Estrada v. Social Security Administration
MEMORANDUM OPINION AND ORDER by Magistrate Judge Kevin R. Sweazea granting 24 Motion to Remand to Agency (am)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CIV No. 21-0653 KRS
KILOLO KIJAKAZI, Acting Commissioner
of the Social Security Administration,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Plaintiff Jonathan Estrada (“Plaintiff’s”)
Motion to Reverse and Remand for a Rehearing, with Supporting Memorandum (Doc. 24), dated
March 4, 2022, challenging the determination of the Commissioner of the Social Security
Administration (“SSA”) that he is not entitled to supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381-83f. The Commissioner responded to Plaintiff’s
Motion on May 24, 2022 (Doc. 34), and Plaintiff filed a reply brief on June 17, 2022 (Doc. 35).
With the consent of the parties to conduct dispositive proceedings in this matter, see 28 U.S.C.
§ 636(c); FED. R. CIV. P. 73(b), the Court has considered the parties’ filings and has thoroughly
reviewed the administrative record. Having done so, the Court concludes that the ALJ erred in
his decision and will therefore GRANT Plaintiff’s Motion and remand this case back to the SSA
for proceedings consistent with this opinion.
I. PROCEDURAL POSTURE
Plaintiff was granted supplemental security benefits as a child as of January 1, 2018. (See
Administrative Record (“AR”) at 13). At that time, his severe impairments were Attention
Deficit Hyperactivity Disorder (“ADHD”) and asthma. (See AR at 77). Pursuant to Section
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1614(a)(3)(H)(iii) of the Social Security Act, Plaintiff’s eligibility for disability benefits was
redetermined when he turned 18 years of age under the rules for determining disability in adults.
(See id. at 13). Plaintiff’s disability benefits were denied upon redetermination. (Id. at 71-84,
514). At Plaintiff’s request, ALJ Jeffrey Holappa held a hearing as to the redetermination of his
disability benefits. (Id. at 31-66). Plaintiff was represented by counsel and testified at the
February 5, 2021 hearing, as did a vocational expert. (Id.).
On February 25, 2021, ALJ Holappa issued his decision, finding that Plaintiff was not
disabled under the relevant sections of the Social Security Act. (Id. at 13-24). Plaintiff requested
that the Appeals Council review the ALJ’s decision (id. at 9), and on May 19, 2021, the Council
denied the request for review (id. at 1-3), which made the ALJ’s decision the final decision of the
Commissioner. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On July 16, 2021,
Plaintiff filed the complaint in this case seeking review of the Commissioner’s decision. (Doc.
II. LEGAL STANDARDS
A. Standard of Review
Judicial review of the Commissioner’s decision is limited to determining “whether
substantial evidence supports the factual findings and whether the ALJ applied the correct legal
standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (citing Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007)); see also 42 U.S.C. § 405(g). If substantial evidence supports
the ALJ’s findings and the correct legal standards were applied, the Commissioner’s decision
stands and the plaintiff is not entitled to relief. See, e.g., Langley v. Barnhart, 373 F.3d 1116,
1118 (10th Cir. 2004). Although a court must meticulously review the entire record, it “may
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neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].” See,
e.g., id. (quotation omitted).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation
omitted); Langley, 373 F.3d at 1118 (quotation omitted). Although this threshold is “not high,”
evidence is not substantial if it is “a mere scintilla,” Biestek, 139 S. Ct. at 1154 (quotation omitted);
“if it is overwhelmed by other evidence in the record[,]” Langley, 373 F.3d at 1118 (quotation
omitted); or if it “constitutes mere conclusion[,]” Grogan v. Barnhart, 399 F.3d 1257, 1261-62
(10th Cir. 2005) (quotation omitted). Thus, the Court must examine the record as a whole,
“including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Grogan, 399 F.3d at 1262 (citation omitted). While an ALJ
need not discuss every piece of evidence, “[t]he record must demonstrate that the ALJ considered
all of the evidence,” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted),
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.” Id. at 1010
(quotation omitted). “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.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (quotation and citation omitted).
B. Disability Framework
“Disability,” as defined by the Social Security Act, is the inability “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 twelve months.” 42 U.S.C. § 423(d)(1)(A). The SSA
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has devised a five-step sequential evaluation process to determine disability. See Barnhart v.
