Hays v. Social Security Administration

Filing 30

Proposed Findings and Recommended Disposition by Magistrate Judge Kirtan Khalsa re 25 MOTION to Remand to Agency filed by Johnna Hays. Objections to R&R due by 2/25/2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (tkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHNNA HAYS,
Plaintiff,
v.

USDC Civ. No. 17-700 JCH/KK

SOCIAL SECURITY ADMINISTRATION,
NANCY BERRYHILL, Acting Commissioner
of Social Security Administration,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Social Security Administrative Record (Doc.
14) filed May 3, 2018, in support of Plaintiff Johnna Hays’ (“Plaintiff”) Complaint (Doc. 1)
seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration (“Defendant” or “Commissioner”) denying Plaintiff’s claim for
Title II disability insurance benefits. On August 5, 2018, Plaintiff filed her Motion to Reverse or
Remand. (Doc. 25.) The Commissioner filed a Response in opposition on October 5, 2018 (Doc.
27), and Plaintiff filed a Reply on October 15, 2018 (Doc. 28). The Court has jurisdiction to review
the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously
reviewed the entire record and the applicable law and being fully advised in the premises, the Court
finds the Motion is well taken in part and recommends that it be GRANTED insofar as it seeks
remand.
I.

Background and Procedural Record

Plaintiff alleges that she was disabled for a closed period lasting from September 28, 2011,
through August 1, 2016, because of mood disorder, posttraumatic stress disorder (PTSD),
psychosis, major depressive disorder, bipolar disorder, and attention deficit hyperactivity disorder
1

(ADHD). (AR. 105, 525, 528, 777.) Plaintiff completed vocational school to become a licensed
practical nurse, and she worked in that capacity from January 1996 until the alleged onset of her
disability in September 2011. (AR. 87.) Plaintiff reported that she left work in 2011 because her
employer learned that she was bipolar and began harassing her, which eventually led to a
suspension, and after which she “had several drawbacks” related to her conditions that prevented
her from returning to work. (AR. 577-78.) After her alleged onset date, Plaintiff returned to
college and completed approximately one-half of a two-year program related to electronic health
information. (AR. 579-80, 1419-20.) At the end of July 2016, Plaintiff resumed work part-time as
a licensed practical nurse and, by September 2017, she had switched to a PRN schedule—meaning
that Plaintiff’s employer calls her as she is needed and, depending on how she feels, she accepts
or declines the shift. (AR. 567, 584-85.)
On June 6, 2012, Plaintiff protectively filed an application for a period of disability and
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401
et seq., and an application for supplemental security income under Title XVI of the Act, 42 U.S.C.
§ 1381 et seq. (AR. 83.) Plaintiff’s applications were initially denied on October 10, 2012, and
they were denied upon reconsideration on December 20, 2012. (AR. 81-124.) On January 10,
2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) (Doc. 141), and
on September 3, 2013, ALJ Ben Willner held a hearing. (AR. 26-39.) On February 24, 2014, ALJ
Willner found that Plaintiff was not disabled under Section 1614(a)(3)(A) of the Act. (AR 38-39.)
Plaintiff appealed ALJ Willner’s decision, but the Appeals council denied her request for review.
(AR 552.) Plaintiff then appealed the decision to this Court, and Magistrate Judge Steven
Yarbrough remanded the matter to the Commissioner based upon ALJ Willner’s failure to consider
and explain the weight assigned to the opinion of Plaintiff’s treating physician. (AR. 634-49.)

2

On remand, on September 7, 2016, ALJ Lillian Richter held a hearing on Plaintiff’s
applications. (AR. 558.) Plaintiff appeared in person at the hearing with her attorney Jonathan
Woods.1 (AR. 560.) The ALJ took testimony from Plaintiff (AR 563-93), and from an impartial
vocational expert (“VE”) Cornelius Ford (AR. 593-99). On May 11, 2017, ALJ Richter issued an
unfavorable decision. (AR. 525-43.) That decision became the final agency decision from which
Plaintiff now appeals. (AR. 506.) See 20 C.F.R. §§ 404.984(d), 416.1484(d).
II. Applicable Law
A.

Disability Determination Process

An individual is considered disabled if 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) (pertaining to disability insurance benefits);
see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits
for adult individuals). The Social Security Commissioner has adopted the familiar five-step
sequential analysis to determine whether a person satisfies the statutory criteria as follows:
(1)

At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”2 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his medical condition.

(2)

At step two, the ALJ must determine the severity of the claimed physical or
mental impairment(s). If the claimant does not have an impairment(s) or
combination of impairments that is severe and meets the duration
requirement, he is not disabled.

(3)

At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of

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Plaintiff is represented in these proceedings by attorney Benjamin Decker. (Doc. 25 at 24.)
Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less, get paid
less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity that you do
for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).

