Chavez v. Social Security Administration
ORDER by Magistrate Judge Kevin R. Sweazea granting 24 Motion to Remand to Agency (cbf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KIMBERLY S. CHAVEZ,
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
ORDER GRANTING MOTION TO REMAND AND REMANDING
MATTER TO AGENCY FOR ADDITIONAL PROCEEDINGS
Plaintiff Kimberly Chavez seeks review of the Social Security Administration’s denial of
her application for disability insurance benefits. 1 See 42 U.S.C. § 423. With the consent of the
parties to conduct dispositive proceedings, see 28 U.S.C. § 636(c), the Court has reviewed the
administrative record and considered Chavez’s motion to remand and supporting memorandum,
the agency’s response in opposition, and Chavez’ reply. (See Docs. 25, 26, & 29). Having done
so, the Court concludes that the Administrate Law Judge (“ALJ”) committed reversible error in
evaluating whether Chavez’s intellectual impairment meets or equals Listing 12.05C and Chavez
is, as a result, per se disabled under the Social Security Act. Accordingly, the Court GRANTS
Chavez’s motion and REMANDS the matter for additional proceedings.
Chavez alleged disability as of August 5, 2011 at age 27 arising from her intellectual
functioning and continuing until December 31, 2016, the date she last qualified for benefits. (AR
13; 15). Following a hearing, ALJ Barry O’Melinn denied Chavez’s application for benefits. (AR
Chavez also applied for supplemental security income, but abandoned that claim during the administrative hearing.
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13-22). At step three of the five-part framework 2 used to evaluate disability, the ALJ concluded
that Chavez’s borderline intellectual functioning, although a severe impairment, did not meet or
equal Listing 12.05C. (AR 17). A finding that this impairment satisfied Listing12.05C would
have required an award of benefits for an “intellectual disorder.” (Id.); 20 C.F.R. part 404, subpt
P, app. 1, § 12.05. At step four, the ALJ determined that Chavez retained the residual functional
capacity (“RFC”) to perform her past work as a cook’s helper. (AR 21). Since Chavez was
capable of performing this job, the ALJ did not proceed to step five of the sequential process.
(AR 21-22). The ALJ’s adverse determination became the agency’s final action when the
Appeals Council denied review on November 9, 2016. (AR 1-7).
II. STANDARD OF REVIEW
This Court reviews the ALJ’s decision to determine whether it is supported by substantial
evidence and the ALJ applied the correct legal standards. See Hendron v. Colvin, 767 F.3d 951,
954 (10th Cir. 2014). If substantial evidence supports the conclusion that the plaintiff is not
disabled and the ALJ followed the law, the plaintiff is not entitled to relief. See Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term “substantial evidence” means that
which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 1118
(citation and internal quotation marks omitted). Even if the Court could reach the opposite
conclusion, the decision must stand if the record as a whole is not “overwhelmed by other
The five-part sequential analysis is used to determine disability where, as here, a plaintiff’s application has been
denied both initially and on reconsideration. See 20 C.F.R. §§ 416.920(a)(4)(i) – (iv); 404.1520(a)(4)(i)-(v). The
framework asks whether the plaintiff (1) has engaged in “substantial gainful activity” (Step 1); (2) has a “severe
medically determinable . . . impairment . . . or a combination of impairments” that either has lasted or is expected to
last at least one year (Step 2); (3) has impairments that meet or equal one of the presumptively disabling
impairments the agency has listed (Step 3); (4) is unable to perform her “past relevant work” (Step 4); and (5)
retains the residual functional capacity to perform work in the national economy in light of her age, education, and
work experience (Step 5). Id. The parties do not challenge the ALJ’s determination that Chavez has not engaged in
substantial gainful activity since his onset date and that she suffers from a severe impairment at steps one and two
respectively. For the sake of brevity, the Court does not further recount the analytic framework.
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evidence” to the contrary or unless a “mere scintilla” supports it. Salazar v. Barnhart, 468 F.3d
615, 621 (10th Cir. 2006).
