Smith v. Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough granting 21 Motion to Remand to Agency (kfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JENNIFER RUTH SMITH,
Plaintiff,
vs.

Civ. No. 18-481 SCY

ANDREW SAUL, Commissioner of Social
Security,1
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record filed
August 24, 2018, Doc. 12, in support of Plaintiff Jennifer Ruth Smith’s Complaint, Doc. 1,
seeking review of the decision of Defendant Andrew Saul, Commissioner of the Social Security
Administration, denying Plaintiff’s claim for disability insurance benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 401 et seq. On December 28, 2018, Plaintiff filed her Motion
To Reverse And Remand For Payment Of Benefits, Or In The Alternative, For A Rehearing,
With Supporting Memorandum. Doc. 21. The Commissioner filed a Brief in Response on
February 28, 2019, Doc. 25, and Plaintiff filed a Reply on March 30, 2019, Doc. 26. 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 and is GRANTED.

1

Andrew Saul was sworn in as Commissioner of the Social Security Administration on June 17,
2019 and is automatically substituted as a party pursuant to Federal Rule of Civil Procedure
25(d).
2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all
proceedings and to enter an order of judgment. Doc. 20.

I.

Background and Procedural Record
Claimant Jennifer Ruth Smith suffers from the following severe impairments: multiple

ventricular shunt revisions for hydrocephalus3 and scoliosis. Administrative Record (“AR”) at
4500. She alleges that she became disabled as of July 21, 2010. AR 131, 4498. She has a high
school degree and is working on a college degree, having attended three years of college as of
the time of her application. AR 165. She has past work as a credit authorizer and a cashier/
checker. AR 4546.
On May 10, 2011, Ms. Smith filed a claim of disability under Title XVI. AR 4498. Her
applications were initially denied on December 22, 2011 (AR 61), and upon reconsideration on
March 15, 2012 (AR 62). Administrative Law Judge (“ALJ”) Ann Farris conducted a hearing on
July 31, 2013. AR 29. Ms. Smith appeared in person at the hearing with attorney representative
Gary Martone. AR 29. The ALJ took testimony from Ms. Smith and an impartial vocational
expert (“VE”), Pamela Bowman. AR 27, 118.
On December 2, 2013, ALJ Farris issued an unfavorable decision. AR 9-28. After the
Appeals Council denied review on March 10, 2015, AR 1, Ms. Smith appealed to federal court.
On November 12, 2015, the Commissioner stipulated to a remand. AR 4551-52. The Court
entered its remand order on November 13, 2015. AR 4553. On remand, on March 25, 2016, the
Appeals Council instructed the ALJ to reconsider her evaluation of the opinion of consultative
examiner Dr. Karl Moedl. AR 4561-62.

3

Hydrocephalus is the buildup of fluid in the cavities (known as ventricles) deep within the
brain. The excess fluid increases the size of the ventricles and puts pressure on the brain. A shunt
is an implant that diverts fluid from the ventricles to another body region where it will be
absorbed. Ms. Smith’s hydrocephalus is congenital. AR 4501.

2

On September 20, 2016, Ms. Smith appeared and testified at a second hearing before ALJ
Farris. AR 4657. She appeared with her attorney, Felix Martone. Id. The ALJ took testimony
from Ms. Smith and VE Karen Provine. Id. ALJ Farris issued an unfavorable decision on
November 3, 2016. AR 4495-4517. On March 30, 2018, the Appeals Council denied review. AR
4486. It found no basis for changing the ALJ’s decision and found that the ALJ complied with
the orders of this Court and the Appeals Council. AR 4487. The ALJ’s decision is the
Commissioner’s final decision for purposes of judicial review. Id. Because the parties are
familiar with Ms. Smith’s medical history, the Court reserves discussion of the medical records
relevant to this appeal for its analysis.
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 id. § 1382(a)(3)(A) (pertaining to supplemental security income disability
benefits for adult individuals). The Social Security Commissioner has adopted the familiar fivestep sequential evaluation process (“SEP”) 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.”4 If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her medical condition.

4

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

3

(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, she 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
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 listings described in Appendix 1 of the regulations, the ALJ
must determine at step four whether the claimant can perform her “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 [her 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 her 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).