2

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the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.
(4)

If, however, the claimant’s impairments do not meet or equal in severity
one of the listing described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform his “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 [his physical and mental] limitations.” 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(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, the
claimant is capable of meeting those demands. A claimant who is capable
of returning to past relevant work is not disabled.

(5)

If the claimant does not have the RFC to perform his past relevant work, the
Commissioner, at step five, must show that the claimant is able to perform
other work in the national economy, considering the claimant’s RFC, age,
education, and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however, the
Commissioner is able to make the required showing, the claimant is deemed
not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the
initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert,
482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to
the Commissioner at step five to show that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is disabled or not disabled at any point in the
five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health & Human
Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.

Standard of Review

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This Court must affirm the Commissioner’s 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); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at
800-01. In making these determinations, the 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). A decision is based on substantial evidence where it is supported by “relevant evidence
. . . 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[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan,
966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a
sufficient basis to determine that appropriate legal principles have been followed.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to
discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the
evidence,” and “the [ALJ’s] reasons for finding a claimant not disabled” must be “articulated with
sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
II.

Analysis

At step five of the sequential evaluation, ALJ Richter determined that Plaintiff was not
disabled. (AR 541-42.) Specifically, the ALJ determined that Plaintiff met the insured status
requirements of the Act through December 31, 2016. (AR. 528.) She found that Plaintiff did not
engage in substantial gainful activity from the alleged onset date of disability, September 28, 2011,
through the end of the requested closed period of disability, August 1, 2016. (Id.) The ALJ also
found that Plaintiff had the following severe impairments: mood disorder, PTSD, psychosis, major

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depressive disorder, bipolar disorder, and ADHD. (Id.) She found that Plaintiff’s impairments
did not meet or equal the severity of one of the listings described in Appendix 1 of the regulations.
(Id.) As such, she proceeded to step four and found that Plaintiff had the residual functional
capacity to perform a limited range of medium work as defined in 20 C.F.R. Sections 404.1567(c)
and 416.967(c). (AR. 529.) The ALJ added that
[s]pecifically, [Plaintiff] could lift, carry, push and pull up to 50 pounds
occasionally and up to 25 pounds frequently, and she could stand for up to 6 hours
and sit for up to 6 hours in an 8-hour workday. She was limited to frequent handling
and fingering bilaterally and to occasional overhead reaching with the right upper
extremity.3 Additionally, she was limited to simple, routine and repetitive work,
and to making simple work-related decisions in a workplace with few changes in
the routine work setting. She was limited to occasional interaction with supervisors
and incidental interaction with coworkers and members of the public. She could
not work in tandem with other employees.
(AR. 529-30.) At step five, ALJ Richter determined that considering Plaintiff’s age,
education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that Plaintiff could perform from the alleged
onset date through August 1, 2016 and, therefore, Plaintiff was not disabled during that
time frame. (AR. 541-42.)
In support of her Motion, Plaintiff argues that (1) the ALJ’s RFC analysis was flawed
because she failed to properly weigh the testimony of Plaintiff’s treating psychiatrist, Dr. Michael
Sievert both as a matter of law (because she failed to employ the proper legal analysis) and as a
matter of fact (because she failed to properly consider Plaintiff’s treatment records) (Doc. 25 at
15-16; AR. 532); (2) the ALJ failed to properly weigh the opinions of Plaintiff’s treating therapists,
Jill Zomerhuis, LPAT, and John Rabka, M.A., LPCC (Doc. 25 at 17-18; AR. 535-36); (3) that the

3

The ALJ considered other medically determinable impairments, including those related to mild degenerative disc
disease of the cervical spine, alcohol abuse in remission, carpal tunnel syndrome, torn rotator cuff of the right shoulder,
and onychomycosis to be non-sever impairments. (AR. 528.) Plaintiff’s appeal does not concern the ALJ’s decision
regarding these impairments.

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opinions of these treatment providers should have been weighed more heavily than that of
psychological consultative examiner Dr. Davis Brimberg (AR 537; Doc. 25 at 22-23); and (4) the
ALJ’s findings regarding the intensity and persistence of Plaintiff’s symptoms were improper
because these findings were contradicted by substantial evidence (Doc. 25 at 18-22).
For the reasons discussed below, the Court recommends that Plaintiff’s motion be granted
on the ground that the ALJ failed to apply the proper legal standards in her evaluation of the
opinions of Plaintiff’s treatment providers.
A. Mental Health Opinion Evidence
The evidence of record reflects that Plaintiff has received mental health treatment since
2010. Records indicate that Plaintiff received monthly medication management and therapy at
Sage Neuroscience Center from September 2010 through December 2011, and in May 2012. (AR.
304-322.) These treatment notes consistently reflect that Plaintiff was depressed and anxious and
that she variously suffered from increased mania, PTSD symptoms, and poor sleep, among other
things. (Id.)
Most of the treatment-related evidence of record is from Presbyterian Medical Services,
Rio Rancho Family Health Center (PMS) where Plaintiff received therapy and medication
management services beginning in December 2012 and continuing at least through August 2016.
(See AR. 408, 1238.) Among other providers at PMS, Plaintiff received treatment from medical
doctors Tait Dalton and Michael Sievert. From December 3, 2012 through February 26, 2014,
Plaintiff saw Dr. Dalton thirteen times for medication management. (AR. 388, 405, 408, 415, 418,
423, 428, 461, 861, 888, 892, 902, 932.) Plaintiff saw Dr. Sievert for medication management
twenty times between May 2014 and July 2016. (AR. 476, 482, 962, 986, 993, 997, 1015, 1020,
1028, 1033, 1039, 1047, 1089, 1104, 1120, 1131, 1146, 1184, 1202, 1232.) Plaintiff received

