Castillo-Rael v. Social Security Administration

Filing 22

ORDER by Magistrate Judge Laura Fashing granting 17 Motion to Remand to Agency. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEIDRE SIMONA CASTILLO-RAEL,
Plaintiff,
v.

1:17-cv-00014-LF

NANCY A. BERRYHILL, 1 Deputy Commissioner
for Operations of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Deidre Simona Castillo-Rael’s
Motion to Reverse and Remand for Rehearing with Supporting Memorandum (Doc. 17), which
was fully briefed on September 7, 2017. See Docs. 19, 20, 21. The parties consented to my
entering final judgment in this case. Docs. 3, 5, 6. Having meticulously reviewed the entire
record and being fully advised in the premises, I find that the Administrative Law Judge (“ALJ”)
erred by failing to properly weigh the opinions of the non-examining state agency psychologists.
I therefore GRANT Ms. Castillo-Rael’s motion and remand this case to the Commissioner for
further proceedings consistent with this opinion.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final

decision 2 is supported by substantial evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
1

Nancy A. Berryhill, the Deputy Commissioner for Operations of the Social Security
Administration, is automatically substituted for the former Acting Commissioner of the Social
Security Administration, Carolyn W. Colvin, as the defendant in this suit. FED. R. CIV. P. 25(d).
2

The 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, as it is in this case.

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). “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 and brackets omitted). The Court must meticulously review the entire record,
but may neither reweigh the evidence nor substitute its 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. A 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 the Court may not reweigh 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 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] findings from
being supported by substantial evidence.’” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or 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);
20 C.F.R. §§ 404.1505(a), 416.905(a).
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When considering a disability application, the Commissioner is required to use a fivestep 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) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the
Listings 3 of presumptively disabling impairments; or (4) the claimant is unable to perform his or
her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399
F.3d at 1260–61. If the claimant cannot show that his or her impairment meets or equals a
Listing but proves that he or she is unable to perform his or her “past relevant work,” the burden
of proof shifts to the Commissioner, at step five, to show that 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. Id.
III.

Background and Procedural History
Ms. Castillo-Rael was born in 1983, completed the eleventh grade, and later completed

an EMT program. AR 36, 207, 258. 4 She had worked loading freight on airplanes, as a loss
prevention associate, and as a personal trainer. AR 46, 258. Ms. Castillo-Rael filed applications
for disability insurance benefits and supplemental security income on June 18, 2013, alleging
disability due to post-traumatic stress disorder, anxiety, depression, and sleep apnea. AR 207–
20, 257. The Social Security Administration (“SSA”) denied her claims initially on August 13,
2013. AR 110–13. The SSA denied her claims on reconsideration on November 21, 2013. AR
3

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

4

Document 10-1 is the sealed Administrative Record (“AR”). When citing to the record, the
Court cites to the AR’s internal pagination in the lower right-hand corner of each page, rather
than to the CM/ECF document number and page.
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118–24. Ms. Castillo-Rael requested a hearing before an ALJ. AR 125–26. On October 5,
2015, ALJ Eric Weiss held a hearing. AR 28–51. ALJ Weiss issued his unfavorable decision on
December 11, 2015. AR 9–27.
At step one, the ALJ found that Ms. Castillo-Rael had not engaged in substantial, gainful
activity since the earlier of her alleged onset dates. 5 AR 14. At step two, the ALJ found that Ms.
Castillo-Rael suffered from the severe impairments of major depressive disorder, and panic
disorder with agoraphobia. Id. At step three, the ALJ found that none of Ms. Castillo-Rael’s
impairments, alone or in combination, met or medically equaled a Listing. AR 15–16. Because
the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Castillo-Rael’s
RFC. AR 16–20. The ALJ found Ms. Castillo-Rael had the RFC to
perform a full range of exertional work at all exertional levels but with the
following nonexertional limitations: Able to perform the full range of exertional
work as defined by the regulations. She is able to understand, remember and
carry out simple instructions and make commensurate work related decisions, but
not a production rate pace, in a work setting with few changes. She is able to
occasionally interact with supervisors, co-workers and the public. She is able to
maintain concentration, persistence, and pace for 2 hrs at a time during the
workday with normal breaks.
AR 16–17.
At step four, the ALJ concluded that Ms. Castillo-Rael was unable to perform her past
relevant work as an aircraft loader, a sales clerk, a personal trainer, or a surveillance systems
monitor. AR 20. The ALJ found Ms. Castillo-Rael not disabled at step five because she could
perform jobs that exist in significant numbers in the national economy—such as addresser, flat