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).

4

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 (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

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). “[W]hatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019). Substantial evidence “is ‘more than a mere scintilla.’” Id. (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It means—and means only—such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation
marks omitted).
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
5

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). But
where the reviewing court “can follow the adjudicator’s reasoning” in conducting its review,
“and can determine that correct legal standards have been applied, merely technical omissions in
the ALJ’s reasoning do not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(10th Cir. 2012). The court “should, indeed must, exercise common sense.” Id. “The more
comprehensive the ALJ’s explanation, the easier [the] task; but [the court] cannot insist on
technical perfection.” Id.
III.

Analysis
In support of her Motion to Remand, Ms. Smith raises three main arguments: (1) the ALJ

erred at step four by relying on Ms. Smith’s activities of daily living to discredit her subjective
symptom evidence related to headaches; discounting evidence of Ms. Smith’s scoliosis
symptoms; incorrectly assessing the medical opinion evidence from Dr. Karl Moedl and Dr. John
Owen; and failing to follow the instructions in the Appeals Council’s March 25, 2016 remand
order, Doc. 21 at 12-23; (2) the ALJ erred at step five by failing to clarify the VE testimony;
failing to adopt the VE testimony; failing to assess whether the identified number of jobs is
significant; and failing to resolve a conflict between the VE testimony and the Dictionary of
Occupational Titles (“DOT”), Doc. 21 at 23-26; and (3) the ALJ failed to rule on Ms. Smith’s
request to reopen a prior application, Doc. 21 at 27. Ms. Smith asks the Court to remand with
instructions for the Commissioner to issue disability benefits; in the alternative, she requests a
remand for rehearing. Doc. 21 at 27.
The Court agrees that the ALJ erred at step four. At step four, the ALJ found that, despite
her severe impairments, Ms. Smith is capable of performing most of the range of sedentary work.
6

AR 4501. The Court finds that the ALJ improperly disregarded, without an explanation, opinion
evidence from a consulting psychologist, Dr. Owen, that Ms. Smith has moderate to marked
difficulty adapting to change in the workplace, moderate difficulty dealing with stress in the
workplace, and moderate difficulty focusing and persisting at most work tasks. The Court will
remand for rehearing and deny Ms. Smith’s request to remand with instructions to award
disability benefits. Because Ms. Smith’s remaining arguments may be affected by the ALJ’s
treatment of this case on remand, the Court will not address those arguments. Wilson v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
A.

Legal Standard

The ALJ is required to evaluate every medical opinion she receives. Doyal v. Barnhart,
331 F.3d 758, 764 (10th Cir. 2003). The regulations require the ALJ to consider several specific
factors in weighing an opinion, such as the supportability of the opinion and its consistency with
the record as a whole. 20 C.F.R. § 416.927.5 Before rejecting an opinion, the ALJ must provide
specific and legitimate reasons for this rejection. Doyal, 331 F.3d at 764. The ALJ’s reasons are
reviewed for substantial evidence. Id.
The Tenth Circuit held in Haga v. Astrue that “[a]n ALJ is not entitled to pick and choose
through an uncontradicted[6] medical opinion, taking only the parts that are favorable to a finding
of nondisability.” 482 F.3d 1205, 1208 (10th Cir. 2007). In Haga, a state agency examining
psychological consultant reviewed the record and recommended additional testing. 482 F.3d at

5

This regulation applies to claims, such as the current one, filed before March 27, 2017.

6

Although the parties do not brief this issue, it appears that Dr. Owen’s opinion is
uncontradicted. There are no psychological opinions in the record other than Dr. Owen’s. The
reviewing state agency consultants accorded his opinion “great weight” and did not perform their
own mental RFC assessment. AR 68, 70.