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therapy at PMS from Jill Abrams Apodaca, LPAT; Jill Zomerhuis, LPAT; and John Rabka, LPCC.
From January through February 2013, Plaintiff saw LPCC Rabka seven times. (AR. 375, 377,
379, 384, 386, 391, 393.) Plaintiff saw LPAT Zomerhuis twenty-four times from July 2013
through September 2014. (AR. 426, 433, 435, 457, 474, 493, 496, 866, 874, 877, 883, 885, 895,
898, 900, 918, 928, 937, 960, 969, 975, 979, 981, 1367.) And she saw LPAT Apodaca twenty
times from April 2015 through August 2016. (AR. 1024, 1026, 1044, 1059, 1067, 1069, 1086,
1095, 1116, 1125, 1152, 1173, 1176, 1191, 1194, 1197, 1215, 1218, 1226, 1238.)
LPCC Rabka’s Opinions
On April 8, 2014, LPCC Rabka completed a “Medical Assessment of Ability to do WorkRelated Activities” form4, on which he assessed Plaintiff’s limitations in the areas of understanding
and memory, sustained concentration and persistence, social interaction, and adaptation. (AR.
468-69.) LPCC Rabka assessed Plaintiff as having marked limitations in her ability to (1)
understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain
attention and concentration for extended periods of time (i.e. 2 hour segments); (4) sustain an
ordinary routine without special supervision; (5) complete a normal workday and workweek
without interruptions from psychological symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; (6) accept instructions and respond
appropriately to criticism from supervisors; (7) travel in unfamiliar places or use public
transportation; and (8) set realistic goals and making plans independently of others. (AR. 468-69.)
LPCC Rabka assessed Plaintiff as having moderate limitations: (1) remembering locations
and work-like procedures; (2) understanding and remembering very short and simple instructions;
(3) carrying out very short and simple instructions; (4) performing activities within a schedule

4

The form instructed LPCC Rabka to assess Plaintiff’s capabilities based on her medical history from 2012 to the date
of the examination. (AR. 468)

8

maintaining regular attendance and being punctual within customary tolerance; (5) working in
coordination with/ or proximity to others without being distracted by them; and (6) making simple
work-related decisions (AR. 468-69.)
LPCC Rabka’s handwritten notes related to understanding and memory indicate that
“pressure from expectations of productivity in average work settings impacts short term memory
and basic instructions to a level of panic.” (AR. 468.) In regard to sustained concentration and
persistence, LPCC Rabka noted “[d]istractibility is high due to high levels of being readily and
easily overwhelmed and worried commensurate with anxiety diagnosis.” (AR. 468.) He noted, as
to social interaction, that “[i]ncreased problems with distrust of co-workers or general public
outside of work and of authority figures [is] typical of anxiety diagnosis.” (AR. 469.) And he
noted as to adaptation that Plaintiff had “[d]ifficulty to significant degree to changes or the
unfamiliar due to daily & consistent anxiety symptoms. Can emotionally and behaviorally shutdown on the job or in other communications due to this.” (AR. 469.) Finally, as to “any additional
significant mental limitations” LPCC Rabka listed: “paranoia, hypervigilance, frequent feelings of
hopelessness, panic, of clinical nature, panic, anxiety, and depressive symptoms commensurate of
a diagnosis of PTSD.” (AR. 469.)
LPAT Zomerhuis’ Opinions
LPAT Zomerhuis completed a “Medical Assessment of Ability to do Work-Related
Activities” form on April 16, 2014.5 (AR. 471-72.) LPAT Zomerhuis assessed that Plaintiff had
marked limitations (1) understanding and remembering detailed instructions; (2) carrying out
detailed instructions; (3) maintaining attention and concentration for extended periods of time (i.e.
2 hour segments); (4) working in coordination with/ or proximity to others without being distracted

5

The form instructed LPAT Zomerhuis to assess Plaintiff’s capabilities based on her medical history from 2012 to
the date of the examination. (AR. 471)