Chavez makes three arguments in support of remand: (1) the ALJ erred at step three in
concluding that Chavez’s intellectual functioning did not meet or equal Listing 12.05C; (2) the
ALJ improperly evaluated the opinions of consulting psychologist, Mary Loescher, Ph.D., and
the state agency doctors in fashioning Chavez’s RFC; and (3) the ALJ’s RFC errors improperly
tainted the testimony of the vocational expert during the administrative hearing. Because the
Court concludes that the ALJ employed the incorrect legal standard in evaluating whether
Chavez satisfied Listing 12.05C and will have to reexamine Dr. Loescher’s opinion on remand in
connection with performing the correct analysis, the Court does not reach Chavez’s other
assignments of error.
A. Step-Three Determination
Listing 12.05C mandates a finding of disability where the plaintiff proves “[a] valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment
imposing additional and significant work-related limitation of function.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 12.05C. To qualify, Chavez must prove not only that her intellectual
impairment “me[t] all of the specified medical criteria,” but that she also displayed “significantly
subaverage general intellectual functioning with deficits in adaptive functioning initially
manifested . . . before age 22” as encompassed in Listing 12.05’s so-called capsule definition.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir.
2009). “An impairment that manifests only some of [the Listing’s] criteria, no matter how
severely, does not qualify.” Id. In determining whether a plaintiff satisfies a Listing, the ALJ
may consider only medical evidence. See 20 C.F.R. § 404.1526(b). Moreover, the ALJ must
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“set out specific findings and . . . reasons for accepting or rejecting evidence at step 3.” Clifton v.
Charter, 79 F.3d 1007, 1009 (10th Cir. 1996). Here, the parties do not dispute that Chavez’s
full-scale IQ score falls within the range. Thus, the dispute focuses on whether Chavez satisfied
the capsule definition and proved she suffered from a qualifying “other mental health
impairment” in addition to her low quotient score.
The Commissioner argues that “[s]ubstantial evidence supports a finding that [Chavez]
did not have significantly subaverage general intellectual functioning with deficits in adaptive
functionally initially before 22, as required by the listing.” (Doc. 26, p. 6) This contention lacks
merit for a simple reason. The ALJ did not make any findings as to the capsule definition at all,
which means the Court cannot undertake the substantial-evidence inquiry or otherwise analyze
the issue in the first place. See Havenar v. Astrue, 438 Fed. Appx. 696, 699 (10th Cir. 2011)
(explaining that the “ALJ never made any findings regarding the capsule definition, and it would
be beyond the scope of appellate review to make such a finding in the first instance”) (citing
Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007)). For the Court to consider the merits
of the Government’s argument would require the Court to create “an impermissible post-hoc
justification for the ALJ’s deficient explanation.” Id. Because the ALJ did not hold Chavez to
the capsule definition, the Court declines to do so for the first time on appeal.
Other qualifying impairment
The entirety of the ALJ’s 12.05C analysis reads:
Finally, the “paragraph C” criteria of listing 12.05 are not met because [Chavez]
does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant work
related limitation of function.
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(AR 19) (emphasis in the original). To the extent the ALJ concluded that Chavez does not
satisfy the IQ threshold, the ALJ is incorrect. The parties do no dispute, and the ALJ’s decision
elsewhere reflects, that Chavez had a full-scale IQ of 61. Nonetheless, the Court construes the
ALJ’s boldface as emphasizing what follows the coordinating conjunction—the absence of a
separate and distinct “mental impairment imposing additional significant work-related limitation
of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C.
Agency regulations do not define “additional significant work-related limitation of
function.” The Tenth Circuit, however, has clarified that the inquiry is the same as at step two of
the sequential evaluation process where the plaintiff must prove a “severe” impairment. Hinkle
v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Although the plaintiff is required to establish
“more than the mere presence of a condition or ailment,” the burden is “de minimis” and the
condition need not be “independently disabling.” Id. Under agency guidelines “[a] claim may be
denied at step two only if the evidence shows that the individual’s impairments . . . do not have
more than a minimal effect on the person’s . . . mental ability(ies) to perform basic work
activities.” SSR 85-28, 1985 WL 56856, *3. Moreover, “[i]f such a finding is not clearly
established by medical evidence . . . adjudication must continue through the sequential
evaluation process.” Id. In this case, Chavez claims that her depression satisfies this standard.