Thomas, 540 U.S. 20, 24 (2003); Wall v. Astrue, 561 F.3d 1048, 1051-52 (10th Cir. 2009); 20
C.F.R. § 404.1520. If a finding of disability or non-disability is directed at any point, the SSA
will not proceed through the remaining steps. Thomas, 540 U.S. at 24. At the first three steps, the
ALJ considers the claimant’s current work activity and the severity of her impairment or
combination of impairments. See id. at 24-25. If no finding is directed after the third step, the
Commissioner must determine the claimant’s residual functional capacity (“RFC”), or the most
that she is able to do despite her limitations. See 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1). At
step four, the claimant must prove that, based on her RFC, she is unable to perform the work she
has done in the past. See Thomas, 540 U.S. at 25. If the claimant meets “the burden of
establishing a prima facie case of disability[,] . . . the burden of proof shifts to the Commissioner
at step five to show that” the claimant retains sufficient RFC “to perform work in the national
economy, given [her] age, education and work experience.” Grogan, 399 F.3d at 1261 (citation
omitted); see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the
five-step sequential evaluation process in detail).
III. THE ALJ’S DETERMINATION
ALJ Holappa redetermined Plaintiff’s disability claim pursuant to the five-step
sequential evaluation process. (AR at 13-24). First, he found that Plaintiff attained the age of 18
on September 5, 2018, which necessitated a redetermination of his eligibility for disability
benefits under the rules for adults who file new applications. (Id. at 15). The ALJ then found at
step two that since March 1, 2019, Plaintiff suffered from the nonsevere impairments of
insomnia and a fractured finger as well as the following severe impairments: asthma, obesity,
ADHD, and bipolar disorder. (Id.). At step three, the ALJ concluded that Plaintiff did not have
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an impairment or combination of impairments that met the criteria of listed impairments under
Appendix 1 of the SSA’s regulations. (Id. at 16-18).
Moving to the fourth step, the ALJ reviewed the evidence of record, including medical
opinions and evidence from treating and consulting providers, prior administrative medical
findings, and Plaintiff’s own subjective symptom evidence. (See id. at 18-23). Having done so,
he concluded that for the relevant period, Plaintiff possessed an RFC to
perform medium work as defined in 20 [C.F.R. §] 416.967(c) except he can lift,
carry, push, and pull up to 50 pounds occasionally and 25 pounds frequently. He
can sit, stand, and walk for six hours in an eight-hour workday. He [is] limited to
frequent climbing of ramps & stairs, occasional climbing [of] ladders or scaffolds,
and frequent balancing, stooping, kneeling, crouching and crawling. [He] is further
limited to no more than occasional exposure to extreme cold, dust, odors, fumes,
pulmonary irritants, and no exposure to unprotected heights or moving mechanical
parts. Finally, [he] is limited to understanding, remembering and carrying out
simple, routine, and repetitive tasks; making simple work-related decisions, dealing
with changes in a routine work setting, maintaining concentration, persistence, and
pace for at least two hour intervals, and occasional interactions with others
including supervisors, co-workers and the general public.
(Id. at 18).
After determining that Plaintiff had “no past relevant work,” (id. at 23 (citing 20 C.F.R.
§ 416.965)), the ALJ proceeded to step five, where he determined that, since March 1, 2019,
there were jobs that existed in significant numbers in the national economy that Plaintiff could
perform. (Id. at 23-24). The ALJ therefore concluded that Plaintiff’s work was not precluded by
his RFC and that he had not become disabled again following the end of his disability on March
1, 2019. (Id. at 24).
