Hays v. Social Security Administration

Filing 32

ORDER by District Judge Judith C. Herrera adopting Report and Recommendations 30 and granting Motion to Remand to Agency 25 . (baw)

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.

ORDER OVERRULING DEFENDANT’S OBJECTIONS AND ADOPTING
MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION

THIS MATTER is before the Court on the Social Security Administrative Record (ECF
No. 14) filed May 3, 2018, in support of Plaintiff Johnna Hays’ (“Plaintiff”) Complaint (ECF No.
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; (2) the Magistrate Judge’s Proposed Findings and
Recommended Disposition (“PFRD”) (ECF No. 30), filed February 11, 2019; and (3) Defendant’s
Objections to Proposed Findings and Recommended Disposition (“Objections”) (ECF No. 31),
filed February 25, 2019. The Court, having considered the pending Motion and Objections, the
record, and the relevant law, finds that Defendant’s Objections are not well taken and will overrule
them, adopt the Magistrate Judge’s PFRD, and grant Plaintiff’s Motion.

I.

Introduction1

On May 21, 2018, this Court issued an Order of Reference referring Plaintiff’s Motion to
United States Magistrate Judge Kirtan Khalsa for a recommended disposition. (ECF No. 20.) The
Magistrate Judge filed a PFRD pursuant to the Order of Reference on February 11, 2019,
recommending that the Court grant Plaintiff’s Motion. (ECF No. 30.) Defendant timely filed
Objections to the PFRD on February 25, 2019, and a response is not required. (ECF No. 31.)
Plaintiff’s Motion, the Magistrate Judge’s PFRD, and Defendant’s Objections are now before the
Court.
II. Analysis
When a party files timely written objections to a magistrate judge’s recommendation on a
dispositive matter, the district court must conduct a de novo review, and “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). De novo review requires the district judge to consider relevant evidence in
the record and not merely to review the magistrate judge’s recommendation. In re Griego, 64 F.3d
580, 583-84 (10th Cir. 1995). “[A] party’s objections to the magistrate judge’s [PFRD] must be
both timely and specific to preserve an issue for de novo review by the district court or for appellate
review.” One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, 73
F.3d at 1060.
In the PFRD, Judge Khalsa recommended remand on the ground that the ALJ did not
adequately evaluate the opinions of Plaintiff’s treatment providers in accordance with the

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The Magistrate Judge’s PFRD thoroughly discussed the standard of review, the applicable law and sequential
evaluation process, and the factual background and procedural history of this case. (ECF No. 30 at 1-7.) The Court
will therefore refrain from repeating this information here.

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governing legal standards. (ECF No. 30 at 14-22.) Specifically, she determined that the ALJ failed
to provide the Court with a sufficient basis to determine that the ALJ’s reasons for rejecting the
opinions of Plaintiff’s treating source physician and her two treating therapists accorded with the
governing legal principles, and that the rationale provided by the ALJ for rejecting those opinions
was not supported by substantial evidence. (ECF No. 30 at 22.) Defendant objects to the PFRD
arguing that: (1) the ALJ’s decision was consistent with the opinions of Drs. Brimberg, Mihm,
Simutis, and Adamo, and other evidence in the record; (2) Dr. Sievert’s and LPAT Zomerhuis’
opinions were unreliable because they opined that Plaintiff had extreme and work preclusive
limitations even after she had returned to work; (3) the ALJ sufficiently evaluated the opinions of
Plaintiff’s treating sources; and (5) the ALJ’s opinion was supported by substantial evidence and
was not based on cherry-picked evidence. (ECF No. 31 at 1-4)
The Court has considered Defendant’s Objections and the relevant law, and, based on a de
novo review of the record, finds that the Objections are without merit, and will adopt the Magistrate
Judge’s PFRD in whole.
A.