9

by them; (5) completing a normal workday and workweek without interruptions from
psychological symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; (6) interacting appropriately with the general public; (7) getting along with
coworkers or peers without distracting them or exhibiting behavioral extremes; (8) maintaining
socially appropriate behavior and adhering to basic standards of neatness and cleanliness; and (9)
responding appropriately to changes in the work place. (AR 471-72.)
LPAT Zomerhuis assessed Plaintiff as having moderate limitations (1) remembering
locations and work-like procedures; (2) understanding and remembering very short and simple
instructions; (3) carrying out very short and simple instructions; (4) performing activities within a
schedule, maintaining regular attendance and being punctual within customary tolerance; (5)
sustaining an ordinary routine without special supervision; (6) making simple work-related
decisions; (7) asking simple questions or requesting assistance; (8) accepting instructions and
responding appropriately to criticism from supervisors; (9) being aware of normal hazards and
taking adequate precautions; (10) travelling in unfamiliar places or using public transportation;
and (11) setting realistic goals and making plans independently of others. (AR 471-72.)
LPAT Zomerhuis’ handwritten notes indicate that Plaintiff “has tangential thought process
which makes it difficult for her to follow one conversation.” (AR. 471.) She “[h]as difficulty
getting along with others [and] with excess stimuli.” (AR. 471.) She “does not bathe or wash her
hair except for once every week or every other week.” (AR. 472.) And she “has hallucinations
which interfere with her daily functioning.” (AR. 472.) As to “any additional significant
limitations” LPAT Zomerhuis noted that Plaintiff has “[t]rouble getting out of the house due to
depression, has paranoia [and] manic episodes when she is out of control [, and] hallucinations.”
(AR. 472.)

10

On September 16, 2016, LPAT Zomerhuis completed a second “Medical Assessment of
Ability to do Work-Related Activities” form. (AR. 1406-07.) This time, LPAT Zomerhuis was
instructed to consider Plaintiff’s limitations from one year prior to her initial visit to the current
examination. (AR. 1406.) LPAT Zomerhuis’ assessment of Plaintiff’s limitations was unchanged
with the following exceptions. She assessed Plaintiff as having marked limitations in her abilities
to (1) to understand and remember very short and simple instructions; and (2) accept instructions
and respond appropriately to criticism from supervisors. (AR. 1406-07; see 471-72.) She assessed
moderate limitations in Plaintiff’s ability to (1) complete a normal workday and workweek without
interruptions from psychological based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; (2) interact appropriately with the general public;
(3) get along with coworkers or peers without distracting them or exhibiting behavioral extremes;
(4) maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness; and (5) respond appropriately to changes in the work place. (AR. 1406-07, see 47172.) And she assessed only slight limitations in Plaintiff’s ability to: (1) carry out very short and
simple instructions; (2) to perform activities within a schedule; and (3) be aware of normal hazards
and take adequate precautions. (AR 1406-07.) As to “any additional significant limitations” LPAT
Zomerhuis noted that Plaintiff “suffers severe bipolar [disorder] with some psychotic features
[and] is impaired with [activities of daily living,] communication[,] etc.” (AR 1407.)
On September 6, 2016, LPAT Zomerhuis also completed forms for Listing 12.04 Affective
Disorders and 12.06 Anxiety-Related Disorders, and assessed that Plaintiff satisfied the criteria for
both. (AR. 1408-09.) LPAT Zomerhuis assessed, among other things, that Plaintiff had: marked
restriction of activities of daily living; marked difficulties in maintaining social functioning;

11

marked difficulties in maintaining concentration, persistence and pace; and repeated episodes of
decompensation each of extended duration. (AR. 1408-09.)
Dr. Sievert’s Opinions
On September 2, 2016, Dr. Sievert completed a “Medical Assessment of Ability to do
Work-Related Activities” based on Plaintiff’s medical history dating back to 2011. (AR. 1260.)
Dr. Sievert assessed Plaintiff as having marked limitations (1) understanding and remembering
detailed instructions; (2) carrying out detailed instructions; (3) maintaining attention and
concentration for extended periods of time; (4) performing activities within a schedule,
maintaining regular attendance, and being punctual within customary tolerance; (5) sustaining an
ordinary routine without special supervision; (6) completing a normal workday and workweek
without interruptions from psychological symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; (7) accepting instructions and responding
appropriately to criticism from supervisors; (8) responding appropriately to changes in the
workplace; and (9) being aware of normal hazards and taking adequate precautions. (Id.)
Dr. Sievert assessed Plaintiff as having moderate limitations (1) working in coordination
with/or proximity to others without being distracted by them; (2) interacting appropriately with
the general public; (3) getting along with coworkers or peers without distracting them or exhibiting
behavioral extremes; (4) maintaining socially appropriate behavior and adhering to basic standards
of neatness and cleanliness; (5) travelling in unfamiliar places or using public transportation; and
(6) setting realistic goals or making plans independently of others. (Id.)
Dr. Sievert also completed forms for Listing 12.04 Affective Disorders and 12.06 AnxietyRelated Disorders, and assessed that Plaintiff satisfied the criteria for both. (AR. 1263-64.) On
the form for Listing 12.04 Affective Disorders Dr. Sievert opined that Plaintiff had depressive