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On her application for Disability Insurance Benefits, Ms. Castillo-Rael stated that she became
unable to work on March 1, 2013. AR 207. On her application for Supplemental Security
Income, she stated she became unable to work on April 15, 2012. AR 214.
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work tier, 6 and cleaner in an industrial setting. AR 21. On January 8, 2016, Ms. Castillo-Rael
requested review of the ALJ’s unfavorable decision by the Appeals Council. AR 7–8. On
November 30, 2016, the Appeals Council denied the request for review. AR 1–6. Ms. CastilloRael timely filed her appeal to this Court on January 9, 2017. Doc. 1. 7
IV.

Ms. Castillo-Rael’s Claims
Ms. Castillo-Rael raises five arguments for reversing and remanding this case: (1) the

ALJ failed to account for all of the moderate limitations found by consultative psychological
examiner Dr. Louis Wynne; (2) the ALJ gave invalid reasons for rejecting the opinion of treating
counselor Linda E. Friedman, LPCC; (3) the ALJ failed to properly weigh the opinions of the
non-examining state agency psychologists; (4) the ALJ relied on improper factors in setting her
RFC and finding that she was not disabled; (5) the vocational expert’s testimony was
unsupportable and unreliable. See Doc. 17. I find that the ALJ failed to properly weigh the
opinions of the non-examining state agency psychologists. Because I remand based on this error,
I do not address the other alleged errors, which “may be affected by the ALJ’s treatment of this
case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
V.

Analysis
A. The ALJ failed to properly weigh the opinions of the non-examining state agency
psychological consultants.
Ms. Castillo-Rael argues that the ALJ improperly rejected some of the moderate mental

limitations in the opinions on the non-examining agency doctors. Doc. 17 at 13–14. She

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This work involves folding, stacking, counting, and wrapping ironed flatwork “such as sheets,
pillowcases, and towels.” DOT 361.587-010, available at
https://occupationalinfo.org/36/361587010.html (last accessed May 23, 2018).
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A claimant has 60 days to file an appeal. The 60 days begins running five days after the
decision is mailed. 20 C.F.R. §§ 404.981, 416.1481; see also AR 2.
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essentially argues that the ALJ impermissibly “picked and chose” from the moderate limitations
in their opinions. Id. at 14. 8 The Commissioner did not respond directly to this claimed error.
See Doc. 19. For the reasons discussed below, the Court finds that the ALJ’s RFC assessment is
not sufficiently clear to allow for meaningful judicial review of this argument.
Although an ALJ need not discuss every piece of evidence, he or she is 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)).
Specifically, when assessing a plaintiff’s RFC, an ALJ must explain what weight is assigned to
each opinion and why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996). “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 WL 374184, at *7. “[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 also Wells v. Colvin, 727
F.3d 1061, 1071 (10th Cir. 2013) (“exact correspondence between a medical opinion and the
mental RFC is not required”). 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 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th
Cir. 2007)). An ALJ “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, 1010 (10th
Cir. 1996). Ultimately, an ALJ is required to weigh medical source opinions and to provide
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Part of Ms. Castillo-Rael’s brief appears to be missing. See Doc. 17 at 15, where the first
paragraph starts mid-sentence.
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“appropriate explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL
374183, at *5; see also Keyes-Zachary, 695 F.3d at 1161 (same) (citing 20 C.F.R. §§
404.1527(e)(2)(ii), 416.927(e)(2)(ii)).
The ALJ’s findings must be sufficiently specific to allow for meaningful review. See
Langley, 373 F.3d at 1123. If the ALJ’s decision is 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). According to SSR 96-8p, the RFC assessment
“must include a narrative discussion describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The ALJ must
also explain “how any material inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.” Id. “The RFC assessment must always consider and address
medical source opinions. If the RFC assessment conflicts with an opinion from a medical
source, the [ALJ] must explain why the opinion was not adopted.” Id. When the ALJ fails to
provide an adequate narrative discussion describing how the evidence supports each conclusion,
citing to specific medical facts and nonmedical evidence, the court will conclude that his RFC
conclusions are not supported by substantial evidence. See Southard v. Barnhart, 72 F. App’x
781, 785 (10th Cir. 2003) (unpublished) (“Because the ALJ failed to make all the detailed
findings required by the regulations and rulings at step four, his RFC conclusions are not
supported by substantial evidence.”).
On August 12, 2013, state agency psychologist Julian Lev, Ph.D. completed a Mental
Residual Functional Capacity Assessment (“MRFCA”), opining that Ms. Castillo-Rael had the
following limitations:

