Lewnes v. Social Security Administration

Filing 24

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
JACQUELINE D. LEWNES,
Plaintiff,
v.

1:18-cv-00275-LF

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Jacqueline D. Lewnes’s Motion to
Reverse or Remand for a Rehearing with Supporting Memorandum (Doc. 17), which was fully
briefed on October 16, 2018. See Docs. 19, 20, 21. The parties consented to my entering final
judgment in this case. Docs. 4, 7, 8. Having meticulously reviewed the entire record and being
fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) improperly
rejected the opinion of Ms. Lewnes’s treating therapist, Rose Wolfenbarger, LPCC. 1 I therefore
GRANT Ms. Lewnes’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

1
2

Licensed Professional Clinical Counselor.

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.

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). “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

2

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).
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. Lewnes was born in 1966, earned a bachelor’s degree in fine arts, and worked for

many years running her own housecleaning business (working approximately eight hours per
week). AR 39, 190, 225. 4 Ms. Lewnes filed an application for disability insurance benefits
(“DIB”) on September 24, 2014 and an application for supplemental security income (“SSI”) on

3

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

4

Document 12-1 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.
3

November 6, 2014, alleging disability since December 16, 2012 due to post traumatic stress
disorder (“PTSD”). AR 190–92, 192–97, 224. 5 The Social Security Administration (“SSA”)
denied her DIB claim initially on February 14, 2015. AR 122–26. The SSA denied her DIB
claim on reconsideration on July 7, 2015. AR 130–32. Ms. Lewnes requested a hearing before
an ALJ. AR 144–45. On February 3, 2017, ALJ Michael Leppala held a hearing. AR 31–102.
ALJ Leppala issued his unfavorable decision on May 3, 2017. AR 7–23.
The ALJ found that Ms. Lewnes met the insured status requirements of the Social
Security Act through December 31, 2018. AR 12. At step one, the ALJ found that Ms. Lewnes
had not engaged in substantial, gainful activity since December 16, 2012, her alleged onset date.
Id. At step two, the ALJ found that Ms. Lewnes’s PTSD and depressive disorder were severe
impairments. Id. The ALJ found that Ms. Lewnes’s right knee injury was a non-severe
impairment. Id. At step three, the ALJ found that none of Ms. Lewnes’s impairments, alone or
in combination, met or medically equaled a Listing. AR 13–14. Because the ALJ found that
none of the impairments met a Listing, the ALJ assessed Ms. Lewnes’s RFC. AR 14–17. The
ALJ found Ms. Lewnes had the RFC to do the following:
lifting and/or carrying 50 pounds occasionally and 25 pounds frequently; standing
and/or walking for about 6 hours in an 8-hour workday, and sitting for about 6
hours in an 8-hour workday, with normal breaks. She can respond appropriately
to supervision, coworkers, and work situations, deal with routine changes in work
setting, and maintain concentration[,] persistence, and pace for up to and
including two hours at a time with normal breaks throughout a normal workday.
The Claimant is limited to occasional interaction with the public and frequent
interaction with coworkers.
AR 14.

5

For reasons that are unclear to the Court, the SSA only moved forward with Ms. Lewnes’s DIB
claim. Despite Ms. Lewnes’s application for SSI, there do not appear to be any other documents
in the record referencing her SSI claim.
4

At step four, the ALJ concluded that Ms. Lewnes’s prior work as a housecleaner did not
meet the “recency, earnings, and duration requirements of past relevant work.” AR 17. The ALJ
concluded that Ms. Lewnes was not capable of performing any past relevant work because she
did not have any past relevant work. Id. The ALJ found Ms. Lewnes not disabled at step five
because she could perform jobs that exist in significant numbers in the national economy, such as
kitchen helper and hospital cleaner. AR 17–18. On May 8, 2017, Ms. Lewnes requested that the
Appeals Council review the ALJ’s unfavorable decision. AR 189. On January 23, 2018, the
Appeals Council denied the request for review. AR 1–6. Ms. Lewnes timely filed her appeal to
this Court on March 23, 2018. Doc. 1. 6
IV.