12

syndrome and manic syndrome resulting in marked difficulties in maintaining social functioning,
and marked difficulties in maintaining concentration, persistence and pace; he opined, further, that
she had “[a] residual disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands or change in the environment would be predicted to cause
[her] to decompensate[.]” (AR. 1263.) On the form for Listing 12.06 Anxiety-Related Disorders,
Dr. Sievert opined that Plaintiff had generalized persistent anxiety resulting in marked difficulties
in maintaining social functioning and marked difficulties in maintaining concentration,
persistence, or pace. (AR. 1264.)
Psycho-Educational Testing
In October 2013, Plaintiff’s DVR counselor referred her to Mark Arcuri, Ph.D for a psychoeducational testing battery to determine her school and vocational school accommodation needs.
(AR. 1275.) Dr. Arcuri recommended accommodations in and out of school to include: (1)
learning opportunities with a variety of verbal and visual stimuli; (2) read materials aloud when
studying and testing; (3) track page with a blank paper when reading; (4) preferential seating in
front of room in school; (4) tape record lectures for playback while studying in order to minimiz[e]
competing demands (i.e., attending and taking notes at the same time) while listening to lectures
in the classroom; (5) extra time (2x) on examinations due to attentional problems; (6) use of a
calculator for mathematics tests; (5) mathematics tutoring; and (5) separate testing room due to
reading material out loud and need for extra time. (AR. 1276-77.)
Mental Disability Evaluation
On September 17, 2012, Dr. Davis Brimberg conducted a Mental Disability Evaluation of
Plaintiff. (AR. 333-36.) The examination lasted for fifteen minutes. (AR. 537-38.) Dr. Brimberg
reviewed six medication management notes from Sage Neurosicence Center taken in 2011 and

13

2012, and he observed that a treatment note from May 2012 indicated that Plaintiff was not
compliant with her medication, but the remaining treatment notes (from 2011) indicate that she
was compliant with medication. (AR. 333.) Dr. Brimberg assessed Plaintiff’s prognosis as “poor
due to the nature of her long-standing symptoms and history of suicidal ideation and attempts.”
(AR. 336.) And, his functional assessment of Plaintiff was that she “showed a good ability to
reason, understand and remember information”; “[s]he demonstrated the basic ability to
concentrate”; she “showed a good ability to interact socially during the evaluation”; and she
“demonstrated a good ability to adapt to social and work situations.” (AR. 336.)
The ALJ accorded “some weight, but not controlling weight” to Dr. Sievert’s opinions.
(AR. 536.) And she accorded “some weight” to the opinions of LPCC Rabka and LPAT
Zomerhuis. (AR. 535-36.) The ALJ accorded “significant weight” to the opinions of Dr. Acuri
and Dr. Brimberg.6 (AR. 537-38.)
B. The ALJ Did Not Adequately Evaluate the Opinions of Plaintiff’s Treatment
Providers in accordance with governing legal standards
The ALJ failed to assess whether Dr. Sievert’s opinions were supported by the medical
evidence, failed to meaningfully analyze Dr. Sievert’s opinions pursuant to relevant factors, and
“cherry-picked” evidence in rejecting his opinions concerned Plaintiff’s functional limitations.
The ALJ also improperly weighed the opinions offered by LPAT Zomerhuis and LPCC Rabka by
failing to address the degree to which these opinions are consistent with the therapists’ treatment
notes, with the opinions offered by Plaintiff’s other treatment providers, and the record as a whole.

6

She also accorded “significant weight” to the opinions of Candace Mihm, Ph.D. and Cathy Simutis, Ph.D., state
agency psychological consultants who reviewed the medical evidence of record as of 2012, and concluded, based
thereon, that Plaintiff was not disabled. (AR. 102, 124, 539.)

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As a “treating source” psychiatrist, Dr. Sievert’s opinions are governed by the treating
physician rule.7 See SSR 06-03P, 2006 WL 2329939 at *1-2 (explaining that only “acceptable
medical sources” including licensed physicians can be considered “treating sources” whose
opinions may be entitled to controlling weight). An ALJ is required to conduct a two-part inquiry
with regard to treating physicians, each step of which is analytically distinct. Krauser v. Astrue,
638 F.3d 1324, 1330 (10th Cir. 2011). First, the ALJ must decide whether a treating doctor’s
opinion commands controlling weight. Krauser, 638 F.3d at 1330. A treating doctor’s opinion
must be accorded controlling weight “if it is well-supported by medically acceptable clinical or
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the
record.” Id. (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (applying SSR 962p, 1996 WL 374188, at *28). If a treating doctor’s opinion does not meet this standard, the opinion
is still entitled to deference to some extent as determined under the second step of the process.
Krauser, 638 F.3d at 1330. In this second step, the ALJ must determine the weight to accord the
treating physician by analyzing the treating doctor’s opinion against the several factors provided
in 20 C.F.R. §§ 404.1527(c), 416.927(c). Id. These factors include
(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; (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.

