Hernandez v. Social Security Administration

Filing 32

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge William P. Lynch: Objections to PFRD due by 2/6/2017. 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).) (ph)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

MARIA C. HERNANDEZ,
Plaintiff,
v.

14cv905 JCH/WPL

CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Maria Hernandez applied for disability insurance benefits and supplemental security
income on April 19, 2010, alleging disability beginning on January 14, 2010, from a right elbow
fracture and depression. (Administrative Record “AR” 194-201, 223, 256.) After her application
was denied at all administrative levels, she brought this proceeding for judicial review. The case
is before me now on her Motion to Reverse or Remand and supporting brief, a response filed by
the Commissioner of the Social Security Administration (“SSA”), and Hernandez’s reply. (Docs.
17, 17-1, 27, 30.) For the reasons explained below, I recommend that the Court deny
Hernandez’s motion and affirm the decision of the Commissioner.
STANDARD OF REVIEW
In reviewing the Administrative Law Judge’s (“ALJ”) decision, the Court must determine
whether it is supported by substantial evidence in the record and whether the correct legal
standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted).

A decision is not based on substantial evidence if other evidence in the record overwhelms it or
if there is a mere scintilla of evidence supporting it. Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004). Substantial evidence does not, however, require a preponderance of the
evidence. U.S. Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d
1122, 1133 (10th Cir. 2003). The Court must meticulously examine the record but may neither
reweigh the evidence nor substitute its discretion for that of the Commissioner. Hamlin, 365 F.3d
at 1214. The Court may reverse and remand if the ALJ failed “to apply the correct legal
standards, or to show us that she has done so . . . .” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th
Cir. 1996).
SEQUENTIAL EVALUATION PROCESS
The SSA has devised a five-step sequential evaluation process to determine disability.
See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
(2016). If a finding of disability or nondisability is directed at any point, the ALJ 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, the medical severity of the claimant’s
impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4) (2016) & Pt. 404, Subpt. P, App’x 1. If a claimant’s impairments
are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of
three phases of step four and determines the claimant’s residual functional capacity (“RFC”).
See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e) (2016). The ALJ then
determines the physical and mental demands of the claimant’s past relevant work in phase two of
the fourth step and, in the third phase, compares the claimant’s RFC with the functional
requirements of her past relevant work to see if the claimant is still capable of performing her

2

past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is
not prevented from performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f),
416.920(f). The claimant bears the burden of proof on the question of disability for the first four
steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert,
482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987). If the
claimant cannot return to her past work, then the Commissioner bears the burden, at the fifth
step, of showing that the claimant is capable of performing other jobs existing in significant
numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in
detail).
FACTUAL BACKGROUND
Hernandez is forty-nine years old. (AR 218.) She has an eleventh grade education and
previously worked as a prep cook, bookkeeper, in retail sales, and as a disc jockey. (AR 43, 62,
224, 225.)
I do not address everything in the record but rather target my factual discussion to those
facts necessary to provide a recommendation about this case.
On January 14, 2010, Hernandez fell and broke her right elbow after tripping on a rock in
her front yard. (AR 53, 443.) That evening, she went to the emergency room at the Lea Regional
Medical Center for treatment and was diagnosed with “Acute Fracture with Dislocation of: Right
Elbow” and bruising. (AR 444.) The next month, on February 15, 2010, John Harmston, M.D.,
performed surgery on her right elbow and implanted a radial head prosthesis. (AR 440.)
The implant later loosened, and Hernandez experienced significant pain. (AR 466, 519.)