Ms. Lewnes’s Claims
Ms. Lewnes raises two arguments for reversing and remanding this case: (1) the ALJ

improperly rejected the opinion of her treating therapist, Rose Wolfenbarger, LPCC (“LPCC
Wolfenbarger”); and (2) the ALJ failed to properly consider the opinion of her treating
physician, Dr. B.J. Davis. See Doc. 17. I find that the ALJ erred by failing to properly consider
the opinion of LPCC Wolfenbarger. Because I remand based on the ALJ’s failure to properly
analyze this opinion, I do not address the other alleged error, 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 consider the opinion of treating therapist, LPCC
Wolfenbarger.

6

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.
5

Ms. Lewnes argues that the ALJ erred in not discussing what weight he gave LPCC
Wolfenbarger’s opinion. Doc. 17 at 17. She further argues that the reasons the ALJ gave for
“dismissing” LPCC Wolfenbarger’s opinion are not valid. Id. at 17–18. The Commissioner
responds that “the ALJ gave good reasons for discounting [LPCC Wolfenbarger’s] extreme
opinion[s]” and urges the Court not to disturb the ALJ’s decision. Doc. 19 at 8. For the reasons
discussed below, I agree with Ms. Lewnes.
LPCC Wolfenbarger is considered an “other source” under the regulations. See SSR 0603p, 2006 WL 2329939, at *2 (Aug. 9, 2006). 7 An “other source” cannot give a “medical
opinion,” cannot establish the existence of a medically determinable impairment, and is not
considered a “treating source[].” Id. However, “other source” opinions “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.” Id. at *3. Opinions from “other sources” are weighed
using the same factors used to weigh opinions from acceptable medical sources. Id. at *4–*5;
Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007). Those factors are:
(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 [other source’s] opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5) whether or not the
[other source] is a specialist in the area upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to support or
contradict the opinion.
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (citation omitted); 20 CFR
§§ 404.1527(c), 416.927(c) (both effective March 27, 2017). The ALJ “should explain the

7

SSR 06-03p was rescinded “for claims filed on or after March 27, 2017.” See Federal Register
Notice Vol. 82, No. 57, p. 15263, effective March 27, 2017. Ms. Lewnes filed her claim in 2014,
making SSR 06-03p applicable to her case.
6

weight given to opinions from these ‘other sources,’ 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 *6.
In Frantz, the Tenth Circuit held that an ALJ erred by not discussing what weight he gave
an “other source” opinion on the severity and functional effects of the claimant’s limitations.
509 F.3d at 1302. It also is error for an ALJ to ignore evidence from an “other source” which
would support a finding of disability, “while highlighting evidence favorable to the finding of
nondisability.” Id.; see also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[I]n
addition to discussing the evidence supporting his decision, the ALJ also must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence
he rejects.”).
In this case, LPCC Wolfenbarger, who treated Ms. Lewnes at least 189 times between
2013 and 2017, AR 428, completed a Medical Assessment of Ability to Do Work-Related
Activities (Mental) on March 27, 2015, in which she opined that Ms. Lewnes had the following
limitations:
Understanding and Memory
•
•
•

Marked limitation in the ability to remember locations and work-like
procedures;
Marked limitation in the ability to understand and remember very short
and simple instructions;
Marked limitation in the ability to understand and remember detailed
instructions.

Sustained Concentration and Persistence
•
•

Marked limitation in the ability to carry out detailed instructions;
Marked limitation in the ability to perform activities within a schedule,
maintain regular attendance and be punctual within customary tolerance;

7

•
•

•
•
•
•

Marked limitation in the ability to work in coordination with/or proximity
to others without being distracted by them;
Marked limitation in the ability to 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;
Moderate limitation in the ability to carry out very short and simple
instructions;
Moderate limitation in the ability to maintain attention and concentration
for extended periods of time (i.e. 2-hour segments);
Moderate limitation in the ability to sustain an ordinary routine without
special supervision;
Moderate limitation in the ability to make simple work-related decisions.

Social Interaction
•
•
•
•
•

Marked limitation in the ability to interact appropriately with the general
public;
Marked limitation in the ability to ask simple questions or request
assistance;
Marked limitation in the ability to accept instructions and respond
appropriately to criticism from supervisors;
Marked limitation in the ability to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes;
Marked limitation in the ability to maintain socially appropriate behavior
and adhere to basic standards of neatness and cleanliness.