7

LPCC Rabka and Ms. Zomherhuis were not “acceptable medical sources” such that their opinions could be
entitled to controlling weight, however, as Plaintiff’s therapists, they are considered “medical sources.” SSR 06-03P,
2006 WL 2329939, at * 2. (AR. 535-36)
8
SSRs are binding on the SSA, and while they do not have the force of law, courts traditionally defer to SSRs
since they constitute the agency’s interpretation of its own regulations and foundational statutes. See Sullivan v.
Zebley, 493 U.S. 521, 531 n.9 (1990); 20 C.F.R. § 402.35; see also Andrade v. Sec’y of Health & Human Servs., 985
F.2d 1045, 1051 (10th Cir. 1993) (SSRs entitled to deference).

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Watkins v. Barnhart, 350 F.3d at 1301 (internal citations and quotations omitted); see also 20
C.F.R. §§ 404.1527(c), 416.927(c). An ALJ need not articulate every factor; however, the ALJ’s
decision must be “sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight.” Oldham
v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). ALJs are required to weigh medical source
opinions and to provide “appropriate explanations for accepting or rejecting such opinions.” SSR
96-5p, 1996 WL 374183 at *5 (emphasis added); see Keyes-Zachary v Astrue, 695 F.3d 1156,
1161 (10th Cir. 2012) (citing 20 C.F.R. § 416.927(e)(2)(ii))). If the ALJ rejects a treating source
opinion completely, he must then give “῾specific, legitimate reasons’” for doing so. Watkins, 350
F.3d at 1301 (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen,
816 F.2d 508, 513 (10th Cir. 1987)). “In choosing to reject the treating physician’s assessment, an
ALJ may not make speculative inferences from medical reports and may reject a treating
physician’s opinion outright only on the basis of contradictory medical evidence and not due to
his or her own credibility judgments, speculation or lay opinion.” Langley, 373 F.3d at 1121
(quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (emphasis in original)).
Although the ALJ purports to give Dr. Sievert’s opinions “some weight, but not controlling
weight,” (AR. 536), the ALJ in fact rejected Dr. Sievert’s opinions in areas of functioning in which
he assessed Plaintiff’s limitations as marked. In so doing, the ALJ did not apply the appropriate
legal standards or give good reasons for rejecting Dr. Sievert’s opinions. Without citing to
contradictory medical evidence or giving any specific, legitimate reasons for rejecting Dr.
Sievert’s opinions, the ALJ instead seemingly relies on her own lay opinion. (AR. 537.) The
ALJ’s analysis also does not reflect her consideration of the factors enumerated in Watkins in her
evaluation of Dr. Sievert’s opinions.

16

By the time he assessed Plaintiff’s functional limitations, Dr. Sievert, a specialist in the
area upon which his opinions were rendered, had been Plaintiff’s treating physician for over two
years. The opinions that he offered regarding Plaintiff’s limitations were informed by Plaintiff’s
history since 2011. (AR. 1261.) Dr. Sievert’s treatment notes indicate that Plaintiff sometimes
exhibited signs of psychosis (AR. 478), mania (AR. 478, 486), auditory and visual hallucinations
(479, 1233), pressured speech (AR. 1092), suicidal ideations (AR. 1029, 1030, 1091, 1133, 1147,
1187), inappropriate mood (AR. 1029, 1034, 1133, 1187, 1234), paranoia (AR. 1034, 1091, 1147),
not oriented to time (1234), tangential thoughts (AR. 1012), and labile affect (AR. 1234) and that
she consistently exhibited an anxious mood (AR. 478, 486, 966, 987, 994, 998, 1016, 1021, 1030,
1034, 1040, 1048, 1092, 1106, 1122, 1148, 1187, 1206, 1234). However, the Court cannot discern
the degree to which the ALJ accounted for the length of the treatment relationship or the frequency
of the examinations, or a consideration of the degree to which Dr. Sievert’s opinions were
supported by his own treatment notes and the medical evidence and therapy treatment notes found
in the record as a whole. Watkins, 350 F.3d at 1301. Furthermore, while the ALJ’s observations
regarding Plaintiff’s capabilities are minimally supported by the record, the fact that Plaintiff
attended school with accommodations, functioned independently, and sought and maintained
gainful employment for the two months directly after the claimed disability term ended does not
constitute medical evidence upon which the ALJ was permitted to reject a treating physician’s
opinion. See McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (stating that an ALJ
“may reject a treating physician’s opinion outright only on the basis of contradictory medical
evidence”). Finally, by observing that Plaintiff attended school for approximately one year, lived
alone, and became employed two months prior to the hearing, the ALJ appears to have selectively
relied on evidence that supported a determination of non-disability while failing to explain her