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Moderate limitation in the ability to understand and remember detailed instructions;
Moderate limitation in the ability to carry out detailed instructions;
Moderate limitation in the ability to maintain attention and concentration for extended
periods;
Moderate limitation in the ability to work in coordination with or in proximity to
others without being distracted by them;
Moderate limitation in the ability 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;
Moderate limitation in the ability to accept instructions and respond appropriately to
criticism from supervisors;
Moderate limitation in the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes;
Moderate limitation in the ability to respond to changes in the work setting;
Moderate limitation in the ability to set realistic goals or make plans independently of
others.

AR 63–65. In Section III of the MRFCA, Dr. Lev stated that “[c]laimant retains the capacity to
understand, remember, and carry out simple but not detailed instructions and can relate
appropriately to co-worker, supervisors, and the general public on an incidental basis.” AR 65.
On reconsideration, state agency psychologist Ralph Robinowitz, Ph.D. found identical moderate
limitations and made identical Section III findings. AR 102–04.
The ALJ failed to discuss the opinions of Dr. Lev or Dr. Robinowitz in determining Ms.
Castillo-Rael’s RFC. See AR 16–20. The ALJ did not state what weight he gave either of the
opinions. This was legal error. See Keyes-Zachary, 695 F.3d at 1161. The only reference the
ALJ made to Dr. Lev’s and Dr. Rabinowitz’s opinions in the RFC assessment was to say that the
RFC was “supported by . . . the opinions of the state agency physicians.” AR 20. The ALJ did
discuss Dr. Lev’s and Dr. Rabinowitz’s opinions at Step Three, concluding that “the opinions of
the State agency physicians that the claimant’s impairments neither met or equaled the severity
of a listed impairment are well reasoned and supported by the evidence of record.” AR 16. The
ALJ, however, does not state how he weighed their opinions in the context of assessing Ms.

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Castillo-Rael’s RFC. The Commissioner claims that the ALJ gave the opinions “some weight”
because the opinions are “supported by the record evidence, and are generally consistent with the
RFC assigned by the ALJ.” Doc. 19 at 8. The ALJ, however, did not state that he gave the
opinions “some weight.” In fact, the ALJ made no statement at all about what weight he gave
the opinions of the state agency psychologists. The ALJ also offered no explanation of how or if
he incorporated the numerous moderate limitations in their opinions into the RFC. See AR 16–
20. This Court cannot rely on the post hoc explanations offered by the Commissioner. See Allen
v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004) (“Affirming this post hoc effort to salvage the
ALJ’s decision would require us to overstep our institutional role and usurp essential functions
committed in the first instance to the administrative process.”).
While Ms. Castillo-Rael argues that the ALJ impermissibly “picked and chose” from the
limitations opined by the state agency psychologists, the ALJ’s vague RFC discussion leaves the
Court unable to meaningfully review this argument. In addition to failing to explain what weight
he gave the state agency psychologists’ opinions, the ALJ failed to adequately tie his RFC
findings to the evidence. The ALJ’s opinion does not include an adequate analysis which
“include[s] a narrative discussion describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” SSR 96-8p, 1996 WL 374184, at *7. The ALJ found that Ms. Castillo-Rael
could “understand, remember, and carry out simple instructions and make commensurate work
related decisions, but not at a production pace, in a work setting with few changes.” AR 16–17.
While the ALJ summarized some of the medical evidence and Ms. Castillo-Rael’s testimony, the
ALJ did not adequately explain how the evidence he cited supported his RFC conclusions with