Adaptation
•
•
•

Marked limitation in the ability to respond appropriately to changes in the
workplace;
Marked limitation in the ability to travel in unfamiliar places or use public
transportation; and
Moderate limitation in the ability to be aware of normal hazards and take
adequate precautions.

AR 397–98.
The ALJ did not state what weight he gave LPCC Wolfenbarger’s opinion. Instead, the
ALJ merely stated the following:

8

In three medical source statements in January 2017 and March 2015, 8 R.
Wolfenbarger noted that the Claimant experienced poor appetite, feelings of
worthlessness and difficulty with concentration. She further noted that the
Claimant has fatigue, inability to relax and is easily startled. The therapist also
noted the Claimant’s impatience with the judgments/insensitive comments of
others. [Sh]e concluded that Claimant had moderate and several marked
restrictions. (Exhibits 6F, 8F, 9F, 11F). I considered that Ms. Wolfenbarger was
a mental health specialist and Claimant’s treating provider. However, she was not
an acceptable medical source. Furthermore, her assessment appears overstated
when compared to the Claimant’s reported improvements with regular counseling.
Her opinions are also inconsistent with the Claimant’s work activity and volunteer
[sic] with CASA, after the period when the claimant alleged she was disabled.
AR 16.
Ms. Lewnes argues that the ALJ erred in failing to state what weight he gave LPCC
Wolfenbarger’s opinions. Doc. 17 at 17. The Commissioner argues that “[w]hile the ALJ did
not state exactly what weight he gave [LPCC Wolfenbarger's] opinion, the decision makes clear
he discounted the extreme opinion.” Doc. 19 at 7 n.6 (quoting Oceguera v. Colvin, 658 F. App’x
370, 374 (10th Cir. 2016) (unpublished) (“Though the ALJ did not expressly state the weight she
gave to Dr. Klein’s opinion, her language makes clear that she accorded it little to no weight. . . .
Because we can ascertain the weight given and the reasons for that weight, we think the ALJ was
‘sufficiently specific’ in her discussion of Dr. Klein's opinion.”). Here, unlike in Oceguera, it is
not clear what weight the ALJ assigned to LPCC Wolfenbarger’s opinion. Instead, as in Frantz,
509 F.3d at 1302, “the ALJ referred to some of the evidence gleaned from [the other source’s]
treatment notes but did not discuss what weight he gave to her opinion on the severity of
[claimant’s] limitations and on the functional effect those limitations have on her overall ability

8

On March 27, 2015, LPCC Wolfenbarger completed a Medical Assessment of Ability to Do
Work-Related Activities (Mental) and Listings Forms 12.04 (Affective Disorders) and 12.06
(Anxiety Disorders). AR 397–400. On January 2, 2017, she again completed Listings forms
12.04 and 12.06. On February 28, 2017, she provided a letter discussing Ms. Lewnes’s work
attempt, which is not listed by the ALJ. AR 428.
9

to work. He ignored evidence from [the “other source”] that would support a finding of
disability while highlighting evidence favorable to the finding of nondisability.” As in Frantz,
this is error. Id.
Even if the Court assumed that the ALJ gave LPCC Wolfenbarger’s opinion little to no
weight, remand still is required. The first reason the ALJ gave for rejecting LPCC
Wolfenbarger’s opinion is legally incorrect. The second and third reasons he gave for rejecting
LPCC Wolfenbarger’s opinion are not “sufficiently specific,” and are not supported by
substantial evidence.
The first reason the ALJ gave for discounting LPCC Wolfenbarger’s opinion was that
“she was not an acceptable medical source.” AR 16. 9 As discussed above, however, the fact
that an opinion is from an “other source” is not a factor in deciding what weight to give that
opinion. While an “other source” cannot give a “medical opinion,” establish the existence of a
medically determinable impairment, or be considered a “treating source[],” “other source”
opinions “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.” SSR 06-03p, 2006 WL
2329939, at *2–*3. “Other source” opinions are to be weighed using the same factors used to
weigh medical opinions. Frantz, 509 F.3d at 1302.
The second reason the ALJ gave for discounting LPCC Wolfenbarger’s opinion—that
“her assessment appears overstated when compared to the Claimant’s reported improvement
with regular counseling,” AR 16—is not supported by any evidence. The Commissioner argues
that “the ALJ found that Ms. Wolfenbarger’s extreme opinion was inconsistent with her notes