17

reasons for rejecting substantial medical evidence including Dr. Sievert’s own treatment notes,
that supported his opinions. This is improper. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th
Cir. 2004) (stating that an ALJ may not pick and choose evidence from the record that supports a
finding of non-disability while ignoring evidence to the contrary). In sum, the ALJ failed to
provide an adequate explanation for rejecting Dr. Sievert’s opinions.
The ALJ likewise failed to apply the appropriate legal standards and consider all of the
relevant medical evidence when she rejected the opinions of Plaintiff’s treating therapists, LPCC
Rabka and LPAT Zomerhuis. The regulations state that all relevant evidence will be considered
when making a determination about whether an individual is disabled. 20 C.F.R. § 416.927(b).
The regulations also contemplate the use of information from “other sources,” both medical and
non-medical,9 in making a determination about whether an individual is disabled. Frantz v. Astrue,
509 F.3d 1299, 1301 (10th Cir. 2007) (citing 20 C.F.R. §§ 404.1502, 404.1513(d), 416.902,
416.913(d)). Recognizing the growth of managed health care in recent years and the increasing
use of medical sources who are not technically “acceptable medical sources,” SSR 06-03p states
that
medical sources who are not “acceptable medical sources,” such as nurse practitioners,
physician assistants, and licensed clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation functions previously handled primarily
by physicians and psychologists. Opinion from these medical sources, who are not
technically deemed “acceptable medical sources” under our rules, are important and should
be evaluated on key issues such as impairment severity and functional effects, along with
the other relevant evidence in the file.

9

Other medical sources are nurse practitioners, physician assistants, licensed clinical social workers, naturopaths,
chiropractors, audiologists, and therapist. SSR 06-03p, 2006 WL 2329939, at *2. Non-medical sources include, but
are not limited to, educational personnel, such as school teachers, counselors, early intervention team members,
developmental center workers, and daycare center workers; public and private social welfare agency personnel,
rehabilitation counselors; and spouses, parents and other caregivers, siblings, other relatives, friends, neighbors,
clergy, and employers. SSR 06-03p, 2006 WL 2329939, at *2.

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SSR 06-03p, 2006 WL 2329939, at *3. Thus, evidence from other medical sources may be used
“to show the severity of an individual’s impairment(s) and how it affects the individual’s ability
to function.” Id.; see SSR 06-03p, 2006 WL 2329939, at *2. “Information from these ‘other
sources’ cannot establish the existence of a medically determinable impairment. Instead, there
must be evidence from an ‘acceptable medical source’ “Acceptable medical sources” are licensed
physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and
qualified speech-language pathologists. SSR 06-03p, 2006 WL 2329939, at *1.
An ALJ is required to explain the weight given to opinions from other medical sources and
non-medical sources who have seen a claimant in their professional capacity, “or otherwise ensure
that the discussion of the evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.” Id. at *6; see also Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir.
2012) (finding that ALJ was required to explain the amount of weight given to other medical source
opinion or sufficiently permit reviewer to follow adjudicator’s reasoning). Although opinions
from other medical sources and non-medical sources who have seen a claimant in their professional
capacity cannot be given controlling weight, an adjudicator may determine that opinions from such
sources are entitled to greater weight than a treating source medical opinion. SSR 06-03p, 2006
WL 2329939, at *6. The weight given to this evidence will vary according to the particular facts
of the case, the source of the opinion, the source’s qualifications, the issues that the opinion is
about, and other factors, i.e., how long the source has known and how frequently the source has
seen the individual; how consistent the opinion is with other evidence; the degree to which the
source presents relevant evidence to support an opinion; how well the source explains the opinion;
whether the source has a specialty or area of expertise related to the individual’s impairment; and

