Williams v. Social Security Administration

Filing 30

REPORT AND RECOMMENDATIONS by Magistrate Judge Steven C. Yarbrough re 17 MOTION to Remand to Agency. Objections to R&R due by 8/15/2022. 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).) (kfo)

Case 1:20-cv-01313-JCH-SCY Document 30 Filed 08/01/22 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JONATHAN W.,1
Plaintiff,
v.

Case No. 20-cv-01313-JCH/SCY

KILOLO KIJAKAZI,
Acting Commissioner of
Social Security,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Plaintiff argues that the Commissioner committed error when she denied Plaintiff’s claim
for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff
argues that the ALJ failed to consider Plaintiff’s inability to wear pants and closed-toed shoes.
Plaintiff also argues that the ALJ failed to properly consider treating physician Dr. Bergsten and
consultative examiner Dr. DeBernardi’s opinions. On May 18, 2022, the Honorable Judith C.
Herrera referred this matter to me for proposed findings and a recommended disposition under
28 U.S.C. § 636(b). Doc. 29. I recommend that the Court remand this case based on the ALJ’s
failure to consider Plaintiff’s alleged inability to wear pants and closed-toed shoes as well as the
ALJ’s partially erroneous assessment of Dr. Bergsten’s opinion as described below.2

1

In the interest of privacy, this document uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. Where applicable, this document uses the
same designation for a non-governmental party’s immediate family member.
2

I reserve discussion of the background, procedural history, and medical records relevant to this
appeal for my analysis.

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APPLICABLE LAW
A.

Disability Determination Process

An individual is considered disabled if he 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. § 1382c(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.”3 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of her 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 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
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 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

3

“Substantial work activity is work activity that involves doing significant physical or mental
activities.” 20 C.F.R. §§ 404.1572(a), 416.972(a). The claimant’s “[w]ork may be substantial
even if it is done on a part-time basis or if [she] doe[es] less, get[s] paid less, or ha[s] less
responsibility than when [she] worked before.” Id. “Gainful work activity is work activity that
[the claimant] do[es] for pay or profit.” Id. §§ 404.1572(b), 416.972(b).
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most [the 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 the claimant’s past work. Third, the ALJ determines whether,
given the 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 (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 Servs., 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
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evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
1270, 1272 (10th Cir. 2008) (internal quotation marks omitted). “[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) (citations omitted). “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 (internal quotation marks omitted), 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) (internal
quotation marks omitted). Therefore, although an ALJ is not required to discuss every piece of
evidence, “[t]he record must demonstrate that the ALJ considered all of the evidence” and “a
minimal level of articulation of the ALJ’s assessment of the evidence is required in cases in
which considerable evidence is presented to counter the agency’s position.” Clifton v. Chater, 79
F.3d 1007, 1009-10 (10th Cir. 1996) (internal quotation marks omitted). 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.

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ANALYSIS
Plaintiff makes two arguments on appeal: that the ALJ failed to consider Plaintiff’s
inability to wear pants and closed-toed shoes due to pain at step four and that the ALJ failed to
properly consider the opinions of two physicians. I address each in turn.
I.

Plaintiff’s inability to wear pants and closed-toed shoes

Plaintiff argues that he testified that his fibromyalgia makes his body over-sensitized to
clothing, which means that he must wear open-toed shoes and shorts rather than the closed-toed
shoes and slacks that would be required for the jobs listed at step five. Doc. 17 at 24. He claims
that the ALJ failed to consider this evidence, which is prejudicial because it would have resulted
in a finding of disability. Id. Defendant responds that the ALJ is not required to discuss every
piece of evidence in the record and that the ALJ considered the record of symptoms of his
fibromyalgia, including sharp pain in his toes, ankles, and low back. Doc. 22 at 5-6.
Plaintiff’s testimony was that he could only wear closed-toed shoes and jeans or stiffer
pants for twenty minutes before becoming distracted by the pain. AR 44. He generally wears
open-toed orthopedic sandals unless it rains, in which case he “will suffer through a closed toe
shoe.” AR 43. A function report on August 12, 2019 also indicates that Plaintiff said “some of
his clothes hurt and irritate his body.” AR 321. Plaintiff’s attorney cross-examined the vocational
expert (“VE”) at the hearing and inquired whether the jobs the VE identified could be performed
while wearing open-toed shoes or shorts as opposed to office attire such as slacks and closedtoed shoes. AR 61-62. The VE stated that wearing open-toed shoes would be a special
accommodation and that office jobs, including all the jobs he had listed for the relevant
hypothetical, generally would not permit this attire. AR 62. However, the VE did clarify that