9

The Court reads this as part of the reason the ALJ discounted LPCC Wolfenbarger’s opinion
because the sentence following this one begins with “[f]urthermore,” indicating that both
sentences support the same conclusion. See AR 16.
10

showing that [Ms. Lewnes] was improving with regular counseling.” Doc. 19 at 7. While the
consistency of an opinion is a valid factor to consider in weighing an “other source” opinion, the
ALJ did not point to any evidence that Ms. Lewnes sustained lasting improvement with regular
counseling. Instead, the Commissioner draws the Court’s attention to another part of the ALJ’s
opinion, in which he stated that:
With treatment, the claimant’s mental state has partially improved (Exhibit 5F, p.
10). In February 2015, her treating therapist, Rose Wolfenbarger, LPCC, noted
that she did not ‘seem to fit a disability candidate profile in the sense that she was
still seeking growth (personal) in spite of her limitations so [I] wonder how this
might complicate her process[.]” (Exhibit 5F, p.8).
Doc. 19 at 7–8 (quoting AR 15). The Court has reviewed Exhibit 5F, p.10 (AR 361), but does
not see any indication of lasting mental improvement reflected there. LPCC Wolfenbarger noted
on December 22, 2014 that Ms. Lewnes “Reviewed Goals & objectives—sees progress and
wants to continue with both,” and “Seems to be making healthy decisions for herself,” but the
notes don’t indicate sustained progress beyond this entry. See AR 361. The Court also does not
see how LPCC Wolfenbarger’s statement that Ms. Lewnes did not “fit a disability candidate
profile” is inconsistent with her opinion about Ms. Lewnes’s limitations. Instead, this February
25, 2015 treatment note seems to indicate nothing more than the fact that Ms. Lewnes continued
to try to improve, despite her limitations. The ALJ simply does not explain how these statements
show that Ms. Lewnes improved with regular counseling. As such, the Court is unable to follow
the ALJ’s reasoning. “[T]he discussion of the evidence in the determination or decision [must]
allow[] 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
*6.

11

In addition, LPCC Wolfenbarger’s treatment notes repeatedly document the fact that Ms.
Lewnes continued to suffer from significant mental health challenges. See AR 361, 12/10/14
(“Quit a couple of clients because saw them as disrespectful and uncooperative with her requests
of them. Had few days did not leave apt., unsettles her when she feels like that.”); AR 360,
2/17/15 (“Various challenges in life rt. now having to do with other people’s mistakes and/or
disrespect in one way or another. Feeling discouraged.”); AR 360, 2/24/15 (“Helped her identify
a safe place she can go to when she needs to.”); AR 359, 3/24/15 (“flashbacks triggered increase
cl[ient’s] anxiety doesn’t want to go anywhere.”); AR 358, 5/6/15 (left a group event because she
was “emotionally exhaust[ed]” and “triggered by a smell”); AR 357, 6/5/15 (“Didn’t want to
leave condo yesterday. . . Not trusting it seems . . . leading to [increased] stress, fears.”); AR 357,
6/10/15 (“Reviewed her week couple esp. challenging days with anxiety & not being validated
by people she encountered.”); AR 389, 6/17/15 (“Said only thought of suicide 2xs this past
wk.”); AR 389, 6/26/15 (“maxes out at about 2 hours of exposure to people before feels need to
get away from them and go home & hide.”); AR 388, 7/8/15 (“Clear is only able to work 2 hours
at a time.”); AR 388, 7/15/15 (“Picture fell off wall where is pet sitting & glass broke [which]
triggered cl[ient’s] anxiety & agitation. Seems to look at new people for new opportunities
presented from a hypervigilant perspective-from every possible angle she can think of looking
for potential harm.”); AR 388, 7/28/15 (“Seems hypervigilant in high gear.”); AR 388, 7/31/15
(“Seems hypervigilant to the max last wk. or so—believing maintenance man at condo kept
walking toward her, [people] in authority talking over her and/or interrupting, call police when
homeless man on property, etc.”); AR 386, 9/9/15 (“Rode on motorcycle to El Morro on Labor
Day & was triggered by wind on her back [resulting in] memories of mom hitting the back of her
head for no reason.”); AR 386, 9/16/15 (“noticing where & when is off balance and/or triggered-