Plaintiff contends that the ALJ improperly assessed his severe impairments (see Doc. 24
at 5-7); that he improperly evaluated the medical opinions of Plaintiff’s psychological
consultative examiner as well as the prior administrative findings of the state agency
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psychological consultants at both the initial and reconsideration levels (id. at 7-15); that he
improperly assessed Plaintiff’s subjective symptoms (id. at 15-18); that he erred in posing a
hypothetical question to the vocational expert and in failing to clarify her testimony under Social
Security Ruling (“SSR”) 00-4p (id. at 20); and, finally, that he failed to find the existence of
three jobs as required by the Program Operation Manual System (“POMS”) DI 25025.030(B)
(id.). The Court takes up the issue of the ALJ’s evaluation of medical opinions, as those opinions
bear directly upon the ALJ’s assessment of Plaintiff’s severe impairments. Ultimately the Court
disagrees that the ALJ erred in his treatment of the psychological consultative examiner’s
opinions but agrees that he erred in his treatment of the state agency psychological consultants’
prior administrative findings. Because a reevaluation of the state agency psychological
consultants’ findings may impact the other determinations at issue in this proceeding, the Court
will remand on this basis without addressing Plaintiff’s remaining claims of error. See Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
A. Evaluation of Medical Opinions and Prior Administrative Findings
The ALJ determined that the opinions of psychiatrist Dr. James Benvenuti and the
findings of Drs. Brad F. Williams and Richard Sorensen were “persuasive.” (AR at 21). Plaintiff
submits, however, that in so finding the ALJ failed to properly account for the limitations these
medical sources assessed. (Doc. 24 at 7-15). Because Plaintiff’s disability benefits were
redetermined after March 27, 2017, ALJ Holappa was required to evaluate the medical opinions
and prior administrative findings in this case under the revised regulations found in 20 C.F.R.
§ 416.920c. See Zhu v. Comm’r SSA, No. 20-3180, 2021 WL 2794533, at *4 & n.8 (10th Cir.
July 6, 2021). Under the revised regulations, no specific evidentiary weight or deference is given
to medical opinions or prior administrative findings. See 20 C.F.R. § 416.920c(a). Instead, they
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are evaluated on equal footing using the factors enumerated in the regulations. See 20 C.F.R.
However, the revised regulations impose “articulation requirements” on an ALJ. See 20
C.F.R. § 416.920c(b). First, “when a medical source provides multiple medical opinion(s),” the
ALJ need not articulate how he considered each individual medical opinion, but he must
“articulate how [he] considered the medical opinions . . . from that medical source together in a
single analysis.” 20 C.F.R. § 416.920c(b)(1). Second, an ALJ must consider five factors when
evaluating medical opinion evidence, see 20 C.F.R. § 416.920c(c)(1)-(5); however, he is
generally only required to articulate his consideration of two of those factors: supportability and
consistency. 20 C.F.R. § 416.920c(b)(2). Third and finally, if differing medical opinions are
equally well-supported and consistent with the record, the ALJ must then “articulate how [he]
considered the other most persuasive factors[,]” including the source’s relationship with their
client, any specialization, and other factors that tend to support or contradict the opinion or
finding. 20 C.F.R. §§ 416.920c(b)(3), 416.920c(c)(3)-(5).
Although the ALJ is generally “not required to discuss every piece of evidence,” see
Clifton, 79 F.3d at 1009-10, he has, at minimum, a duty to address the persuasive value of
medical opinions and prior administrative findings. See id. The new regulations do not alter the
standard of review, however. Thus, an ALJ’s persuasiveness finding “is not based on substantial
evidence if it is overwhelmed by other evidence in the record,” Langley, 373 F.3d at 1118
(quotation omitted), or if it “constitutes mere conclusion,” Misgrave v. Sullivan, 966 F.2d 1371,
1374 (10th Cir. 1992) (citation omitted). As before, an ALJ must “consider all relevant evidence
in the case record,” Silva v. Saul, No. CIV 19-913 WJ/KK, 2020 WL 4220862, at *4 (D.N.M.
July 23, 2020) (citing 20 C.F.R. §§ 404.1520b, 416.920b), and must provide the Court with a
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“sufficient basis to determine that appropriate legal principles have been followed[,]” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quotation omitted).
1. Opinions of Dr. Benvenuti
Psychiatrist Dr. James Benvenuti conducted a mental evaluation of Plaintiff at the request
of Disability Determination Services on February 15, 2019. (See AR at 451-54). Dr. Benvenuti
reported that, according to Plaintiff, his most significant problem was lapses of memory. (Id. at
451). Dr. Benvenuti noted a “long history” of high distractibility, impulsivity, very high energy,
and difficulty paying attention. (Id.). He indicated that Plaintiff “endorses the full panoply of
manic symptoms . . . on the mood disorder questionnaire, which [Plaintiff] believes has been a
minor problem.” (Id.). In his mental status findings, Dr. Benvenuti noted psychomotor
retardation, sarcastic attitude, blunted affect, and being “disrespectful of this situation with some
flavor of malingering.” (Id. at 452). Dr. Benvenuti observed that Plaintiff’s “insight seems poor
regarding his diagnosis, treatment and follow-up.” (Id. at 453). Yet, he described Plaintiff’s
“mental activity [as] coherent and linear” and found that he was oriented “times three.” (Id.).
