly be considered part of the substantial evidence
supporting an ALJ’s RFC finding.” Id. (citations omitted).
In this case, Dr. Blacharsh and Dr. Bridges conducted Mental RFC Assessments
on July 11, 2013, and December 24, 2013, respectively. (AR 125-26, 141-43, 158-59,
178-79). In Section I of the Mental RFC Assessments, they each found that Mr.
Gonzales is moderately limited in his abilities to: understand and remember detailed
instructions; carry out detailed instructions; maintain attention and concentration for
extended periods; complete a normal workday and workweek without interruptions from
psychologically based symptoms; perform at a consistent pace without an unreasonable
number and length of rest periods; and respond appropriately to changes in the work
setting. Id. In Section III of their Mental RFC Assessments, the doctors provided
narratives of their findings, and each doctor stated that, if Mr. Gonzales maintains his
sobriety, he can: understand, remember, and carry out simple instructions; make simple
decisions; attend and concentrate for two hours at a time; interact adequately with coworkers and supervisors; and respond appropriately to changes in a routine work
setting. (AR 126, 143, 159, 179). In the ALJ’s decision, he recited Dr. Blacharsh’s and
Dr. Bridges’ Section III narratives, and stated that he gave their opinions great weight.
(AR 52).
While Dr. Blacharsh and Dr. Bridges accounted for most of their Section I
findings in their Section III narratives, their Section III narratives did not address their
findings that Mr. Gonzales is moderately limited in his abilities to complete a normal

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workday and workweek without interruptions from psychologically based symptoms, and
perform at a consistent pace without an unreasonable number and length of rest
periods. Because Dr. Blacharsh’s and Dr. Bridges’ Section III narratives do not
encapsulate these limitations, the ALJ erred in relying on their opinions as substantial
evidence supporting his RFC determination. See Carver, 600 Fed. Appx. at 619
(holding that if a consultant’s “Section III narrative fails to describe the effect that each
of the Section I moderate limitations would have on the claimant’s ability, or if it
contradicts limitations marked in Section I, the MRFCA cannot properly be considered
part of the substantial evidence supporting an ALJ’s RFC finding”).
The Commissioner contends that the ALJ accounted for Mr. Gonzales’ moderate
mental limitations in his RFC determination by limiting Mr. Gonzales to unskilled work.
(Doc. 22 at 11). However, a limitation to unskilled work does not necessarily address an
individual’s mental limitations. See Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir.
2012) (explaining that unskilled work “just account[s] for issues of skill transfer, not
impairment of mental functions – which are not skills but, rather, general prerequisites
for most work at any skill level”). While the Commissioner relies on Vigil v. Colvin, 805
F.3d 1199, 1203-04 (10th Cir. 2015) for the proposition that an ALJ may account for
moderate mental limitations by restricting a claimant to unskilled work, Vigil’s holding is
not that broad. In Vigil, the ALJ determined at step three of the SEP that the claimant
was limited in his concentration, persistence, and pace, but reasoned at step four that
the claimant retained enough memory and concentration to perform simple tasks and
limited the claimant to unskilled work. 805 F.3d at 1203. The Tenth Circuit held that the
ALJ sufficiently accounted for the step-three limitations by limiting the claimant to

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unskilled work, reasoning that the limitations identified by the ALJ at step three “are not
an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2
and 3 of the sequential evaluation process.” Id. at 1204 (quoting SSR 96-8p, 1996 WL
374184, at *4 (July 2, 1996)).
Here, however, the issue is not whether the ALJ adequately accounted for
findings the ALJ made at step three. Instead, the issue before the Court is whether the
ALJ properly considered the limitations found by Dr. Blacharsh and Dr. Bridges in their
Mental RFC Assessments. In addition, the limitations at issue in this case (Mr.
Gonzales’ abilities to complete a normal workday and workweek, and to perform at a
consistent pace without an unreasonable number and length of rest periods), are
treated differently than the broader limitations at issue in Vigil (concentration,
persistence, and pace). Importantly, the Social Security Administration’s Program
Operations Manual explains that a claimant’s abilities to complete a normal workday
and workweek without interruptions from psychologically based symptoms, and to
perform at a consistent pace without an unreasonable number and length of rest
periods, are not only required for any job, but are critical for performing unskilled work.
See POMS DI 25020.010 (Mental Limitations) (further noting that these specific
requirements “are usually strict”). Therefore, the Court finds that the ALJ’s limitation to
unskilled work does not sufficiently account for Dr. Blacharsh’s and Dr. Bridges’
findings.
Finally, the Commissioner contends that the ALJ was not required to include
moderate limitations in the RFC determination that were identified in the “paragraph B”

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criteria of the step three analysis. (Doc. 22 at 12).2 The Commissioner is correct that
ALJs are not necessarily required to include limitations found at steps two and three of
the SEP in their RFC assessments. See SSR 96-8p, 1996 WL 374184, at *4 (“[T]he
limitations identified in the ‘paragraph B’ . . . criteria [of the Psychiatric Review
Technique Form] are not an RFC assessment but are used to rate the severity of
mental impairment(s) at steps 2 and 3 of the sequential evaluation process.”). However,
as explained above, the issue before the Court is not whether the RFC includes
limitations found at step three, but is whether the ALJ properly considered the limitations
found by Dr. Blacharsh and Dr. Bridges in their Mental RFC Assessments. See id. (“The
mental RFC assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment by itemizing various functions contained in the
broad categories found in paragraphs B and C of the adult mental disorders listings . . .
and summarized on the [Psychiatric Review Technique Form].”). Regardless of the
limitations identified at step three, the ALJ was required to properly consider the medical
opinions in the record. See 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c), and SSR 966p, 1996 WL 374180 (ALJs must evaluate every medical opinion in the record, including
the opinions of non-examining State Agency physicians).
Based on the foregoing, the Court finds that Dr. Blacharsh and Dr. Bridges did
not include all of their Section I limitations in their Section III narratives, and the ALJ
failed to account for those limitations in his RFC determination. Therefore, the Court
finds that the ALJ implicitly rejected Dr. Blacharsh’s and Dr. Bridges’ findings regarding

2

“Paragraph B” criteria are used by the ALJ to determine whether the claimant meets a mental
impairment listing at step three, and the criteria are: “[a]ctivities of daily living; social functioning;
concentration, persistence, or pace; or episodes of decompensation.” 20 C.F.R. pt. 404, subpt. P, App. 1,
Listing 12.00C - Mental Disorders.

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Mr. Gonzales’ limitations in completing a normal workday and workweek without
interruptions from psychologically based symptoms, and performing at a consistent
pace without an unreasonable number and length of rest periods, despite stating that he
gave great weight to their opinions, which is legal error. See SSR 96-8p, 1996 WL
374184, at *7 (ALJs “must . . . explain how any material inconsistencies or ambiguities
in the evidence in the case record were considered and resolved.”).
V.

Conclusion

For the reasons stated above, the Court finds that the ALJ did not properly
consider the opinions of Dr. Blacharsh and Dr. Bridges and part of Dr. Owen’s opinion.
The Court does not address Mr. Gonzales’ claim that the ALJ erred at step five because
that claim may become moot upon remand. In addition, the Court does not decide the
issue of whether the Appeals Council erred in its consideration of evidence that was
submitted after the ALJ’s decision as that evidence will become part of the record on
remand. The Court directs the ALJ, on remand, to weigh all medical evidence in the
record.
IT IS THEREFORE ORDERED that Mr. Gonzales’ Motion to Reverse And Remand
For Rehearing With Supporting Memorandum, (Doc. 20), is GRANTED.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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