7

1207. The ALJ agreed and the doctor did his additional tests. Id. “[P]art of his detailed response
was to fill out a mental RFC form, on which he marked appellant moderately impaired in seven
out of ten functional categories.” Id. While the ALJ’s RFC incorporated three of these moderate
limitations, it did not incorporate the other four. Id. Further, the ALJ did not provide an
explanation for rejecting the remaining four moderate limitations and “the evidence on which the
ALJ explicitly relied in his decision [did] not imply an explanation . . . .” Id.
On appeal, the Tenth Circuit noted “it is simply unexplained why the ALJ adopted some
of [the doctor]’s restrictions but not others.” Id. at 1208. Although an “ALJ is entitled to resolve
any conflicts in the record,” the court stressed that an ALJ must actually identify the evidence
that conflicts with the doctor’s medical opinion or RFC assessment. Id. In other words, the ALJ
must either accept and incorporate the consulting doctor’s opinion or explain why each relevant
part of the opinion is disregarded. Id.
B.

The ALJ Erred In Her Discussion Of Opinion Evidence From Dr. Owen.

In December 2011, consulting psychologist John P. Owen, Ph.D., performed an
evaluation of Ms. Smith. AR 417-19. Dr. Owen found Ms. Smith friendly, cooperative and able
to understand simple questions and instructions. AR 418. He estimated that she functions in at
least the average range of mental ability. Id. Dr. Owen discussed at length Ms. Smith’s problems
with her shunt malfunctions and her stress. AR 417-18. He then provided his opinion that
Ms. Smith can understand simple questions and instructions. She would have
marked difficulty dealing with detailed, complex communication. She would have
moderate difficulty dealing with stress in the workplace. She would have
moderate difficulty interacting with others in an employment setting. She would
have moderate difficulty focusing and persisting at most work tasks. She would
have moderate to marked difficulty adapting to change in the workplace.
AR 419.

8

The ALJ summarized Dr. Owen’s opinion and accorded it “partial weight” because “his
limitations on social functioning and adaptation are unfounded.” AR 4504. The ALJ stated that
“[i]t appears that Dr. Owens [sic] appropriately bases these non-exertional limitations on the
claimant’s physical pain symptomology, rather than any cognizable mental health disorder.” AR
4504. The ALJ explained:
Specifically, medical professionals throughout the record have noted no behavior
defects and a pleasant demeanor. In daily life, the claimant resides with and takes
care of her two minor children, sees other family members on a weekly basis, and
frequents public places like the grocery store. Neither the allegations nor the
medical records indicate that she has a tendency to socially isolate or lacks the
capacity to interact independently, appropriately, effectively and on a sustained
basis with other individuals, such as family members, friends or medical
providers.
AR 4504-05.
There are three problems with the ALJ’s reasoning. First, the ALJ’s explanation concerns
only Ms. Smith’s social functioning and does not include any discussion of Dr. Owen’s opinions
that Ms. Smith has “moderate to marked difficulty adapting to change in the workplace”;
“moderate difficulty dealing with stress in the workplace”; and “moderate difficulty focusing and
persisting at most work tasks.” AR 419. The ALJ simply never mentions these limitations. This
is error under Haga.
Second, even though the ALJ largely rejected Ms. Smith’s subjective complaints of pain,
AR 4502-04, the ALJ contradictorily determined that Dr. Owen “appropriately” based his
opinion on Ms. Smith’s “pain symptomology.” AR 4504. Thus, the ALJ’s opinion is internally
inconsistent.
Third, the ALJ’s statement that Dr. Owen based his opinion on Ms. Smith’s “pain
symptomology” is simply incorrect. Dr. Owen never explained to what extent he was crediting
Ms. Smith’s allegations of pain. He never found that Ms. Smith’s limitations were the product of

9

pain rather than mental health issues. Nor would it have been logical for him to do so. Most of
the non-exertional limitations he assessed typically stem from mental health issues rather than
issues with physical pain. For example, the Administration recognizes that the inability to deal
with routine work stress is characteristic of mental illness, not pain symptomology. SSR 83-15,
1985 WL 56857, at *6 (“Mental illness is characterized by adverse responses to seemingly trivial
circumstances. The mentally impaired may cease to function effectively when facing such
demands as getting to work regularly, having their performance supervised, and remaining in the
workplace for a full day.”).7
For the above stated reasons, the Court concludes that the ALJ’s rationale for partially
rejecting Dr. Owen’s opinion is not supported by substantial evidence and, further, that it was
error for the ALJ not to address all of the limitations Dr. Owen assessed.
C.