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there could be other jobs at the light or sedentary level that did not involve working in an office
setting, although he did not list any. Id.
The ALJ need not discuss every piece of evidence, but the “record must demonstrate that
the ALJ considered all of the evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.
1996); see 20 C.F.R. § 404.1529(a) (“We will consider all of your statements about your
symptoms, such as pain, and any description your medical sources or nonmedical sources may
provide about how the symptoms affect your activities of daily living and your ability to work.”
(emphasis added)). While the ALJ does not have to discuss all the claimant’s statements,
especially when they are cumulative or irrelevant, the ALJ must demonstrate that she considered
all the relevant statements. The ALJ can either address the allegations and find them not
supported by the record, or the ALJ can accept the allegations and incorporate them into the
RFC. Here, the ALJ did neither.
I find no evidence the ALJ considered the limitation on wearing clothing and shoes, and I
find that it is relevant to the claimant’s disability application. Plaintiff’s testimony and his
attorney’s colloquy with the VE establish that, if credited, this side effect of Plaintiff’s
fibromyalgia would prohibit him from working the jobs the ALJ designated at step five. Notably,
the ALJ at least partially credited Plaintiff’s symptoms, limiting him to “never” climbing ladders
or scaffolding due to “fibromyalgia symptoms including sharp pain in the toes, ankles and low
back.” AR 21. I therefore cannot assume that the ALJ rejected, wholesale, all of Plaintiff’s
subjective symptom evidence for the various reasons stated in the decision. Because the ALJ
made no specific mention of issues with Plaintiff’s clothing, her discussion of his fibromyalgia
symptoms leaves it unclear whether she took his allegations of limited attire into consideration,
and if so, why she rejected these allegations. This constitutes error.

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II.

Physician opinions

A. Background
Dr. Bergsten, Plaintiff’s treating physician, submitted a letter dated February 18, 2019.
AR 497. The general tone of Dr. Bergsten’s letter was that although Plaintiff has made
significant improvements with his current medication regimen, “[d]espite this improvement he is
still not able to work full-time and has been suffering from symptoms for over 5 years now.” Id.
The ALJ found the opinion unpersuasive because it was not supported by treatment records,
particularly a June 2018 record indicating that Plaintiff’s “overall quality of life has improved
dramatically with cannabis and antidepressants.” AR 23 (citing AR 374). The ALJ also finds the
letter unpersuasive because its contents are inconsistent with evidence from other sources
indicating that Plaintiff’s symptoms stabilized or improved with prescribed medication. AR 23.
In addition to the letter, Dr. Bergsten also submitted a medical source statement in
August 2019. AR 888; see also AR 23 (ALJ erroneously refers to this source as being submitted
in May 2019). Dr. Bergsten identified various limitations on Plaintiff’s ability to sit, stand, walk,
and lift. Id. at 888-91. The ALJ found this opinion unpersuasive because it was not consistent
with Plaintiff’s statements to Dr. Young-Rodriguez about how much he could sit, stand, walk,
and lift. AR 23 (citing AR 862).
Dr. DeBernardi, the consultative examiner, examined Plaintiff on April 26, 2019. She
outlined many of Plaintiff’s symptoms and the tests she administered, then concluded with the
statement that Plaintiff’s depression and anxiety “would likely impact his ability to be a
dependable employee or to tolerate changes in the work environment.” AR 870. The ALJ found
her opinion unpersuasive because “Dr. DeBernardi states the claimant’s ability to be a
dependable employee or tolerate changes in the work environment would be affected but she

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does not say how or to what extent.” AR 23. The ALJ also found her opinion inconsistent with
the records showing Plaintiff was stable or improved with medication, and with Plaintiff’s
activities of daily living. Id.
On appeal, Plaintiff argues that the Court should reverse because the ALJ failed to
consider the consistency of Dr. Bergsten and Dr. DeBernardi’s opinions. Doc. 17 at 24. He
argues that the ALJ failed to consider that improvement with treatment is not an inconsistency
with Dr. Bergsten’s opinion because Dr. Bergsten concurred that Plaintiff improved with
treatment. Id. at 25. He also argues that the ALJ fails to consider the supportability of Dr.
Bergsten’s opinions. Id. Finally, he argues that the ALJ improperly found Dr. YoungRodriguez’s opinion more persuasive than the opinion of treating physician Dr. Bergsten. Id. at
26.
Defendant responds that the ALJ provided a “reasoned and sufficient assessment of Dr.
DeBernardi’s opinion” in line with the requirements of the revised regulatory framework
beginning on March 27, 2017. Doc. 22 at 8-9. Defendant also argues that the ALJ was justified
in her decision to reject Dr. Bergsten’s opinion for lack of support in the rest of the record. Id. at
9-10. Finally, Defendants argue that the consistency between Dr. DeBernardi and Dr. Bergsten is
not enough; the ALJ cited substantial evidence in support of her decision and Plaintiff’s
argument is an impermissible request to re-weigh the evidence. Id. at 10.
B. Consistency of Dr. Bergsten and Dr. DeBernardi’s opinions
Plaintiff first argues that the ALJ failed to consider the fact that Dr. Bergsten’s and Dr.
DeBernardi’s opinions were consistent with each other. Doc. 17 at 25. Consistency is a
mandatory factor for an ALJ to consider in determining the persuasiveness of a medical opinion.
20 C.F.R. § 404.1520c(a). But I am not persuaded the ALJ failed to consider this factor. The ALJ