That the ALJ’s decision is Consistent with the opinions of Drs.
Brimberg, Mihm, Simutis, and Adamo Does Not Excuse Her Failure
to Properly Evaluate the Opinions of Plaintiffs’ Treatment Providers

Defendant objects to the PFRD on the ground that that the ALJ’s decision to reject the
opinions of Plaintiff’s treating psychiatrist, Dr. Sievert and her treating therapists, LPAT
Zomerhuis and LPCC Rabka, was supported by the opinions of Drs. Brimberg, Mihm, Simutis,
and Adamo. (ECF No. 31 at 2.) Dr. Brimberg evaluated Plaintiff once in September 2012. (ECF
No. 30 at 13.) The examination lasted for fifteen minutes. (ECF No. 30 at 13.) Drs. Mihm,
Simutis, and Adamo were consultative examiners who reviewed Plaintiff’s records, but who
neither examined, nor treated her. (AR. 85-92, 109-21, 660-64.) Dr. Sievert was Plaintiff’s

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treating psychiatrist for more than two years. (ECF No. 30 at 7) LPCC Rabka and LPAT
Zomherhuis were Plaintiff’s therapists. (ECF No. 30 at 7-8.) LPCC Rabka saw Plaintiff seven
times in 2013, and LPAT Zomherhuis treated Plaintiff twenty-four times from July 2013 through
September 2014. (ECF No. 30 at 8.)
Dr. Sievert was a “treating source” and a specialist in the area in which his opinion was
given. (ECF No. 30 at 15, 17.) Pursuant to the governing regulations, the medical opinion of a
treating source, particularly one who is specialist on the issue to which his opinions relate, and
who has examined social security claimant is generally given more weight than the opinion of a
medical source who has not examined her. 20 C.F.R. § 404.1527(c)(1), (5). This is because “these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or from reports
of individual examinations, such as consultative examinations[.]” 20 C.F.R. § 404.1527(c)(2).
Moreover, a treating doctor’s opinion must be accorded controlling weight if it “is well-supported
and not inconsistent with the other substantial evidence in the case record.” SSR 96-2p, 1996 WL
374188, at *1. While the ALJ may decide to give less than controlling weight to a treating source’s
opinion, she must make her reasons for doing so “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), guided,
generally, by the six factors2 enumerated in Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.
2003). The Court agrees with the Magistrate Judge’s conclusion that the ALJ’s decision does not
satisfy these standards. (ECF No. 30 at 16-18.)

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These factors, and the relevant legal standards are provided in detail in the PFRD, and need not be reiterated here.
(ECF No. 30 at 15.)

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While the ALJ was entitled to consider the fact that the medical opinions of Drs. Brimberg,
Mihm, Simutis, and Adamo were inconsistent with those offered by Dr. Sievert as a basis for
giving Dr. Sievert’s opinions less than controlling weight, in so doing, she also was required to
discuss other substantial evidence in the record—including the consistency of Dr. Sievert’s
opinions with those offered by Plaintiff’s treating therapists, among other considerations. 20
C.F.R. § 404.1527(e) (indicating that medical or psychological consultative examiners’ opinions
are governed by 20 C.F.R. § 404.1513(a)); 20 C.F.R. § 404.1513(a)(2) (defining categories of
evidence, including “[a] medical opinion” which “is a statement from a medical source about what
[a claimant] can still do despite [her] impairments” and whether she has impairment-related
limitations or restrictions); see Watkins, 350 F.3d at 1301 (requiring the ALJ to consider, among
other things, the degree to which the physician’s opinion is supported by relevant evidence, and
the consistency between the opinion and the record as a whole); Clifton v. Chater, 79 F.3d 1007,
1010 (10th Cir. 1996) (stating that the ALJ is required to discuss the significantly probative
evidence that she rejects). As set forth in the PFRD, it is not clear that the ALJ’s decision comports
with these legal standards. (ECF No. 30 at 16.)
Relatedly, the opinions of Plaintiff’s treating therapists as, “other sources,” with “greater
knowledge of [her] functioning over time” may, under some circumstances, outweigh the opinion
of a medical source. SSR 06-03p, 2006 WL 2329939, at *6. (ECF No. 30 at 19.) While the ALJ
may not necessarily have erred in rejecting the opinions of LPCC Rabka and LPAT Zomherhuis
in favor of the opinions of Drs. Brimberg, Mihm, Simutis, and Adamo, the Court agrees with the
Magistrate Judge’s conclusion that the ALJ’s reasons for doing so were not properly supported by
citations to substantial evidence in the record or by a clear application of the governing legal
principles. (ECF No. 30 at 19-22.) On remand, should the ALJ reject the opinions of LPCC Rabka