The ALJ’s RFC Does Not Account For The Limitations Dr. Owen Assessed.

The Commissioner contends that the ALJ need not have discussed each of the limitations
Dr. Owen assessed because the ALJ otherwise accounted for those restrictions in her RFC. Doc.
24 at 16-17. This RFC included limiting Ms. Smith to “simple routine tasks” and specifying that
she “cannot perform work at a production rate pace or perform tandem tasks.” Id. The
Commissioner cites Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016), for the proposition
that an ALJ need not repeat the moderate limitations a doctor assesses if the ALJ’s description of
what work the claimant can perform incorporates those same limitations. Doc. 25 at 16. Smith is
not quite on point. That decision dealt with medical opinions expressed on a standard form state

7

Of course, physical pain could theoretically also make it difficult for a person to deal with
stress in the workplace. Dr. Owen never made such a finding, however, and it would have been
unusual for him to do so because difficulty coping with stress is typically attributable to a mental
limitation rather than physical pain.

10

agency consultants use on initial review and reconsideration of a disability application. Smith,
821 F.3d at 1268-69. Smith teaches that the ALJ must take into consideration the consulting
doctor’s opinion, but that opinion is not necessarily expressed in the check-the-boxes-style
section I that precedes the narrative-style opinion in section III of the standard form. Id. at 1269
n.2. In Smith, the court held that an ALJ is not required to incorporate or discuss additional
moderate limitations when the ALJ’s RFC is consistent with the consulting doctor’s opinion on
how the claimant is limited in the ability to perform work-related activities. Id. at 1270; see also
Vialpando v. Berryhill, No. 18-cv-425 SCY, 2019 WL 1865205, at *5-7 (D.N.M. Apr. 25,
2019).8 In this case, Dr. Owen did not express his opinion in the form of checkbox-style lists.
Instead, he expressed his opinion in narrative language as follows:
Ms. Smith can understand simple questions and instructions. She would have
marked difficulty dealing with detailed, complex communication. She would have
moderate difficulty dealing with stress in the workplace. She would have
moderate difficulty interacting with others in an employment setting. She would
have moderate difficulty focusing and persisting at most work tasks. She would
have moderate to marked difficulty adapting to change in the workplace.
AR 419. The ALJ’s RFC is inconsistent with this narrative assessment. This differs from the
situation in Smith, where the ALJ essentially adopted the doctor’s narrative as the claimant’s
RFC. 821 F.3d at 1269 (“The administrative law judge arrived at a similar assessment . . . .”).

8

In Vialpando, this Court provided three situations where the absence of ALJ discussion about a
moderate limitation constitutes no error. 2019 WL 1865205, at *6. One is when the ALJ
justifiably gives the doctor’s opinion little to no weight. That does not apply here because the
ALJ gave Dr. Owen’s opinion “partial weight.” AR 4504. Second, an ALJ need not discuss a
moderate limitation when the assignment to unskilled or simple and routine work can incorporate
or otherwise account for the moderate limitation. As explained below, the ALJ’s RFC in this
case did not account for Dr. Owen’s moderate or marked limitations. Infra, pp. 12-13. Finally,
when the doctor who assessed the moderate limitation has also reached an opinion on residual
functional capacity in his or her narrative discussion, the ALJ may incorporate that assessment
without discussing the moderate limitations also assessed by the doctor. That is not the case here
because Dr. Owen’s opinion consisted of the moderate-to-marked limitations themselves. AR
417-19.