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described Dr. Bergsten’s opinion that Plaintiff is unable to work and described Dr. DeBernardi’s
opinion that Plaintiff’s conditions would impact his ability to work. AR 23. This demonstrates
that the ALJ considered the opinions were consistent, even if she did not expressly say so. The
ALJ is not required to discuss all the evidence, only to consider all the evidence. I find no error
here.
Second, Plaintiff challenges the ALJ’s finding that “[t]he opinion is not supported by
treatment notes” and “is not supported by objective evidence.” AR 23. Plaintiff argues that Dr.
Bergsten’s opinion and treatment notes are in fact consistent with one another. Doc. 17 at 25.
The only purported inconsistency with treatment notes that the ALJ identifies is “a June 2018
treatment note indicates that the claimant’s ‘overall quality of life has improved dramatically
with cannabis and antidepressants.’” AR 23.4 But, as Plaintiff correctly notes, records indicating
improvement do not contradict Dr. Bergsten’s opinion. Dr. Bergsten specifically notes the
improvement that Plaintiff made, yet he still concludes that Plaintiff’s pain and depression
prevent him from working full-time. AR 497. Dr. Bergsten agreed that Plaintiff saw “significant
improvement” through treatment, particularly antidepressants. AR 497. Thus, this is not
contradictory medical evidence sufficient to find a physician’s opinion unpersuasive. In this
respect, the ALJ committed error.
Finally, Plaintiff challenges the ALJ’s reliance on inconsistencies between Dr. Bergsten’s
August 2019 medical source statement and Dr. Young-Rodriguez’s opinion, which included
statements by the claimant that he could sit, stand, walk, and lift different amounts from the
amounts Dr. Bergsten indicated. AR 23. Unlike the previous purported inconsistency, these
4

The ALJ also identifies inconsistencies with objective evidence from other sources, but
Plaintiff’s argument specifically addresses consistency with treatment notes, so I do not consider
these other purported inconsistencies.
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contradictions do exist: each opinion lists different amounts of time that Plaintiff could sit, stand,
and walk, and different amounts of weight that Plaintiff could lift. Cf. AR 888-91; AR 862. This
was not error.
C. Supportability analysis for Dr. Bergsten’s opinions
Plaintiff argues that the ALJ focused solely on objective evidence when analyzing Dr.
Bergsten’s opinions, which is improper for fibromyalgia given the lack of objective diagnostic
criteria. Doc. 17 at 25. As Plaintiff notes, objective evidence often does not tell the full story
when it comes to fibromyalgia. See Moore v. Barnhart, 114 F. App’x 983, 991 (10th Cir. 2004)
(unpublished). But analysis of the objective physical limitations resulting from a person’s
fibromyalgia, as one part of the full picture, is appropriate. See Wilson v. Astrue, 602 F.3d 1136,
1143 (10th Cir. 2010) (citing Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 17 n.5 (1st
Cir. 2003), for the proposition that the physical limitations resulting from fibromyalgia may lend
themselves to objective analysis); Newbold v. Colvin, 718 F.3d 1257, 1267-68 (10th Cir. 2013)
(affirming ALJ’s evaluation of fibromyalgia where the claimant “has had no persistent neural
deficits, she has required no narcotic pain medication for her body aches, she has used only overthe-counter pain medication for her severe migraine headaches, she has experienced no
medication side effects, she has required no hospitalizations, she has undergone no physical
therapy, she uses no assistive devices to ambulate and she has undergone no mental health
treatment” and for fourteen months, the claimant “did not receive treatment from Dr. McMillan,
the physician primarily responsible for managing her fibromyalgia”); Tarpley v. Colvin, 601 F.
App’x 641, 643 (10th Cir. 2015) (unpublished) (affirming where the claimant had full range of
motion in her joints, had normal strength, walked and moved without much difficulty, had been
able to care for her personal needs, did household chores, went shopping, found relief with

