Jaquez v. Social Security Administration

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 16 Plaintiff's Motion to Remand to Agency (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAYMOND JAQUEZ,
Plaintiff,
v.

No. 16-cv-1399 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum [Doc. 16] (“Motion”), filed on July 11, 2017. The
Commissioner responded on September 18, 2017. [Doc. 20]. Plaintiff replied on October 2,
2017. [Doc. 21]. The parties have consented to the undersigned’s entering final judgment in this
case. [Doc. 8]. Having meticulously reviewed the entire record and being fully advised in the
premises, the Court finds that the Administrative Law Judge (“ALJ”) impermissibly failed to
explain why he rejected portions of Dr. Walker’s and Dr. Castro’s opinions. Accordingly, the
Motion will be granted and the case remanded for further proceedings. See 42 U.S.C. § 405(g)
(sentence four).
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
the Commissioner’s findings and the correct legal standards were applied, the Commissioner’s
decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116,
1118 (10th Cir. 2004). Courts must meticulously review the entire record, but may neither
reweigh the evidence nor substitute their judgment for that of the Commissioner. Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. The 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.” Id. While a court may not re-weigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the [Commissioner]’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] 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)).
“The failure to apply the correct legal standard or to provide this court with a sufficient
basis to determine that appropriate legal principles have been followed is grounds for reversal.”
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).

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A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, 20 C.F.R. §§ 404.981; 416.1481. This case fits the general framework, and therefore, the Court reviews
the ALJ’s decision as the Commissioner’s final decision.

2

Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that he 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a
five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482
U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show:
(1) he is not engaged in “substantial gainful activity”; and (2) he 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 (3) his impairment(s) either meet or equal one of the “Listings”3
of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.”
20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399 F.3d at 1261. If he cannot
show that his impairment meets or equals a Listing, but he proves that he is unable to perform his
“past relevant work,” the burden of proof then shifts to the Commissioner, at step five, to show
that the claimant is able to perform other work in the national economy, considering his residual
functional capacity (“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

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

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Procedural Background
Plaintiff applied for a period of disability and disability insurance benefits on July 6,
2012, and for supplemental security income on September 26, 2012. Tr. 10. He alleged a
disability-onset date of January 1, 2007.

Id.

His claims were denied initially and on

reconsideration. Id. Plaintiff requested a hearing before an ALJ. Id. ALJ Barry O’Melinn held
a hearing on April 20, 2015, in Albuquerque, New Mexico. Tr. 10, 46−74. Plaintiff appeared in
person and was represented by an attorney. Tr. 10, 46, 49. The ALJ heard testimony from
Plaintiff and an impartial vocational expert, Leslie J. White. Tr. 10, 68–73.
The ALJ issued his unfavorable decision on June 23, 2015. Tr. 23. Initially, the ALJ
found that Plaintiff met the insured status requirements through December 31, 2009. Tr. 12. At
step one he found that Plaintiff had not engaged in substantial gainful activity since the onset
date of his alleged disability. Id. Because Plaintiff had not engaged in substantial gainful
activity for at least 12 months, the ALJ proceeded to step two. Id. There he found that Plaintiff
suffered from the following severe impairments: “affective disorder; anxiety; schizophrenia;
obesity; right shoulder disorder; back disorder; and hepatitis c.” Id. At step three the ALJ
determined that none of Plaintiff’s impairments, alone or in combination, met or medically
equaled a Listing. Tr. 13–15.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC. Tr. 15–20. The ALJ found that:
[Plaintiff] has the [RFC] to perform light work as defined in
20 [C.F.R. §§] 404.1567(b) and 416.967(b), occasionally lifting
and/or carrying up to 20 pounds, frequently lifting and/or carrying
up to 10 pounds, standing and/or walking with normal breaks for a
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total of at least six hours in an eight hour workday, sitting for at
least six hours in an eight hour work day. [Plaintiff] is limited to
never climbing ladders, ropes, or scaffolds, but could frequently
climb ramps or stairs. [Plaintiff] has no limitation in the ability to
balance, but could only occasionally stoop, frequently kneel,
occasionally crouch, and frequently crawl. Additionally, [Plaintiff]
is limited to frequent bilateral overhead reaching. [Plaintiff]’s
push and pull operation of hand and foot controls is unlimited,
except as limited in lifting or carrying. Moreover, [Plaintiff] is
limited to understanding, remembering, and carrying out simple
instructions and making commensurate work-related decisions.
[Plaintiff] can respond appropriately to supervision, co-workers,
and work situations, deal with routine changes in work setting,
maintain concentration, persistence and pace for up to and
including two hours at a time, with normal breaks throughout a
normal workday. Furthermore, [Plaintiff] is suitable for positions
requiting no interaction with the public. [Plaintiff] can be around
co-workers throughout the day, however, he must have only
occasional interaction with co-workers.
Tr. 15. At step four the ALJ found that Plaintiff could not return to his past relevant work.
Tr. 20. Proceeding to step five, the ALJ considered Plaintiff’s RFC, age, education, and work
experience. He found that Plaintiff could perform work that exists in significant numbers in the
national economy and, therefore, was not disabled. Tr. 21–22. Plaintiff requested review from
the Appeals Council, but that request was denied on October 24, 2016. Tr. 1. Plaintiff timely
filed the instant action on December 23, 2016. [Doc. 1].
Analysis
Remand is warranted because the ALJ erred in failing to explain why he rejected
Dr. Walker’s and Dr. Castro’s assessments of certain moderate limitations. The Court declines
to pass on Plaintiff’s other alleged errors at this time.