11

Thus, to the extent Smith has relevance, it weighs against, rather than for, the Commissioner’s
position.
In arguing otherwise, the Commissioner addresses some, but not all of the limitations Dr.
Owen found Ms. Smith to have. Specifically, the Commissioner argues that the ALJ accounted
for Ms. Smith’s “marked difficulty dealing with detailed complex communication” by restricting
Ms. Smith to “simple, routine tasks” and dealt with Ms. Smith’s “moderate difficulty focusing
and persisting at most work tasks” by finding that Ms. Smith “cannot perform work at a
production rate pace or perform tandem tasks.” Doc. 25 at 16-17. The Commissioner, however,
does not posit how the ALJ dealt with Dr. Owen’s assessments that Ms. Smith “would have
moderate difficulty dealing with stress in the workplace,” “moderate difficulty interacting with
others in an employment setting,” and “moderate to marked difficulty adapting to change in the
workplace.”
According to the Administration, “the ability to respond appropriately to changes in (a
routine) work setting” is a mental ability needed for any job. POMS § DI 25020.010, § B(a)(a).9
And so is the ability to deal with stress. SSR 85-15, 1985 WL 56857, at *5-6 (Jan. 1, 1985)
(“The reaction to the demands of work (stress) is highly individualized, and mental illness is
characterized by adverse responses to seemingly trivial circumstances. . . . Because response to
the demands of work is highly individualized, the skill level of a position is not necessarily
related to the difficulty an individual will have in meeting the demands of the job.”). The
limitations Dr. Owen assessed cannot be ignored if they relate to crucial work skills. Haga, 482

9

The Social Security Administration Program Operations Manual System (“POMS”) is “a set of
policies issued by the Administration to be used in processing claims.” McNamar v. Apfel, 172
F.3d 764, 766 (10th Cir. 1999). The reviewing court will defer to the POMS provisions unless
they are arbitrary, capricious, or contrary to law. Ramey v. Reinertson, 268 F.3d 955, 964 n.2
(10th Cir. 2001).

12

F.3d at 1208 (even “a moderate impairment is not the same as no impairment at all”). Because
the ALJ failed to discuss the moderate-to-marked limitations Dr. Owen assigned to Ms. Smith
and because at least three of these limitations are unaccounted for in the ALJ’s RFC, the Court
cannot affirm the ALJ’s decision.
D.

The Court Will Remand For A Rehearing.

Ms. Smith requests that the Court order the payment of benefits outright rather than
remand for a rehearing. Doc. 21 at 27. The Tenth Circuit has indicated that “[w]hether or not to
award benefits is a matter of . . . discretion.” Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir.
2006). Factors relevant to the decision are “the length of time the matter has been pending” and
“whether or not given the available evidence, remand for additional fact-finding would serve any
useful purpose but would merely delay the receipt of benefits.” Id. (internal quotation marks and
alterations omitted). In Salazar, the Tenth Circuit indicated that “more than five years” is a
lengthy amount of time, weighing in favor of awarding benefits outright. Id. Ms. Smith is correct
that her application has been pending for an even longer time—eight years.
On the second factor, however, the Court does not agree that additional fact-finding
would serve no useful purpose. The rule is that the ALJ must sufficiently explain her decision,
Haga, 482 F.3d at 1208, not that she must accept Dr. Owen’s opinion in full. The ALJ was
understandably confused by Dr. Owen’s opinion, since Dr. Owen diagnosed Ms. Smith with no
cognizable mental health disorders, AR 418, yet arrived at a host of non-exertional limitations,
AR 419, the basis for which is unexplained. In addition, there is no evidence in this record that
Ms. Smith has sought any mental health treatment. At the hearing, however, ALJ Farris did not

13

ask Ms. Smith about her reasons for not seeking such treatment. AR 4525; see SSR 16-3p,10
2017 WL 5180304, at *9 (Oct. 25, 2017) (“[I]f the frequency or extent of the treatment sought by
an individual is not comparable with the degree of the individual’s subjective complaints . . . we
may find the alleged intensity and persistence of an individual’s symptoms are inconsistent with
the overall evidence of record. We will not find an individual’s symptoms inconsistent with the
evidence in the record on this basis without considering possible reasons he or she may not . . .
seek treatment consistent with the degree of his or her complaints.”). Therefore, further record
development could be useful. Ultimately, it is not this Court’s role to determine whether Dr.
Owen’s opinion should be accepted or rejected. The Court must remand for the ALJ to do so in
the first instance, with a proper explanation.
IV.

Conclusion
For the reasons stated above, Ms. Smith’s Motion To Reverse And Remand For Payment

Of Benefits, Or In The Alternative, For A Rehearing, With Supporting Memorandum (Doc. 21)
is GRANTED.

_____________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge
Presiding by Consent

10

SSR 16-3p is applicable for decisions made on or after March 28, 2016. See 2017 WL
5180304, at *13 n.27.

14