Martinez v. Social Security Administration

Filing 23

ORDER by Magistrate Judge Steven C. Yarbrough granting 16 Motion to Remand to Agency. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LAWRENCE R. MARTINEZ,
Plaintiff,
v.

Civ. No. 16-1307 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER is before the Court on Plaintiff Lawrence Martinez’s Motion to
Remand to Agency for Rehearing. Doc. 16. For the reasons discussed below, the Court will
GRANT Plaintiff’s motion and remand this action to the Commissioner for further proceedings
consistent with this opinion.
I.

Background

On February 5, 2013, Plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits and a Title XVI application for supplemental security
income. AR 17. Plaintiff claimed disability due to a learning disability. AR 77. Plaintiff alleged
a disability onset date of July 1, 2006. AR 77. Plaintiff’s claims were initially denied on June 10,
2013, and upon reconsideration on September 24, 2013. AR 17. Plaintiff thereafter filed a
written request for a hearing on November 12, 2013. AR 17. On July 1, 2015, the ALJ entered
his decision finding Plaintiff not disabled. AR 29. On October 3, 2016, the Appeals Council
denied Plaintiff’s request for review. AR 1. This appeal followed.
Because the parties are familiar with the record in this case, the Court will reserve
discussion of Plaintiff’s relevant medical history for its analysis.
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II.

Applicable Law

A. Disability Determination Process
A claimant is considered disabled for purposes of Social Security disability insurance
benefits if that individual 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). The Social Security Commissioner has adopted a five-step
sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R.
§ 404.1520. The steps of the analysis are as follows:
(1) Claimant must establish that she is not currently engaged in “substantial gainful
activity.” If claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or
mental impairment . . . or combination of impairments” that has lasted for at least one
year. If claimant is not so impaired, she is not disabled and the analysis stops.
(3) If claimant can establish that her impairment(s) are equivalent to a listed impairment that
has already been determined to preclude substantial gainful activity, claimant is
presumed disabled and the analysis stops.
(4) If, however, claimant’s impairment(s) are not equivalent to a listed impairment, claimant
must establish that the impairment(s) prevent her from doing her “past relevant work.”
Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence
and determines what is “the most [claimant] can still do despite [her physical and
mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant’s residual
functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the
physical and mental demands of claimant’s past work. Third, the ALJ determines
whether, given claimant’s RFC, claimant is capable of meeting those demands. A
claimant who is capable of returning to past relevant work is not disabled and the
analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that claimant is able to
“make an adjustment to other work.” If the Commissioner is unable to make that
showing, claimant is deemed disabled. If, however, the Commissioner is able to make
the required showing, the claimant is deemed not disabled.

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See 20 C.F.R. § 1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
B. Standard of Review
A court must affirm the denial of social security benefits unless (1) the decision is not
supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in
reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec’y of Health & Human Serv., 933 F.2d
799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither
reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court’s disagreement with a
decision is immaterial to the substantial evidence analysis. A decision is supported by substantial
evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as
adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a
mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] 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)).
Furthermore, even if a court agrees with a decision to deny benefits, if the ALJ’s reasons
for the decision are improper or are not articulated with sufficient particularity to allow for
judicial review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with
specific weighing of the evidence and “the record must demonstrate that the ALJ considered all
of the evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of
evidence in the record. But, it does require that the ALJ identify the evidence supporting the
decision and discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at

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1010.
III.

Analysis

Plaintiff raises three issues for review. First, Plaintiff contends that the ALJ failed to
incorporate all of his moderate limitations as opined by State agency examining and nonexamining psychologists Dr. John Owen, Dr. Kay Gale, and Dr. Howard Atkins. Second,
Plaintiff contends that the ALJ’s RFC does not include a function-by-function assessment of
Plaintiff’s work-related mental abilities. Third, Plaintiff argues that the ALJ failed to express
Plaintiff’s RFC in terms of mental functional limitations and utilized vocational conclusions as to
jobs Plaintiff could perform in the ALJ’s hypothetical to the vocational expert. Because the
Court agrees that the ALJ failed to account for Plaintiff’s moderate limitations, the Court will
grant Plaintiff’s Motion. The Court will not address Plaintiff’s remaining claims of error because
they may be affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350
F.3d 1297, 1299 (10th Cir. 2003).
Dr. John Owen performed an evaluation of Plaintiff on April 30, 2015. AR 315-19. Dr.
Owen performed a Wechsler Adult Intelligence Scale-III (WAIS-III) and a Mini Mental Status
Examination. AR 315. Dr. Owen reported that Plaintiff’s overall IQ score “fell on the cusp of
borderline/mild mental retardation” and that he has “difficulty with recall, attention, and
calculation.” AR 316. Dr. Owen additionally reported a diagnosis of adjustment disorder with
anxiety. AR 316. Dr. Owen opined that Plaintiff has moderate to marked difficulties in his ability
to understand and remember detailed or complex instructions, work without supervision, interact
with the public, and adapt to changes in the workplace. AR 317. Dr. Owen further opined that
Plaintiff has moderate limitations in his ability to carry out instructions, attend and concentrate,