With respect to memory, Dr. Benvenuti found that Plaintiff’s immediate memory was “intact,”
but he observed that Plaintiff scored “only mental age seven and a half years” on more rigid
testing of the Detroit Auditory Attention Span For Unrelated Words, which indicated a “severe
attention disorder.” (Id.). In the “Functional Assessment” portion of his report, Dr. Benvenuti
made the following relevant findings:
[Plaintiff] appears to have the ability to reason and understand. He does have some
adaption skills. Remote memory seems intact. Recent memory is sufficient.
Immediate memory shows a significant impairment . . . , which may require special
consideration in a work setting. Sustained concentration and persistence are
adequate based on brief concentration tasks of this evaluation. [Plaintiff] does not
describe difficulty on follow-through with tasks, but [his] parents state this has been
an impairment throughout his school career. Parents also describe significant
interpersonal challenges in his personal life as a result of AD/HD symptoms of
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impulsivity, for instance. [Plaintiff’s] ability to interact with co-workers and the
public is likely moderately impaired. Due to AD/HD and mood disorder
symptoms and tendency to isolate himself from others, his ability to maintain
regular attendance in the workplace is moderately impaired. His ability to
complete a normal work day or work week without interruption from AD/HD or
mood disorder symptoms is also likely moderately impaired. His ability to deal
with the usual stress encountered in the workplace is also considered moderately
impaired if it involves persistent activity, complex tasks, task pressure and
interacting with other individuals.
(Id. at 454 (emphasis added)). The ALJ, for his part, specified that he found Dr. Benvenuti’s
opinion “persuasive,” as it was “consistent with the diagnosis and history of ADHD” and
with Plaintiff’s “overall school performance, and with his testimony.” (Id. at 22).
Plaintiff maintains that the ALJ’s error was in “failing to find greater mental limitations
in the RFC and failing to account for all of Dr. Benvenuti’s assessed moderate limitations.”
(Doc. 24 at 8). In Plaintiff’s view, the ALJ adopted Dr. Benvenuti’s moderate limitation as to his
ability to interact with coworkers and the public but disregarded his “other at least moderate
limitations in the areas of concentration, persistence and maintaining pace and in the ability to
adapt and manage himself.” (Doc. 24 at 9 (citing AR at 18, 454)).
First, with respect to Plaintiff’s ability to concentrate, persist, and maintain pace, Plaintiff
submits that the ALJ erred when he suggested that Dr. Benvenuti “found no more than moderate
impairments.” (Id. at 10 (quoting AR at 21)). Plaintiff argues that this characterization of Dr.
Benvenuti’s opinion was inaccurate and, further, that the ALJ’s RFC effectively omitted any
limitation in this area of functioning. (Id.) The Commissioner, on the other hand, maintains that
the ALJ adequately accounted for Dr. Benvenuti’s limitations in this area of functioning,
reasoning that Dr. Benvenuti merely provided a “vague assessment of a ‘moderate’ impairment”
in concentration and that it was the “ALJ’s duty to translate this finding into a work-related
restriction.” (Doc. 34 at 9-11 (citing AR at 18, 20 C.F.R. § 4016.946(c)). The Commissioner
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contends that the ALJ reasonably fulfilled this duty by limiting Plaintiff to simple, routine, and
repetitive tasks, to maintaining concentration for only two-hour intervals, and to having only
occasional social interactions. (Id. at 11). The Commissioner cites Vigil v. Colvin, 805 F.3d 1199
(10th Cir. 2015) and Smith v. Colvin, 821 F.3d 1264 (10th Cir. 2016) for the proposition that the
Tenth Circuit has “endorsed the approach taken by the ALJ in this case” whereby a plaintiff is
limited to unskilled work to account for moderate mental limitations. (Doc. 34 at 10.)
But Plaintiff’s argument strikes the Court as more fundamental than the Commissioner
suggests. Plaintiff contends that Dr. Benvenuti found more-than-moderate limitations in his
ability to maintain concentration, persistence, and pace and, thus, that the ALJ’s determination –
that Dr. Benvenuti “found no more than moderate impairments” – was contrary to the record.