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medication, and on her doctors’ recommendations, stayed active with friends and family);
Romero v. Colvin, 563 F. App’x 618, 621-22 (10th Cir. 2014) (unpublished) (affirming based on
the claimant’s daily activities and her statements that she experienced relief from medication and
exercise as prescribed by her doctor); Trujillo v. Commissioner, SSA, 818 F. App’x 835, 843-44
(10th Cir. 2020) (unpublished) (an ALJ may credit a diagnosis of fibromyalgia but must still
ensure there is sufficient objective evidence to support a finding that the impairment “so limits
the person’s functional abilities that it precludes him or her from performing any substantial
gainful activity”; ALJ may consider the claimant’s longitudinal record in assessing the existence,
severity, and disabling effects of fibromyalgia).
In this case, the ALJ found that Plaintiff had fibromyalgia and that this condition limited
at least some of his abilities. For example, the ALJ made a factual finding that “the claimant has
postural limitations due to fibromyalgia affecting his joints.” AR 22. She also recognized
Plaintiff’s reports of pain. AR 19. Plaintiff argues that an evaluation based only on objective
evidence is inappropriate, citing Moore v. Barnhart, 114 F. App’x 983, 991 (10th Cir. 2004)
(unpublished). Contrary to Plaintiff’s argument, Moore did not hold that an ALJ may not
evaluate fibromyalgia solely with reference to objective evidence. Moore held that an ALJ may
not require that fibromyalgia “be established by a formalistic clinical or laboratory test.” Moore,
114 F. App’x at 990. This case is not on point because, here, the ALJ accepted that Plaintiff has
fibromyalgia and partially credited his allegations of symptoms. The ALJ never demanded that
Plaintiff furnish laboratory tests to support his fibromyalgia symptoms.
Instead, the ALJ relied on evidence and factors similar to those approved by the Tenth
Circuit in the cases cited above. The ALJ is not required to walk through an analysis of every

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factor that goes into determining an opinion’s persuasiveness. Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007).
D. The ALJ properly relied on Plaintiff’s own statements to discount Dr. Bergsten’s
opinion.
The ALJ rejected Dr. Bergsten’s opinion in part because Dr. Bergsten opined on
limitations more restrictive than what Plaintiff himself admitted he could do. AR 23; see AR 862
(report by Dr. Young-Rodriguez stating that Plaintiff stated that he can stand at one time for 2
hours, can walk on level ground for 2 miles and can sit for 2 hours). Plaintiff argues that (1) the
ALJ did not consider the inconsistency of these statements in Dr. Young-Rodriguez’s opinion
with other evidence, and (2) that because Dr. Bergsten was a treating physician and Dr. YoungRodriguez was a non-examining, non-treating physician, Dr. Bergsten’s opinion should have
been given more persuasive weight than Dr. Young-Rodriguez. Doc. 17 at 26.
I do not consider the first of these arguments because Plaintiff does not identify what
other evidence the ALJ should have considered in the course of discussing the statements made
to Dr. Young-Rodriguez. Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (the claimant must
not only point to evidence that he claims the ALJ failed to discuss, but also say why it was
significantly probative; the court will not do so for him).
Plaintiff’s second argument rests on a misapprehension of the record. The ALJ did not
give Dr. Young-Rodriguez’s opinion any weight; he rejected it. AR 22. That is, the ALJ was
faced with an opinion that the Plaintiff has no physical limitations (Dr. Young-Rodriguez) and an
opinion that Plaintiff has disabling levels of physical limitations (Dr. Bergsten). The ALJ
discounted both of them in favor of other evidence in the record. AR 23. This was not error.
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“there is no requirement in the

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regulations for a direct correspondence between an RFC finding and a specific medical opinion
on the functional capacity in question”).
III.

Summary

I find that Plaintiff accurately identifies error in the ALJ’s failure to discuss a relevant
allegation of Plaintiff’s subjective symptom evidence, and in the ALJ’s statement that evidence
showing “improvement with treatment” was inconsistent with Dr. Bergsten’s opinion. The
Commissioner does not argue that these errors are harmless. I recommend the Court reverse and
remand for a new hearing.
CONCLUSION
I recommend that the Court GRANT Plaintiff’s Opposed Motion To Reverse And/Or
Remand, Doc. 17.

____________________________________
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day period
if that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

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