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and LPAT Zomerhuis, the ALJ’s reasoning should be supported by substantial evidence in the
record and should reflect the ALJ’s application of governing legal standards, particularly those set
forth in SSR 06-03p, 2006 WL 2329939, at *4-5, to these opinions.
B.

Defendant’s Reliability Objection to the September 2016 Opinions of
Dr. Sievert and LPAT Zomerhuis

Defendant also objects to the PFRD on the ground that the opinions of LPAT Zomerhuis
and Dr. Sievert were unreliable because they assessed Plaintiff as having work-preclusive
limitations after she returned to work in 2016. (ECF No. 31 at 2.) The record reflects that Dr.
Sievert’s September 2016 opinion was based upon Plaintiff’s medical history from 2011 through
the date of the examination; and LPAT Zomerhuis’ September 2016 opinion was based on
Plaintiff’s medical history from September 2015 through the date of the examination. (AR. 1261,
1406.) That Plaintiff returned to work in August 2016—outside the closed period of disability
does not constitute substantial evidence from which to conclude that Dr. Sievert and LPAT
Zomherhuis’ opinions were unreliable. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004)
(“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”); Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (stating the
general proposition that the ALJ’s findings must be supported by substantial evidence, and that all
relevant evidence must be considered in making these findings). Defendants’ objection to the
contrary is not persuasive.
C.

The Court Agrees with the Magistrate Judge’s Conclusion that the ALJ
Did Not Adequately Evaluate the Opinions of Plaintiff’s Treatment
Providers According to the Governing Legal Standards

Defendant objects, generally, to the Magistrate Judge’s conclusion that the ALJ did not
sufficiently explain her weighing of the regulatory factors for evaluating medical opinions. (ECF
No. 31 at 3.) Defendant argues that the ALJ “summarized the medical evidence, discussed each
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of the opinions, and gave valid regulatory reasons for the weight accorded.” (ECF No. 31 at 3.)
Relying on the principle, stated in Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), that
the ALJ was not required to articulate every regulatory factor in evaluating medical opinions,
Defendant argues that the ALJ’s opinion was “sufficient.” (ECF No. 31 at 3.) The Court does not
agree.
Having reviewed the record, the Court agrees with the Magistrate Judge’s conclusion that
the ALJ’s decision does not reflect 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” pursuant to the governing legal
standards set forth in Watkins, 350 F.3d at 1301. (ECF No. 30 at 17.) The ALJ’s analysis of the
opinions of LPCC Rabka and LPAT Zomherhuis was similarly lacking. As set forth in the PFRD,
in rejecting these “other source” opinions, the ALJ should have, but failed to, discuss relevant
factors such as: the length of the treatment relationship; the consistency of their opinions with the
substantial evidence in the record; and the degree to which their opinions were supported by their
own treatment notes. (ECF No. 30 at 19-20.) SSR 06-03p, 2006 WL 2329939, at *4-5. Although
“[t]he ALJ is not required to mechanically apply [every regulatory factor] in a given case”
Ringgold v. Colvin, 644 F. App’x 841, 843 (10th Cir. 2016), she must nevertheless 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.” SSR 06-03p, 2006
WL 2329939, at *1. Because the ALJ appears to have disregarded substantial portions of the

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record that supported the opinions of Plaintiff’s treatment providers while selectively relying on
those portions of the record that supported her determination of non-disability, and, in so doing,
appears to have disregarded the factors that could have facilitated the Court’s review of her
analysis of these opinions, the Court agrees with the Magistrate Judge’s conclusion that remand is
appropriate. Defendant’s objection to the contrary is not persusive.
D.