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persist at tasks, interact with co-workers, interact with supervisors, and use public transportation.
AR 317.
Dr. Kay Gale completed a Mental Residual Function Report of Plaintiff on June 3, 2013.
AR 94. Dr. Gale found Plaintiff moderately limited in his ability to understand and remember
detailed instructions, carry out detailed instructions, maintain attention and concentration for
extended periods, respond appropriately to changes in the work setting, travel in unfamiliar
places or use public transportation, and set realistic goals or make plans independently of others.
AR 95. Dr. Gale further opined that Plaintiff is moderately limited in his ability to interact
appropriately with the general public. AR 95. In summation, Dr. Gale opined that Plaintiff is
able to “perform simple, repetitive, routine tasks in setting with limited contact with others.
Unskilled RFC.” AR 96. Upon reconsideration, Dr. Atkins agreed with Dr. Gale’s opinions. AR
110.
In his decision, the ALJ gave significant weight to the opinions of Dr. Owen “to the
extent that it is generally consistent with my residual functional capacity.” AR 26. Notably, the
ALJ did not explain which portions of Dr. Owen’s opinion were inconsistent with the RFC. The
ALJ also accorded significant weight to Dr. Atkins’ and Dr. Gales’ opinions with the same
caveat that his adoption of their opinions was limited to the extent that they were consistent with
the RFC. AR 26. In pertinent part, the ALJ determined that Plaintiff has the residual functional
capacity to perform a full range of work at all exertional levels subject to certain non-exertional
limitations. AR 23. The ALJ found that Plaintiff is “able to understand, carry out, and
remember simple instructions at Reasoning Level 1, but not at a production rate pace such as
assembly line work, and he may make commensurate work related decisions.” AR 23. Further,
“[h]e is able to maintain concentration, persistence, and pace for two hours at a time throughout

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the eight-hour workday with normal breaks. He may have occasional interaction with the
public.” AR 23.
Plaintiff contends that the ALJ failed to account for all the limitations Dr. Owen found.
More specifically, Plaintiff contends that the ALJ failed to incorporate Dr. Owen’s opinion that
Plaintiff has moderate to marked difficulty in his ability to work without supervision or adapt to
changes in the workplace. Plaintiff further contends that the ALJ failed to account for Dr.
Owen’s opinion that Plaintiff has moderate difficulties in his ability to carry out instructions,
attend and concentrate, persist at tasks, interact with coworkers, and interact with supervisors.
For purposes of this decision, the Court focuses on Dr. Owen’s opinion that Plaintiff has
moderate to marked limitations in his ability to work without supervision and adapt to changes in
the workplace, and moderate limitations in his ability to interact with supervisors and coworkers.
“It is improper for the ALJ to pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence.” Hardman v. Barnhart, 362
F.3d 676, 681 (10th Cir. 2004); see also Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir.
2004) (“The ALJ may not pick and choose which aspects of an uncontradicted medical opinion
to believe, relying on only those parts favorable to a finding of nondisability.”). Although an ALJ
is not required to discuss every piece of evidence, “in 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.” Clifton v. Chater, 79 F.3d
1007, 1009, 1010 (10th Cir. 1996). In Haga v. Astrue, the Tenth Circuit found reversible error
where the ALJ chose to adopt certain moderate limitations documented in a consultative
psychologist’s RFC assessment and rejected others without explanation. 482 F.3d at 1205, 1208

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(10th Cir. 2007) (“We therefore agree that the ALJ should have explained why he rejected four
of the moderate restrictions on [the] RFC assessment while appearing to adopt the others.”)
The present case is strikingly similar to Haga. As noted above, the ALJ accorded
significant weight to Dr. Owen’s opinion and accordingly incorporated limitations in the RFC
reflecting portions of Dr. Owen’s opinion. AR 26. Nevertheless, the ALJ apparently rejected,
without explanation, limitations Dr. Owen found in Plaintiff’s ability to work without
supervision, adapt to changes in the workplace, interact with coworkers, or interact with
supervisors. See AR 26. By way of example, it is notable that the ALJ limited Plaintiff to
“occasional interaction with the public” in the RFC yet completely ignored any limitations
whatsoever in his ability to interact with supervisors or coworkers. It is not readily apparent that
an individual with moderate limitations in interacting with the public would not also exhibit
limitations in regard to his interactions with co-workers and supervisors. Indeed, Dr. Gale and
Dr. Atkin opined in their RFC that Plaintiff should have limited contact with others, not just the
public as the ALJ concluded. AR 95-96. No explanation is provided by the ALJ as to why these
limitations were ignored other than that he only adopted limitations found by Dr. Owen “to the
extent that [they are] generally consistent with my residual functional capacity.” AR 26.
Furthermore, in response, Defendant offers no more than post-hoc rationalizations as to why the
ALJ might have disregarded Dr. Owen’s opinion regarding these limitations. See Doc. 18 at 1112 (discussing other evidence in the record that might have supported the ALJ’s decision to
disregard Dr. Owen’s opinion). But post-hoc rationalizations are insufficient. See id.at 1207-08
(“T]his court may not create or adopt post-hoc rationalizations to support the ALJ’s decision that
are not apparent from the ALJ’s decision itself.”). Accordingly, the ALJ failed to adequately
account for Plaintiff’s limitations and his decision must be reversed.

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IV.

Conclusion

For the foregoing reason, the Court GRANTS Plaintiff’s Motion to Remand to Agency
(Doc. 16) and remands this matter for proceedings consistent with this Opinion.

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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