19

any other facts that tend to support or refute the opinion. SSR 06-03p, 2006 WL 2329939, at *45.
The ALJ gave “some weight” to LPCC Rabka’s opinions. (AR. 535.) The ALJ reasoned
that although “LPCC Rabka has treated [Plaintiff] and can be expected to have some familiarity
with her mental health condition . . . his opinion is not fully consistent with the medical evidence
of record” because “records from her treating mental healthcare providers shows that [Plaintiff]
was attending school regularly and reportedly doing well with it.” (AR. 535-36.) This finding is
not supported by substantial evidence. In support of this finding, the ALJ cited one page of Dr.
Sievert’s “Medical Assessment of Ability to do Work-Related Activities” form and (AR 536,
1261) and a March 5, 201410 treatment note from Plaintiff’s social worker, Elizabeth Sanchez,
indicating that Plaintiff had been “attending school regularly and not isolating”; but which also
noted, among other things, that Plaintiff “has issues with understanding and completing things on
her own without observation[.]” (AR. 536, 1319.) The ALJ’s reasoning also does not appear to
apply the proper legal standards in evaluating this other source opinion, and instead disregards
LPCC Rabka’s opinion supporting greater limitations based on improper cherry-picking and
selective reading of portions of the record. To that end, the Court observes that the ALJ relied on
Ms. Sanchez’s March 5, 2014, treatment note to support the notion that Plaintiff was “doing well
with” school attendance, while ignoring Dr. Sievert’s treatment note from the same day indicating
that Plaintiff had not showered for about a month and that she was having daily visual
hallucinations “where she can enter a different dimension through the floor or wall.” (AR. 937.)
Further, it is not at all clear whether and if so how the ALJ’s citation to a portion of Dr. Sievert’s
opinion—which largely accords with that of LPCC Rabka in their respective assessments of

10

The Court observes that LPCC Rabka was Plaintiff’s therapist in January and February 2013, and he was not treating
Plaintiff in March 2014.

20

Plaintiff’s marked and moderate limitations—supports the ALJ’s decision to reject Dr. Rabka’s
opinions. (Compare AR 468-69 with AR 1261-62.)
The ALJ also gave “some weight” to LPAT Zomerhuis’ opinions. (AR. 536.) But, as with
Dr. Sievert’s opinions, the ALJ rejected LPAT Zomerhuis’ opinions supporting greater functional
limitations on the ground that Plaintiff “maintained the ability to function independently, attend
school, and . . . seek and maintain employment during the alleged disability period.” (AR. 536.)
The ALJ also noted that Plaintiff “reported that she was generally stable when taking medications”
citing, in support of this finding, a single treatment note from April 23, 2015, in which LPAT
Apodaca (the therapist that treated Plaintiff after LPAT Zomerhuis ended her treatment in June
2014) noted that Plaintiff “appeared pretty stable today.”11 (AR. 536, 1024) Notably, a treatment
note made by Dr. Sievert six days earlier indicated that Plaintiff was anxious, she had difficulty
concentrating, racing thoughts, and reported that function was “very difficult”; and a treatment
note made by Dr. Sievert on April 13, 2015 indicated that Plaintiff had difficulty concentrating,
she was depressed or hopeless, she had racing thoughts, and suicidal ideation, among other issues
(AR. 1020, 1029.) Further, the ALJ’s opinion does not indicate that she considered the degree to
which LPAT Zomerhuis’ treatment notes—representing her impressions of Plaintiff over the
course of twenty-four individual therapy sessions from June 2013 to June 2014—accorded with
her opinions of Plaintiff’s limitations and the other medical evidence. Nor does the ALJ’s analysis
indicate that she considered any other of the facts in the record that tend to support LPAT
Zomerhuis’ opinions. The ALJ’s cursory and selectively-supported rationale for rejecting LPAT

11

While it was permissible for the ALJ to rely on LPAT Apodaca’s treatment notes as evidence to contradict LPAT
Zomerhuis’ opinions, the ALJ appears to have engaged in impermissible picking and choosing. For example, LPAT
Apodaca’s treatment notes from immediately subsequent visits indicated, among other things, that Plaintiff had
“pressured speech and non-stop tangential thinking” on May 8, 2015; she had a manic mood, pressured speech, and
tangential thought processes on June 23, 2015; and although her symptoms were improved on July 7, 2017, she was
manic and displayed tangential thoughts on July 27, 2017. (AR. 1067.)

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Zomerhuis’ opinions does not facilitate this Court’s review of her determination which is not
supported by substantial evidence. See Clifton, 79 F.3d at 1009 (“In the absence of ALJ findings
supported by specific weighing of the evidence” the Court cannot assess whether the ALJ “applied
the correct legal standards to arrive at that conclusion.”).
Here, the ALJ failed to apply the correct legal standards and to provide this court with a
sufficient basis to determine that appropriate legal principles have been followed, and the ALJ’s
rationale for rejecting the opinions of Plaintiff’s treating source physician and her two treating
therapists is not supported by substantial evidence. Accordingly the Court recommends that this
matter be remanded for further proceedings.
C. Remaining Issues
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).
III.

CONCLUSION

For the reasons stated above, the Court recommends that Plaintiff’s Motion to Reverse or
Remand (Doc. 25) be GRANTED, and that this matter be REMANDED to the Commissioner for
further proceedings.
Timely objections may be made pursuant to 28 U.S.C. § 636(b)(1)(c). Within fourteen
(14) days after a party is served with a copy of these proposed findings and recommended
disposition that party may, pursuant to Section 636(b)(1)(c), file written objections to such
proposed findings and recommended disposition with the Clerk of the United States District Court
for the District of New Mexico. A party must file any objections within the fourteen-day period

22

allowed if that party wants appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge

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