12

knows has limits re how long around people for ex[ample].”); AR 385, 9/30/15 (“Definitely
seems challenged with PTSD symptoms.”); AR 385, 10/2/15 (noting that Ms. Lewnes’s
hypervigilance causes cleaning job that used to take 3 hours to now take 6 hours); AR 385,
11/4/15 (noting anxiety attacks and excessive sleeping over the past week); AR 384, 11/18/15
(noting a “not very stable week” with lack of sleep and hypervigilance); AR 383, 12/8/15 (noting
that Ms. Lewnes is “not able to clean houses much as takes more time than used to & can only
handle a few hrs. at a time”); AR 383, 12/22/15 (noting increased reactivity, anxiety, and
agitation); AR 382, 1/19/16 (noting that “3 hours is about what she can handle of the outside
world”); AR 381, 2/9/16 (“Spent much of last 4 days at home, not wanting to venture out.
Seems steps forward & steps backward.”); AR 378, 4/12/16 (noted that she was getting “too
angry too quickly” and was having “suicidal thoughts”); AR 377, 4/25/16 (“she can only w[or]k
3 hours at a time before she starts to go downhill—energy, tolerance, triggers, etc.”); AR 376,
5/31/16 (“Seems easy for her to start downing/self blaming if interaction with someone doesn’t
go as expected.”); AR 376, 6/10/16 (“triggered by for sale sign at her condo with it being against
the rules”); AR 375, 6/14/16 (“Shooting in Orlando got to her, triggered her, 1st 2 or 3 days
afterward spent a lot of time in bed . . . fear, not trusting people.”); AR 375, 6/24/16 (“several
anxiety attacks this week”); AR 374, 7/5/16 (“Got triggered by old time firecracker and then later
by fireworks & gunshots while in her appt. on July 4th.”); AR 370, 10/27/16 (“Challenges at
work—supervisor lying, peers not supportive, bored with parts of it.”); AR 370, 10/31/16
(“Finds self feeling anxious before goes into work. Could be PTSD symptoms related to not
feeling accepted & safe at work—time will tell.”); AR 369, 11/7/16 (“Bullied by 2 peers at work
[so] gave her 2 week notice.”); AR 369, 12/1/16 (“2 days ago depressed & stayed in bed most of

13

the day. Will figure out new coping strategy when doesn’t have option to stay in bed because
will be working.”).
The ALJ fails to support his assertion that Ms. Lewnes improved with regular counseling
with substantial evidence. As demonstrated above, LPCC Wolfenbarger’s treatment records
show that Ms. Lewnes continued to struggle with symptoms of PTSD throughout the treatment
period. The two treatment notes referenced by the ALJ amount to no more than a scintilla of
evidence and are insufficient. It is error for an ALJ to ignore evidence from an “other source”
opinion which would support a finding of disability, “while highlighting evidence favorable to
the finding of nondisability.” Frantz, 509 F.3d. at 1302.; see also Clifton, 79 F.3d at 1010 (“[I]n
addition to discussing the evidence supporting his decision, the ALJ also must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence
he rejects.”).
The third reason the ALJ gave for discounting LPCC Wolfenbarger’s opinion—that her
opinion is “inconsistent with the Claimant’s work activity and volunteer[ing] with CASA,” AR
16—also is not supported by substantial evidence. The “consistency between the opinion and
the record as a whole” is a valid factor for the ALJ to consider in deciding what weight to give an
“other source” opinion. See Robinson, 366 F.3d at 1082; 20 CFR §§ 404.1527(c), 416.927(c).
The Court, however, is unable to follow the ALJ’s reasoning as to how Ms. Lewnes’s volunteer
or paid work after her alleged onset date undermines LPCC Wolfenbarger’s opinion. Ms.
Lewnes argues that “the record does not bear out ALJ Leppala’s assertion that LPCC
Wolfenbarger’s [opinion is] inconsistent with [her] work and volunteer activities, because both
were short-lived and not representative of the ability to sustain full time work.” Doc. 20 at 3. I
agree.