Applying Tenth Circuit precedent and agency guidance, ALJ O’Melinn’s analysis of
Listing 12.05C is deficient. The ALJ’s single-sentence discussion did not consider depression as
Chavez’s other qualifying impairment, let alone mention or discuss Dr. Loescher’s diagnosis of
depressive disorder; assignment of Global Assessment-of-Functioning score of 50, which
suggests serious impairment in social, occupational, or school function, such as inability to keep
a job; and opinion that Chavez had moderate limitation in the ability to carry out simple
instructions. (AR 247). Although the ALJ did consider Chavez’s anxiety and depression in
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combination when independently evaluating whether those conditions were severe at step two,
the ALJ misapplied the applicable legal standard, which is reversible error. See Hendron, 767
F.3d at 954. Contrary to the ALJ’s assertion that Chavez must show her “depression or anxiety,
singly or in combination, are disabling conditions preventing her from working on a regular and
sustained basis,” the second-step analysis ends only if the medical evidence “clearly establishes”
Chavez’s depression does no more than minimally interfere with her ability to perform basic
work activities. See SSR 85-28, 1985 WL 56856, *3. In other words, the ALJ held Chavez to a
much more stringent burden—proof that her depression precluded sustained work rather than the
“de minimis” showing of something more than “minimal interference” with “work activities.” Id.
Even had ALJ O’Melinn applied the correct burden, Dr. Loescher assessed Chavez as
moderately limited in her ability to carry out simple instructions. Accord SSR 85-28, 1985 WL
56856, *3 (explaining that at step two that basic work activities include “understanding, carrying
out, and remembering simple instructions.”) Id. This piece of medical evidence by itself
suggests that Chavez met the step-two severity requirement. When fashioning Chavez’s RFC,
the ALJ acknowledged—and even purported to give some weight to—Dr. Loescher’s
assessment, including Chavez’s GAF score of 50, which the ALJ conceded “indicates serious
symptoms or serious difficulties functioning.” (AR 21). Even though the ALJ did not ultimately
include Dr. Loesher’s limitations in the RFC for reasons known only to the ALJ, Dr. Loescher’s
assessment still had value under the “de minimis” proof standard applicable to the otherqualifying-impairment prong of Listing 12.05C. 3 See Hinkle, 132 F.3d at 1352 (explaining that
The Court is cognizant that Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005) allows the Court to
examine the ALJ’s findings at steps four and five to determine whether a failure to give supported reasons at step
three constitutes “harmless error.” The Commissioner makes this argument in defending the ALJ’s decision. The
Court does not find it persuasive here for the reasons stated above—the ALJ did not make “thorough” and “clear”
findings as to what part of Dr. Loescher’s opinion he gave some weight and if the weight he gave to the opinion
included accepting the GAF score or the moderate limitations on simple instructions, why those assessments would
not satisfy 12.05C’s “de minimis” burden for proving another qualifying impairment. More generally, the ALJ does
not offer any legitimate reason tied to the applicable regulatory factors for rejecting the portions of Dr. Loescher’s
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“step four requires a more detailed analysis . . . than is required at step two as the ALJ must
specifically analyze the impact the impairments have on the claimant's ability to do the work he
has previously done).
There may have been reasons to disregard Dr. Loescher’s opinion in analyzing the
severity of Chavez’s depression under Listing 12.05C, but the ALJ was required to set out
specific findings when evaluating step three. The ALJ did not do so, and the Court remands the
matter for the ALJ to apply the correct legal standard and make specific findings as required.
For the reasons stated above, the ALJ erred in evaluating whether Chavez satisfied
Listing 12.05C at step three of the sequential analysis. IT IS, THEREFORE, ORDERED that
Chavez’s motion to remand (Doc. 24) is GRANTED and the case is REMANDED to the
agency for additional proceedings consistent with this order.
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
opinion that led to the assignment of only some weight, even assuming the Court could follow the ALJ’s reasoning.
See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (requiring the ALJ to consider “(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”) (citing 20 C.F.R. §
404.1527)). Thus, harmless error does not save the ALJ’s deficient analysis at step three.
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