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Although ALJs need not discuss every piece of evidence, they are required to discuss the
weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). That is, when
assessing a plaintiff’s RFC, an ALJ must explain what weight he assigns to each opinion and
why. Id. “[T]here is no requirement in the regulations for a direct correspondence between an
RFC finding and a specific medical opinion on [a specific] functional capacity . . . because the
ALJ, not a physician, is charged with determining a claimant’s RFC from the medical record.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (alteration and internal quotation marks
omitted)); see Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (same). Nevertheless, “[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.” Chapo, 682 F.3d at 1292 (internal
brackets omitted) (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). ALJs are
required to provide “appropriate explanations for accepting or rejecting such opinions.”
SSR 96-5p, 1996 WL 374183, at *5 (emphasis added); see Keyes-Zachary, 695 F.3d at 1161
(same) (citing 20 C.F.R. § 404.1527(e)(2)(ii)). “If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the opinion was not adopted.”
SSR 96-8p, 1996 SSR LEXIS 5, at *20, 1996 WL 374184, at *7. The ALJ’s reasons must be
specific and legitimate. Chapo, 682 F.3d at 1291.
Dr. Walker offered a non-examining opinion that Plaintiff had a marked limitation in the
ability to interact with the public and moderate limitations in more than a dozen other areas.
Tr. 88–89, 104–05. Dr. Castro agreed with Dr. Walker and found the same limitations. Tr. 122–
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23, 140–41. The ALJ gave “great weight” to these opinions. Tr. 19. Plaintiff argues that the
ALJ ignored the majority of these limitations; he neither incorporated them into the RFC, nor
explained their omission. [Doc. 16] at 15–17. Therefore, as Plaintiff sees it, the ALJ failed to
apply the correct legal standard in weighing Dr. Walker’s and Dr. Castro’s opinions. Id. The
Court agrees.
There is no authority permitting
an ALJ to ignore any portion of a doctor’s opinion.
Defendant’s arguments in support of the ALJ’s decision are unpersuasive. [Doc. 20]
at 10–16. Defendant points to the agency’s Program Operations Manual Systems (“POMS”),
discussing the Mental Residual Functional Capacity Assessment (“MRFCA”) form on which
Dr. Walker’s and Dr. Castro’s opinions are recorded. The POMS explains that Section I of the
MRFCA form is “‘merely a worksheet’ designed to record summary conclusions regarding the
general degree of limitations as well as the adequacy of documentation but it ‘does not constitute
the RFC assessment.’” [Doc. 20] at 12 (quoting POMS DI § 24510.060 (emphasis in POMS,
Defendant’s alteration omitted)). Section III of the form is where the medical consultant records
the actual mental RFC assessment. Id. Thus, Defendant apparently argues that the ALJ was
permitted to ignore the doctors’ Section I findings as long as he addressed the Section III
findings. Id. This is incorrect. Defendant misrepresents the POMS. There is, in fact, no
authority permitting an ALJ to rely on the Section III findings to the exclusion of the Section I
findings. The Court rejects the argument.
Preliminarily, neither Dr. Walker’s nor Dr. Castro’s opinion contains a “Section I” or
“Section III.” Tr. 88–89 and 104–05 (Dr. Walker’s opinion), 122–23 and 140–41 (Dr. Castro’s
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opinion). Although the reports are entitled “Mental Residual Functional Capacity Assessment,”
Tr. 88, 103, 121, 139, the reports are not recorded in the format that has been traditionally used.
In the past, a doctor’s MRFCA was recorded on a stand-alone form. That form contained
sections that were labeled I, II, and III. It is these sections to which Defendant’s argument refers.
In this case, however, neither Dr. Walker’s, nor Dr. Castro’s MRFCA was recorded on
the traditional stand-alone form with Sections I, II, and III. Rather, MRFCAs were recorded
using the new Electronic Claims Tool (“eCAT”). Tr. 88–90 and 103–06 (Dr. Walker’s opinion),
121–24 and 139–42 (Dr. Castro’s opinion). The MRFCAs, as recorded in eCAT, contain neither
a “Section I,” nor a “Section III.” Id. There simply is nothing on the doctor’s reports reflecting
any “Section.” Id. Having reviewed hundreds of these forms in the past, the Court can make an
educated guess as to which portions of the MRFCAs might constitute the Section I and
Section III findings in the traditional form. However, the Court cannot agree with Defendant
that in this case, the ALJ was permitted to ignore the “Section I” findings when there is no
“Section I” in either Dr. Walker’s or Dr. Castro’s report.
More to the point, there simply is no authority permitting an ALJ to ignore any portion of
a doctor’s opinion, regardless of whether it is labeled as “Section I” or not. Silva v. Colvin, 203
F. Supp. 3d 1153 (D.N.M. 2016) (thoroughly explaining the multiple sources of authority
requiring ALJs to evaluate source opinions in their entirety and rejecting the argument that an
ALJ may ignore any portion of an opinion). “The POMS’ distinction between Section I and
Section III is aimed at the doctor who completes the MRFCA form; it is not material to how the
ALJ weighs the nonexamining opinion.” Silva, 203 F. Supp. 3d at 1159 (emphasis added). To
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the contrary, the POMS explicitly and repeatedly requires the ALJ to consider nonexamining
opinions in their entirety. Silva, 203 F. Supp. 3d at 1160–61 (surveying and discussing the
authorities and citing e.g., POMS § DI 24515.007(1)(b) (“All evidence from nonexamining
sources is opinion evidence.”)).
Like the POMS, the regulations also belie Defendant’s position. Id. at 1161–62 (citing
20 C.F.R. §§ 404.1527(e)(2)(i), 404.1512(b)(1)(viii)).