14

Ms. Lewnes began training to volunteer with CASA in July of 2016, volunteered at one
event and was assigned one client in August, and quit in September. AR 371–73. It is not clear
how this short attempt at volunteering undermines LPCC Wolfenbarger’s opinion. Ms.
Lewnes’s work attempts were similarly short-lived and unsuccessful. In August of 2016, Ms.
Lewnes got a job doing “phone support” for approximately ten hours per week. AR 372. She
started training for this job at the end of August 2016. AR 372. On September 7, 2016, Ms.
Lewnes reported to her counselor that she was “liking her job [and] liking her coworkers.” AR
371. On October 5, 2016, Ms. Lewnes reported to her counselor that she was “enjoying her
work, [but was] tired by [the] end of [her] shift.” AR 370. By October 27, 2016, however, Ms.
Lewnes was reporting challenges at work and “feeling anxious before . . . work,” and she called
in sick to work. AR 370. On November 7, 2016, Ms. Lewnes reported being bullied by two
peers at work, and she gave her two-week notice to quit. AR 369.
Ms. Lewnes attempt to work for the United States Post Service (“USPS”) was similarly
short-lived and unsuccessful. At the time of the ALJ hearing, Ms. Lewnes had been working for
the USPS for two weeks as a substitute mail carrier. AR 42. She testified, however, that she
took twice as long to complete her mail route than what was expected, and that she mis-delivered
a lot of mail on her route. AR 42–43, 86. She was overwhelmed, anxious, and afraid of being
fired. AR 42, 51, 54, 82. Ms. Lewnes testified that she was not sure she could succeed at a job
that did not allow her time to regroup or reschedule as necessary, or one that required more than
three hours of work at a time, or one that required her to work with people. AR 72, 86. Less
than a month after the hearing, Ms. Lewnes submitted an affidavit stating that she had resigned
from her job on February 8, 2017. AR 291. She resigned because she thought she was going to
be fired, and she wanted to “preserve [her] dignity.” AR 291. On February 28, 2017, LPCC

15

Wolfenbarger wrote a letter opining that Ms. Lewnes’s PTSD was the root cause of her
resignation:
She has had at least one traumatic experience that involved the threat of actual
death or serious injury. As a result, with PTSD, people, situations, thoughts and
perspectives can trigger psychological and/or physiological reactivity and people
with that diagnosis, including Jacqui, do their best to avoid being exposed to
anything that might trigger them. She also wakes up a lot, is irritable and has
outbursts of anger, difficulty concentrating, hyper-vigilance and an exaggerated
startle response.
All of these symptoms [a]ffect her ability to feel safe, trust and retain information.
Since she started working at the Post Office these factors have come into play. . . .
AR 428. The ALJ did not discuss LPCC Wolfenbarger’s letter.
The ALJ offers no explanation of how Ms. Lewnes volunteer and work attempts are
inconsistent with LPCC Wolfenbarger’s opinion. The Court sees no obvious inconsistency. If
anything, Ms. Lewnes’s short-lived attempts at volunteering and working after her onset date
appear to show that she was not capable of maintaining sustained, gainful employment. This is
consistent with LPCC Wolfenbarger’s opinion. Absent a fuller explanation of how Ms.
Lewnes’s volunteer and work attempts show that she is not as limited as LPCC Wolfenbarger
concluded, the Court is unable to conclude that the ALJ’s opinion is supported by substantial
evidence.
Finally, the Commissioner argues that “the ALJ gave good reasons for discounting
[LPCC Wolfenbarger’s] extreme opinion, [and that] the ALJ’s decision should not be disturbed
on review.” Doc. 19 at 8. The Court does not agree. The cases the Commissioner cites are
distinguishable. Unlike Keyes-Zachary, 695 F.3d at 1163, the Court is unable to “follow the
adjudicator’s reasoning.” And, unlike Snowden v. Berryhill, 17cv232 CG, 2018 WL 443498, at
*5−*6 (D.N.M. Dec. 16, 2018) (unpublished), the ALJ failed to give good reasons supported by

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the record for rejecting the “other source” opinion. This case is remanded so that the ALJ can
explain how he weighed LPCC Wolfenbarger’s opinion, and the reasons for that weight.
VI.

Conclusion
The ALJ erred in failing to explain the weight he gave to LPCC Wolfenbarger’s opinion.

The Court remands so that the ALJ can explain how he weighed LPCC Wolfenbarger’s opinion,
using the proper regulatory factors. The Court does not reach Ms. Lewnes’s other claimed error,
as it “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.
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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