3

Dr. Harmston performed a second surgery to reposition the prosthesis on August 30,
2010. (AR 537.) A few days after the surgery, on September 1, 2010, Hernandez returned to the
emergency room at Lea Regional Medical Center for shortness of breath. (AR 520.) She was
diagnosed with acute viral upper respiratory infection and acute anxiety. (AR 523.)
In the following months, Hernandez had four surgical follow-up appointments with Dr.
Harmston. (AR 601-605.) At the first appointment, on September 9, 2010, Hernandez stated that
she went to the emergency room on September 1 because “the nausea [from Lortab, her pain
medication,] also caused her to have anxiety,” that she “still felt very nervous,” and that “[s]ince
her surgery, she has not been able to leave her home.” (AR 601.) At the second appointment, on
September 22, 2010, Dr. Harmston noted that “[t]he patient continues to be very anxious in the
office today,” and reported that Hernandez said her anxiety was due to “worrying [about whether
her arm] is going to work correctly [and] if it is going to end up the way it was after the 1st
surgery.” (AR 602.) Dr. Harmston recommended that Hernandez see Amanda McGraw, NP,
“who [Hernandez] had seen in the past for primary care reasons,” to treat her post-surgery
“depression/anxiety.” (AR 602.) At the third appointment, on October 20, 2010, Dr. Harmston
noted that Hernandez “has become more active with her arm, [is] feeling less anxious, and has
started exercising on her own.” (AR 604.) At the fourth appointment, however, on November 17,
2010, Hernandez’s anxiety returned. (AR 605.) Dr. Harmston noted that Hernandez said she had
continued anxiety about potential problems with her elbow, despite “her x-rays look[ing]
normal.” (Id.)
Hernandez’s referral appointment with McGraw for depression and anxiety occurred on
October 1, 2010. (AR 653-656.) McGraw diagnosed, among other things, “ANXIETY STATE,
UNSPECIFIED.” (AR 656.) Hernandez had a second appointment with McGraw on December

4

1, 2010 (AR 651-653), where McGraw noted, among other things, “ONGOING ANXIETY.”
(AR 652.)
On December 13, 2010, Hernandez saw consultative psychologist Connie Jo Ponce,
Psy.D., for an evaluation of her depression and anxiety. (AR 608-611.) Dr. Ponce diagnosed
Hernandez with “Major Depression Disorder, Recurrent[,] Moderate” and assigned a Global
Assessment of Functioning (“GAF”) score of 50.1 (AR 611.)
An unsigned, undated Psychiatric Review Technique (“PRT”) and Mental Residual
Functional Capacity Assessment (“MRFC”) appear in the record. (AR 614-631.) Though the
signature blocks are blank, both forms contain the letters “ACJ” below the findings (see AR 626,
630), which may be the initials of the medical source that completed them. The
“CONSULTANT’S NOTES” section of the PRT mentions Hernandez’s assessment by Dr.
Ponce. (See AR 626 (“Claimant attended an MSCE [mental status consultative exam] on
12/13/10 . . . .”).) The MRFC found that Hernandez “can understand, remember and carry out
detailed but not complex instructions, make decisions, attend and concentrate for two hours at a
time, interact adequately with co-workers and supervisors, and respond appropriately to changes
in a work setting.” (AR 630.)
On January 15, 2011, Eric Weiner, Ph.D., completed a Case Analysis and concluded that
the “current PRTF/RFC in file is affirmed as written.” (AR 632.) Dr. Weiner, therefore,
considered the conclusions of both “ACJ” and Dr. Ponce.

The GAF is “a hypothetical continuum of mental health-illness” assessed through consideration
of psychological, social, and occupational functioning. Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders: DSM-IV-TR 34 (4th ed., text rev. 2005). A score between forty-one and
fifty is assessed when the patient is believed to have “[s]erious symptoms . . . OR any serious impairment
in social, occupational, or school functioning.” Id. Although the fifth edition of the DSM dropped the
GAF rating in 2013 in favor of an alternative assessment schedule, Dr. Ponce used this scoring method.
1