(Doc. 24 at 10). In support, Plaintiff submits that Dr. Benvenuti’s “assessment of ‘significant
impairment,’ while not couched in officially sanctioned language used by the Social Security
Administration, appears to indicate a level higher, or more disabling, than moderate limitations,
as it aligns with the language of what is considered a ‘marked’ limitation, which is defined as
supporting a conclusion that the individual cannot usefully perform or sustain the activity.” (Id.
(citing POMS DI 24510.063(B)(3))). Plaintiff emphasizes that Dr. Benvenuti scored him at a
mental age of seven-and-a-half-years old despite his true age of 18. (Id. (citing AR at 454)). He
also contends that a higher-than-moderate concentration limitation is consistent with CNP
Sheffield’s records, which suggest that his concentration was “not normal,” and the findings of
other medical sources, which indicate distractibility, lack of attention and control, trouble
completing assignments, lack of focus, and difficulty following simple instructions. (Id. (citing
AR at 458, 462-63, 468, 490)). But not only does Plaintiff take issue with the ALJ’s
characterization of Dr. Benvenuti’s opinions, he also asserts that the ALJ’s RFC effectively
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omitted any limitation in this area of functioning, as “maintain[ing] concentration, persistence,
and pace for at least two hour intervals,” to which the ALJ limited Plaintiff, is one of the “mental
abilities needed for any job.” (Id. at 10-11 (citing AR at 18, POMS 25020.010) (emphasis
The Court’s own examination of Dr. Benvenuti’s mental evaluation reveals that Dr.
Benvenuti did not directly describe Plaintiff’s limitation in his ability maintain concentration,
persistence, and pace as “moderately limited.” (See AR at 451-54). Dr. Benvenuti’s findings
were more nuanced. He opined that Plaintiff had an “adequate” ability to sustain concentration
and persistence as to the “brief concentration tasks of [his own] evaluation.” (Id. at 454). He also
made other findings that bear on Plaintiff’s ability to maintain concentration, persistence and
pace. For instance, he opined that Plaintiff’s “significant impairment” in immediate memory
“may require special considerations in a work setting.” (Id). And he opined that Plaintiff is
“moderately impaired” in his ability to deal with the “usual stress” of the workplace when it
“involves persistent activity, complex tasks, task pressure and interacting with other individuals.”
(Id.). In other words, Dr. Benvenuti acknowledged an impairment in the area of concentration,
persistence, and pace, for which some accommodations would be required, but he did not
explicitly characterize those limitations as moderate, marked, or greater than moderate. Simply,
it was the ALJ who indicated that Dr. Benvenuti found “no more than moderate impairments.”
(See id. at 21).
Still, the Court is satisfied that substantial evidence supports the ALJ’s conclusion in that
regard. Pursuant to the regulations, a moderate limitation means a claimant’s “functioning in [an]
area independently, appropriately, effectively, and on a sustained basis is fair,” while a marked
limitation indicates functioning on the same basis is “seriously limited.” 20 C.F.R., pt. 404,
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subpt. P. app.1, § 12.00(F)(2)(c), (d) (emphasis added). Notably, Dr. Benvenuti found Plaintiff’s
ability to sustain concentration and persistence “adequate,” at least when performing the tasks
required for purposes of his mental evaluation. (AR at 454). He also acknowledged Plaintiff’s
reports that he could read a book and remember what he reads, play video games and use the
computer for two hours, and perform activities of daily living in a timely manner. (Id. at 453).
Moreover, it is telling that Dr. Benvenuti found Plaintiff “moderately impaired” in dealing with
the “usual stress” of the workplace when work “involves persistent activity, complex tasks, task
pressure and interacting with other individuals.” (Id. at 454). The ALJ reasonably determined
that Dr. Benvenuti found “no more than moderate limitations” in this area of functioning.
Likewise, his own analysis of Plaintiff’s functioning at step three of his sequential evaluation
process led him to conclude that Plaintiff had moderate limitations in concentrating, persisting,
and maintaining pace. (See id. at 17).