The ALJ Ignored Substantial Evidence in the Record

Finally, Defendant objects to the Magistrate Judge’s conclusion that the ALJ relied on
selective, or cherry-picked, evidence in rejecting the opinions of Dr. Sievert, LPCC Rabka, and
LPAT Zomerhuis. (ECF No. 30 at 14, 20-21; ECF No. 31 at 4.) Citing Wall v. Astrue, 561 F.3d
1048, 1067 (10th Cir. 2009), for the proposition stated therein that “[t]he ALJ is not required to
discuss every piece of evidence[,]” Defendant generally asserts that the ALJ’s decision is
supported by substantial evidence. (ECF No. 31 at 4.)
While the ALJ was not required to discuss every piece of evidence, it is well established
that an ALJ “may not pick and choose among medical reports, using portions of evidence favorable
to his position while ignoring other evidence.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(10th Cir. 2012). As set forth in the PFRD, Dr. Sievert’s opinion was based on Plaintiff’s medical
records spanning five years. (ECF No. 30 at 17.) Plaintiff’s medical records reflected that she
consistently experienced significant psychological symptoms throughout that time frame. (ECF
No. 30 at 17.) The ALJ’s cursory observation that Plaintiff’s treatment records “show ongoing
symptoms” and that Dr. Sievert “can be expected to have some familiarity” with Plaintiff’s mental
health condition, does not adequately explain why the ALJ chose to reject Dr. Sievert’s
substantially supported opinions in favor of the opinions of Dr. Brimberg—who examined Plaintiff
once, for fifteen minutes, and the consultative medical examiners who never examined Plaintiff.

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20 C.F.R. § 404.1527(c)(2) (stating that, generally, more weight is given to a given more weight
than the opinions of treating sources).
Furthermore, as discussed in the PFRD, the ALJ’s reasons for rejecting the opinions of
Plaintiff’s therapists similarly exemplify that the ALJ engaged in impermissible evidentiary
cherry-picking to support her decision. (ECF No. 30 at 20-21.) Without reciting the Magistrate
Judge’s analysis, with which the Court agrees, the ALJ overlooked the therapists’ treatment notes,
failed to analyze the degree to which they were consistent with Dr. Sievert’s treatment notes, and
rejected the therapists’ opinions based on a selection of records from other treatment providers (a
single treatment note from a social worker, and a single note from therapist who treated Plaintiff
after LPAT Zomerhuis ended her treatment of Plaintiff), and relied heavily on the fact that Plaintiff
attended school and that she obtained employment after the closed period of disability. See Hamlin
v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (stating that the Court must determine whether
an ALJ’s findings are supported by substantial evidence; and 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”). While the Court will not weigh, or re-weigh the evidence, Qualls v.
Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000), the Court cannot conduct a meaningful review of an
ALJ’s decision where the analysis omitted substantial portions of relevant evidence while relying
on what appears to be carefully-selected portions of the record that support a determination of nondisability.
In sum, the Court agrees with the Magistrate Judge’s conclusion that the ALJ cherry-picked
evidence to support her conclusion. Defendant’s objection in this regard shall be overruled.

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III. Conclusion
For all of the above reasons, and for the additional reasons stated in the Magistrate Judge’s
PFRD, the Court finds that Defendant’s Objections are without merit, and that the Magistrate
Judge’s PFRD should be adopted in whole. IT IS THEREFORE ORDERED as follows:
1.

Defendant’s Objections to Magistrate’s Recommendation (ECF No. 31) are

OVERRULED;
2.

The Magistrate Judge’s Proposed Findings and Recommended Disposition

(ECF No. 30) is ADOPTED; and,
3.

This matter is remanded for proceedings consistent with the Magistrate Judge’s

Proposed Findings and Recommended Disposition.
IT IS SO ORDERED.

_________________________________________
JUDITH HERRERA
United States District Judge

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