The regulations require the ALJ to

consider the doctor’s opinion in its entirety. There is no exception for the Section I findings.
In line with the POMS and the regulations, the case law also requires the ALJ to consider
a doctor’s opinion in its entirety. For example, in Haga v. Astrue, the Tenth Circuit held that an
ALJ erred in failing to explain why he adopted some of a consultative examiner’s (“CE”)
restrictions but rejected others. 482 F.3d 1205, 1208 (10th Cir. 2007). “[T]he ALJ did not state
that any evidence conflicted with [the CE’s] opinion or mental RFC assessment. So it is simply
unexplained why the ALJ adopted some of [the CE’s] restrictions but not others.” Id. The court,
therefore, remanded “so that the ALJ [could] explain the evidentiary support for his RFC
determination.” Id. Later, the Tenth Circuit expressly applied Haga and its reasoning to the
opinions of nonexamining physicians in Frantz v. Astrue, 509 F.3d 1299, 1302–03 (10th Cir.
2007).
Defendant does not address Haga or Frantz. See [Doc. 24]. Instead, she cites to one case
that, if read in a vacuum, could be misinterpreted as licensing an ALJ to ignore findings that are
recorded in Section I. [Doc. 20] at 13 (citing Smith, 821 F.3d at 1269 n.2 “[The ALJ] did not
repeat the moderate limitations assessed by the doctor. But both administrative law judges
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incorporated these limitations by stating how the claimant was limited in the ability to perform
work-related activities.”). Considering the POMS, the regulations, and Haga and Frantz, the
Court cannot interpret the relevant case law as supporting Defendant’s argument that the ALJ in
this case was permitted to give great weight to Dr. Walker’s and Dr. Castro’s opinions, without
explaining why he did not account for their Section I findings in his RFC assessment.
The ALJ’s RFC assessment fails to adequately
account for Dr. Walker’s and Dr. Castro’s Section I findings.
If the limitations assessed by the doctors in Section I had been accounted for in
Section III of their reports, then Defendant’s argument might be more persuasive. See Nelson v.
Colvin, No. 15-6226, 655 Fed. App’x 626 (referring to the doctor’s Section I findings versus his
Section III findings but ultimately deciding that the ALJ’s RFC accounted for all of the Section I
findings (as opposed to finding that the ALJ was free to disregard the Section I findings
entirely)).4 An ALJ may rely exclusively on the Section III findings only with an essential
caveat: the Section III findings must adequately account for the Section I findings.