Not only is the Court satisfied that the ALJ did not mischaracterize Dr. Benvenuti’s
findings in this area of functioning, but the Court is equally persuaded that the ALJ’s RFC
adequately accounted for a moderate limitation in maintaining concentration, persistence, and
pace. Although a limitation to unskilled work does not always account for a claimant’s moderate
mental limitations, see Vigil, 805 F.3d at 1203, unskilled work may account for moderate
limitations in maintaining concentration, persistence, and pace, see, e.g., Nelson v. Colvin, 655 F.
App’x 626, 629 (10th Cir. 2016); Padilla v. Berryhill, No. CIV 17-329 GJF, 2018 WL 3830930,
at *13 (D.N.M. Aug. 13, 2018). Here, Plaintiff has not pointed the Court to any authority to
suggest that the RFC here did not adequately account for a moderate limitation in maintaining
concentration, persistence, and pace. In the absences of such contrary authority, the Court is
satisfied that it did.
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Plaintiff makes the related assertion that the ALJ failed to incorporate Dr. Benvenuti’s
assessed moderate limitation in the ability to deal with the usual stress encountered in the
workplace. (Doc. 24 at 11). Plaintiff asserts that by effectively permitting him to engage in work
that would require him to “deal with changes in a routine work setting,” the ALJ failed to
account for his response to stress. (Id.). But, notably, the ALJ took pains to remove the
significant elements of “usual stress” in a workplace – i.e. limiting Plaintiff to understanding,
remembering, and carrying out simple, routine, and repetitive tasks, making simple work-related
decisions, maintaining concentration persistence, and pace for only two-hour intervals, and only
occasionally interacting with others. The Court finds that the ALJ accommodated Plaintiff’s
impairments, both in maintaining concentration, persistence, and pace and in adaption.
Significantly, it can be inferred from Dr. Benvenuti’s opinion that so long as Plaintiff was not
required to complete complex tasks, to withstand significant task pressure, to persist for more
than a few hours, or to frequently interact with others, his limitations were less than moderate.
Moreover, the ALJ has offered a “sufficient basis [for the Court] to determine that appropriate
legal principles have been followed” here. See Jensen, 436 F.3d at 1165. As such, the Court will
not remand with respect to the ALJ’s treatment of Dr. Benvenuti’s opinion.
ii. Prior Administrative Findings of Drs. Williams and Sorensen
Next, Plaintiff argues that the ALJ failed to incorporate into the RFC each of the
moderate limitations found by the state agency psychological consultants, Drs. Williams and
Sorensen. He complains that the RFC does not account for the consultants’ assessed moderate
limitations in the broad areas of social interaction and maintaining concentration, persistence,
and pace. (Doc. 24 at 13-15.)
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At the initial level of review, Dr. Williams completed a Psychiatric Review Technique
(“PRT”) in which he determined, in his consideration of the “paragraph B” criteria, that Plaintiff
was moderately limited in his ability to interact with others and to concentrate, persist, or
maintain pace. (AR at 78). Dr. Williams indicated that Plaintiff “felt able to maintain superficial
social relationships with others[,] . . . has the ability to understand and complete simple work
tasks[, and] felt he would be able to relate with others around him in an appropriate manner and
persist and focus on tasks on an ongoing basis if so motivated.” (Id.). He summarized Plaintiff’s
own impressions as to his abilities: “It is felt he retains potential for at least basic work.” (Id.).
Putting aside Plaintiff’s impressions of his own abilities, Dr. Williams determined that Plaintiff
was “able to perform work where interpersonal contact is incidental to work performed, e.g.,
assembly work, complexity of tasks is learned and performed by rote, few variables, little
judgment[, and] supervision required is simple, direct and concrete.” (Id.). Dr. Williams also
completed a Mental Residual Functional Capacity Assessment (“MRFCA”) in which he found
Plaintiff moderately limited in the following abilities: the “ability to complete a normal workday
and workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods”; the “ability to
accept instruction and respond appropriately to criticism from supervisors”; and the “ability to
set realistic goals or make plans independent of others.” (Id. at 81).
At reconsideration, Dr. Sorensen recounted that on initial review Plaintiff was “found
capable of unskilled work with moderate limitations in social and CPP.” (Id. at 514). He
summarized Plaintiff’s records from early 2019, noting that he had just graduated high school
and was planning to begin college; his cognition was intact; his mood was good; and his
symptoms of ADHD were well-managed on medication. (Id.). Dr. Sorensen also noted that
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Plaintiff’s mood and affect had been normal on March 28, 2019, and January 18, 2019, and that
he had appeared “very slightly anxious” on January 3, 2019, before his medications were
adjusted. (Id.) Ultimately, Dr. Sorensen opined that Plaintiff’s “condition appears unchanged.”