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regard to these mental functions. 9 The ALJ’s RFC finding is not fully consistent with Dr.
Wynne’s opinion, to which the ALJ assigned “great weight.” AR 19. Dr. Wynne stated only
that Ms. Castillo-Rael could “read and understand basic written instructions but her
concentration and ability to persist at simple work tasks are moderately impaired.” AR 334
(emphasis added). Thus, it is simply unclear from the ALJ’s decision how he determined that
Ms. Castillo-Rael was capable of “remember[ing], and carry[ing] out simple instructions and
mak[ing] commensurate work related decisions, but not at a production pace, in a work setting
with few changes.” AR 16–17. It is similarly unclear how the ALJ determined that Ms. CastilloRael could “occasionally interact with supervisors, co-workers, and the public.” AR 17. Dr.
Wynne opined that Ms. Castillo-Rael “could not interact well with the general public, her

9

“The RFC assessment must first identify the individual’s functional limitations or restrictions
and assess his or her work-related abilities on a function-by-function basis, including the
functions in paragraphs (b), (c), and (d) of 20 C.F.R. [§§] 404.1545 and 416.945.” SSR 96-8p,
1996 WL 374184, at *1. This means the ALJ must consider how the claimant’s impairments
affect his or her physical abilities, mental abilities, and other abilities. An ALJ must consider
all of the following when assessing a claimant’s mental abilities:
When we assess your mental abilities, we first assess the nature and extent of your
mental limitations and restrictions and then determine your residual functional
capacity for work activity on a regular and continuing basis. A limited ability to
carry out certain mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting, may reduce your
ability to do past work and other work.
20 C.F.R. §§ 404.1545(c), 416.945(c); see also SSR 96-8p, 1996 WL 374184, at *6 (“Workrelated mental activities generally required by competitive, remunerative work include the
abilities to: understand, carry out, and remember instructions; use judgment in making workrelated decisions; respond appropriately to supervision, co-workers and work situations; and deal
with changes in a routine work setting.”). In formulating the RFC, an ALJ must perform a
function-by-function assessment of these work-related functions, considering all of the relevant
evidence in the case record. SSR 96-8p, 1996 WL 374184, at*2. The Tenth Circuit has held that
where a claimant is found to have more than mild mental limitations in work-related functions,
the ALJ must “express those impairments ‘in terms of work-related functions’ or ‘[w]ork-related
mental activities.’” Jaramillo v. Colvin, 576 F. App’x 870, 876 (10th Cir. 2004) (unpublished)
(quoting SSR 96-8p, 1996 WL 374184, at *6).
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coworkers, or her supervisors.” AR 19, 334. Ms. Castillo-Rael testified that dealing with
customers in her past jobs caused her to have increased panic attacks, and that when she had to
deal with customers she would “blank out” and “start shaking” and “sweating.” AR 34. She
also testified that she has 6 to 10 panic attacks every day, which sometimes last ten minutes or
more each. AR 39–40. The ALJ issued a blanket statement that his RFC is “supported by Dr.
Wynne’s opinions, the opinions of the State agency physicians, the infrequency of treatment, the
absence of hospitalizations, [and] the claimant’s noncompliance with medications.” AR 20.
This boilerplate conclusory list does not adequately explain how the ALJ concluded that Ms.
Castillo-Rael could “occasionally interact with supervisors, co-workers, [or] the public.” AR 17.
Neither does the ALJ’s finding that Ms. Castillo-Rael was “not entirely credible” shed any light
on the ALJ’s conclusions regarding these mental functions. AR 17. In this case, the Court is
simply left to guess what evidence the ALJ relied on in assessing Ms. Castillo-Rael’s RFC. This
requires remand.
VI.

Conclusion
The ALJ erred in failing to explain the weight he gave the opinions of the state agency

psychologists. The ALJ also failed to adequately tie his RFC findings to the evidence. The
Court remands so that the ALJ can remedy these errors. The Court does not reach Ms. CastilloRael’s other claimed errors, as they “may be affected by the ALJ’s treatment of this case on
remand.” Watkins, 350 F.3d at 1299.
IT IS THEREFORE ORDERED that plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 17) is GRANTED.

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IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED, and
this case is REMANDED for further proceedings in accordance with this opinion.

________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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