4

See also Lee v. Colvin, 631 Fed. App’x 538, 541 (10th Cir. 2015) (finding that the POMS’ distinction between the
purposes of Section I and Section III “does not mean, of course, that the ALJ should turn a blind eye to any
moderate limitations enumerated in Section I that are not adequately explained in Section III.”) (emphases omitted);
Fulton v. Colvin, 631 F. App’x 498, 502 (10th Cir. 2015) (“Where a psychologist’s Section III narrative does not
contradict any Section I limitations and describes the effect each Section I limitation would have on the claimant’s
mental RFC, the ALJ may properly look to only the Section III narrative as the psychologist’s opinion regarding
mental RFC. The ALJ did so here . . . . And we do not see any contradiction between Sections I and III of Dr.
Kendall’s [report] or any failure to describe in Section III the effects of any Section I limitations on [the plaintiff]’s
capacity for work.”) (internal citations omitted); Carver v. Colvin, 600 F. App’x 616, 618–19 (10th Cir. 2015)
(acknowledging the POMS’ distinction between Section I and Section III, but holding that an ALJ may not “turn a
blind eye to moderate Section I limitations,” and ultimately finding that the Section I limitations at issue were
accounted for in the Section III findings); Jaramillo v. Colvin, 576 F. App’x 870, 874 (10th Cir. 2014)
(acknowledging the POMS’ distinction between Section I and Section III, analyzing whether the ALJ’s RFC
(presented to the VE in a hypothetical question) “adequately account[ed]” for the Section I findings, and ultimately
finding that the Section I limitations at issue were accounted for in the ALJ’s RFC).

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In that vein, Defendant argues that, here, the ALJ’s RFC assessment adequately
accounted for all of the moderate (and marked) limitations recorded in the doctors’ reports.
[Doc. 20] at 14–15.
First, Defendant argues that the doctors’ assessment of moderate limitation in the ability
to “sustain an ordinary routine without special supervision” is adequately accounted for in the
ALJ’s “limiting Plaintiff to simple instructions and [simple] work-related decisions and finding
that he could respond appropriately to supervision, coworkers, and work situations and maintain
concentration, persistence, and pace for up to and including two hours at a time, with normal
breaks, throughout a workday.” [Doc. 20] at 14 (citing Tr. 15–20). Second, Defendant argues
that the doctors’ assessment of moderate limitation in the ability to “accept instructions and
respond appropriately to criticism from supervisors” is accounted for in the ALJ’s limitation to
only occasional interaction with coworkers. [Doc 20] at 14–15. Third, Defendant argues that the
doctors’ assessment of moderate limitation in the ability to “respond appropriately to changes in
the work setting” is accounted for in the ALJ’s finding that Plaintiff could deal with routine
changes in a work setting. [Doc. 20] at 15.
These are all non sequiturs. Defendant offers no legal support for these arguments.
Besides, the POMS contradict her position. The ALJ limited Plaintiff to light, unskilled work.5
Tr. 15. However, three of the mental abilities “critical” for performing unskilled work are the
ability to (1) “sustain an ordinary routine without special supervision,” (2) “accept instructions
and respond appropriately to criticism from supervisors,” and (3) “respond appropriately to
5

The ALJ’s RFC in this case tracks the mental demands of “unskilled” work. Compare Tr. 15 (RFC assessment),
with POMS § DI 25020.010(A)(3), (B)(2) (describing the “mental demands of unskilled work” and the “mental
abilities needed for any job).

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changes in the work setting.” POMS DI § 25020.010(B)(3)(f), (k), and (m). Drs. Walker and
Castro agreed that Plaintiff was moderately limited in these areas. It was reversible error for the
ALJ to purportedly adopt the doctors’ opinions while assessing an RFC that conflicted with
them.

The ALJ failed to apply the correct legal standard in evaluating the opinions of

Dr. Walker and Dr. Castro.
The jobs identified by the VE conflict with
certain of Dr. Walker’s and Dr. Castro’s Section I findings.
Finally, Defendant argues that even if the ALJ’s RFC assessment failed to account for all
of the doctors’ Section I findings, the error would not change the outcome of the case because
Plaintiff could still perform the jobs identified by the VE. [Doc. 20] at 15–16. Defendant argues
that those jobs do not require “social interaction” or “significant interaction with others (i.e., no
significant taking of instructions or helping others).” Id. at 15 (citing to the Dictionary of
Occupational Titles).

The Court is not persuaded. Defendant acknowledges that the jobs

identified by the VE are unskilled. Id. As explained above, the doctors opined that Plaintiff had
several moderate limitations in areas “critical” for the performance of unskilled work. The
ALJ’s decision, therefore, cannot stand without some explanation for why he rejected these
medical opinions. Remand is warranted.
Conclusion
The ALJ erred in failing to explain why he rejected Dr. Walker’s and Dr. Castro’s
assessments of certain moderate limitations. Remand is warranted on that ground, and the Court
declines to address Plaintiff’s other alleged errors at this time.

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IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 16] is
GRANTED. The Commissioner’s final decision is reversed, and this case is remanded for
further proceedings in accordance with this opinion.
IT IS SO ORDERED.

____________________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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