(Id.) He explicitly “affirmed” Dr. Williams’s finding that Plaintiff was “capable of unskilled
The ALJ, in turn, made the following finding: the “opinions of Brad F. Williams, PhD
and Richard Sorensen, PhD [are] persuasive, supported by the objective medical evidence, and
consistent with the evidence from all medical and non-medical sources.” (Id. at 21 (internal
citations omitted)). The ALJ acknowledged that the consultants found moderate limitations in the
“paragraph B” criteria and “the ability to [perform] unskilled work with reduced social
interactions.” (Id.). He described these findings as “generally consistent with the in-person
exams and findings by Dr. Benvenuti and Ms. Sheffield.” (Id.). Despite characterizing the
findings as persuasive, supported, and consistent, the ALJ did not parrot Dr. Williams’s language
from the PRT. (See id.). That is, instead of limiting Plaintiff to work “where interpersonal
contact is incidental to work performed,” as Dr. Williams had specified, the ALJ limited
Plaintiff to “occasional interactions with others including supervisors, co-workers, and the
general public.” (See id. at 18 (emphasis added)). Plaintiff submits that the ALJ’s limitation
effectively addresses the frequency but not the quality of his interactions. (Doc. 24 at 13).
Moreover, Plaintiff contends that the ALJ’s RFC fails to account for the consultants’ opinion that
any supervision must be “simple, direct and concrete.” (Id. at 14). The Commissioner concedes
that the ALJ’s RFC is not “identical” to the limitations opined by the psychological consultants
but nevertheless maintains that the ALJ fulfilled his duty to translate the consultants’ limitations
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into vocationally-relevant terms. (Doc. 34 at 13 (citing 20 C.F.R. § 416.946 (c); Howard v.
Barnhart, 379 F.3d 945, 949 (10th Cir. 2004)).
The Commissioner’s position finds support in this Court’s prior holding in Duran v.
Berryhill, No. 1:18-CV-349-KRS, 2019 WL 1568139 (D.N.M. Apr. 11, 2019). There, the state
agency consultants articulated identical social limitations (i.e. “interpersonal contact is incidental
to work performed, e.g. assembly work, complexity of tasks is learned and performed by rote,
few variables, little judgment: supervision required is simple, direct and concrete”). Id at *4. This
Court described the ALJ’s RFC,1 which limited the plaintiff to unskilled work with occasional
interactions with supervisors, co-workers and the public, as “on par” with the consultants’
findings. Id. The Court went on to explain that the ALJ there implicitly accepted the consultants’
findings by adopting conclusions that were “borne out of [those] findings.” Id. In so holding, this
Court addressed an argument similar to the one Plaintiff advances here concerning the ALJ’s use
of the term “occasional” rather than the consultants’ word “incidental.” Id. The Court explained
that any discrepancy between the two terms was merely a matter of semantics, as both words
convey the concept of “infrequency.” Id. (citing Incidental Definition, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/incidental). Ultimately, in Duran this Court
determined that the ALJ’s limitation to occasional interactions sufficiently conveyed the
consultants’ limitations of interactions “incidental” to the work performed. Id. The same is true
here. Moreover, given the ALJ’s discussion of the record and his incorporation of other
components into the RFC, which limited Plaintiff to simple, routine, and repetitive tasks and
The ALJ in Duran determined that the plaintiff was “able to understand, remember and carryout simple,
repetitive instructions and to make commensurate work-related decisions, in a workplace with few
changes[;] . . . have occasional interaction with supervisors, co-workers and the public[; and] . . . maintain
concentration, persistence and pace for 2 hours at a time during the 8-hour workday with normal breaks.”
2019 WL 1568139 at *1.
Case 1:21-cv-00653-KRS Document 38 Filed 09/16/22 Page 17 of 19
simple work-related decisions, the Court is satisfied that the ALJ adequately accounted for all
aspects of Dr. Williams’s assessed social limitations, including those requiring “simple, direct
and concrete” supervision.
But Plaintiff contends that the treatment of the psychological consultants’ findings was
erroneous in another respect: he submits that the ALJ failed to incorporate into the RFC a
limitation to account for the assessed moderate limitations regarding his ability to complete a
normal workday and workweek without interruptions from psychologically based symptoms and
to perform at a consistent paced without an unreasonable number and length of rest periods.
(Doc. 24 at 14 (citing AR at 80-82)). These mental abilities are vocationally significant, as they
are abilities “critical for performing unskilled work.” See POMS DI 25020.010(3)(i). SSA
policies are clear that if a claimant is to perform unskilled work, the requirement that he be able
to complete a normal workday without interruptions from his psychologically based symptoms
and perform at a consistent pace on a normal break schedule is “usually strict.” See id. In
contrast to a moderate limitation in a claimant’s ability to maintain concentration, a restriction to
simple, routine tasks does not sufficiently account for such limitations. Carrillo v. Saul, No.
1:19-CV-00292-KRS, 2020 WL 6136160, at *11 (D.N.M. Oct. 19, 2020) (holding that a
moderate limitation in the ability to complete a normal workday without interruptions from
psychologically based symptoms on a normal break schedule is not consistent with an RFC for
unskilled work); Vamvakerides v. Colvin, No. CV 14-00897 SCY, 2016 WL 10538097, at *7
(D.N.M. Apr. 7, 2016) (citing Bowers v. Astrue, 271 F. App’x 731, 733-34 (10th Cir. 2008))
(same). Indeed, judges in this District have suggested that moderate limitations in these areas of
functioning “would likely interfere with work in almost any setting.” See, e.g., Bosse v. Saul, No.
2:18-CV-00475-LF, 2019 WL 3986046, at *8-9 (D.N.M. Aug. 23, 2019) (citing Chapo v. Astrue,
Case 1:21-cv-00653-KRS Document 38 Filed 09/16/22 Page 18 of 19
682 F.3d 1285, 1290 (10th Cir. 2012)). This conclusion comports with the testimony of the
vocational expert in this case. When the ALJ asked whether there were any jobs available to a
hypothetical individual who was “going to be off task more than 15 percent of the workday for
any reason,” the vocational expert testified that there were no available jobs. (AR at 62).
Certainly, “there is no requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional capacity in question,” as “[t]he
ALJ, not a physician, is charged with determining claimant’s RFC from the medical record.”
Chapo, 682 F.3d at 1288 (quoting Howard, 379 F.3d at 949). Even so, “[a]n ALJ is not entitled
to pick and choose through an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisabilitity.” Id. at 1292 (quoting Haga v. Astrue, 482 F.3d 1205,
1208 (10th Cir. 2007)). This prohibition applies equally to non-examining consultants’ findings
as it does to medical opinions. See Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007).
Further, an ALJ’s failure to discuss significantly probative evidence that he rejects amounts to
legal error. See id.
Here, despite describing the state agency consultants’ findings as “persuasive,” the ALJ
did not directly address Dr. Williams’s assessed moderate limitation in Plaintiff’s ability to
complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods . (See AR at 13-24). Although the ALJ did adopt an RFC limiting Plaintiff to unskilled
work, “the Tenth Circuit has not held that moderate limitations in these abilities may be
collapsed into an RFC of unskilled work.” Carrillo, 2020 WL 6136160, at *11. As such, the ALJ
should have accounted for the consultants’ moderate limitations in these areas of functioning,
either by rejecting them and explaining that rejection or by adopting them in the RFC. See
Case 1:21-cv-00653-KRS Document 38 Filed 09/16/22 Page 19 of 19
Milner v. Berryhill, No. 16-1050 GJF, 2018 WL 461095, at *16 (D.N.M. Jan. 18, 2018) (“It is
the lack of adequate explanation here, in addition to the failure to account for the limitations set
forth by [the non-examining consultants], whose opinions the ALJ otherwise forthrightly
accepted, that requires remand.”). He did neither. The Court remands so that the ALJ can remedy
The ALJ erred in his review of the redetermination of Plaintiff’s eligibility application for
supplemental security income by failing to adequately evaluate medical opinion evidence in
accordance with controlling legal standards. Accordingly, Plaintiff’s Motion to Reverse and
Remand for a Rehearing (Doc. 24) is GRANTED, and the Court remands this case back to the
SSA for proceedings consistent with this opinion.
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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