5

ALJ and Appeals Council’s Decision
The ALJ issued her decision on September 10, 2012. (AR 45.) At step one, she
determined that Hernandez had not engaged in substantial gainful activity since January 14,
2010. (AR 39.) At step two, she found that Hernandez had the severe impairments of “[s]tatus
post right elbow radial head arthroplasty with elbow prosthesis and depression.” (Id.) At step
three, the ALJ concluded that Hernandez did not have an impairment or combination of
impairments that met or medically equaled anything in the Listing of Impairments. (AR 40.)
The ALJ noted that Hernandez had mild restrictions in activities of daily living, moderate
difficulties in social functioning, moderate difficulties with concentration, persistence or pace,
and “no episodes of decompensation, which have been of extended duration.” (Id.)
At phase one of step four, the ALJ determined that Hernandez had the RFC “to perform
light work” with the following limitations:
“she can never climb ladders, ropes or scaffolds and can perform only occasional
fully extended or overhead reaching with her right upper extremity[;] can perform
frequent as opposed to constant handling of objects[;] should avoid moderate
exposure to vibration, moving machinery and unprotected heights[; and] due to
her symptoms of depression . . . is limited to simple, routine, repetitive tasks and
only occasional social interactions with the public.
(AR 41.) In making this determination, the ALJ found Hernandez “not credible” to the extent her
subjective complaints differ from the RFC, noted that “there are no medical records in the file to
document ongoing psychiatric treatment or counseling for her symptoms [of anxiety and
depression],” discussed but did not explicitly weigh the medical opinion of Connie Jo Ponce,
Psy.D., and gave “[s]ignificant weight . . . to the opinions of the State Agency medical
consultants who completed mental and physical residual functional capacity assessments and
also found the claimant capable of at least a limited range of light work.” (AR 42-43.)

6

At phases two and three of step four, the ALJ determined that Hernandez “has past
relevant work in retail sales . . . [and] bookkeeping,” but concluded, “[b]ased on the testimony”
of a vocational expert, that “the claimant is no longer capable of performing any of her past
relevant work.” (AR 43.)
Proceeding to step five, the ALJ heard testimony from the vocational expert and found
that Hernandez could perform other jobs existing in significant numbers in the national economy
and was not disabled. (AR 44-45.) The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. (AR 1.)
DISCUSSION
Hernandez argues that the ALJ “both failed to state the weight she accorded Dr. Ponce’s
opinions” and “implicitly rejected Dr. Ponce’s opinions about Ms. Hernandez’s limitations.”
(Doc. 17-1 at 20.) The Commissioner concedes that “the ALJ did not explicitly assign weight to
Dr. Ponce’s opinion” but argues that “the error is harmless because the ALJ fully assessed Dr.
Ponce’s opinion and there is no conflict between the residual functional capacity and Dr. Ponce’s
opinion.” (Doc. 27 at 7.)
“It is the ALJ’s duty to give consideration to all the medical opinions in the record” and
“discuss the weight [s]he assigns to such opinions.” Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(c),(e), 416.927(c),(e)). “[I]n addition to
discussing the evidence supporting h[er] decision, the ALJ also must discuss the uncontroverted
evidence [s]he chooses not to rely upon, as well as significantly probative evidence [s]he
rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996).
Failure to meet the two requirements mentioned in Keyes-Zachary—considering and
explicitly weighing each medical opinion—constitutes error, but in certain circumstances, the

7

error is harmless. See generally Keyes-Zachary, 695 F.3d 1156. In Keyes-Zachary, the claimant
argued that the ALJ erred by failing to consider the medical opinions of two doctors and failing
to explicitly weigh five medical opinions. Id. at 1161-1166. The Tenth Circuit found all errors
harmless, concluding that the two omitted medical opinions did not undermine the ALJ’s RFC,
and the lack of explicit weight for the five medical opinions caused no prejudice because
assigning greater weight to the opinions would not have changed the result. Id.
I analyze Hernandez’s second claim of error first. She argues that Dr. Ponce’s report
contains eight “specific opinions” about Hernandez’s functioning, but the ALJ only considered
two. (See Doc. 17-1 at 18-19.) Hernandez argues that the eight opinions discussing her
limitations are:
(1) [s]he would have no specific problems understanding instructions but ‘would
appear to have problems persisting at tasks of basic work due to psychological
issues’; (2) she has a limited ability to adapt to changes; (3) she has problems
managing stress; (4) she has problems managing anger; (5) she has problems with
depressed mood, initiating tasks, and poor motivation; (6) she isolates herself; (7)
she has hypersomnia (excessive daytime sleepiness); and (8) she has experienced
‘a significant change in functioning as she is no longer active and often stays in
her pajamas all day.’ (Tr. at 610.)
Id.
Review of Dr. Ponce’s report, however, reveals that four of these alleged opinions do not
qualify as medical opinions, and two of these alleged opinions are contradicted by other opinions
in Dr. Ponce’s report.
Numbers (5), (6), (7), and (8) do not qualify as medical opinions because they are
summaries of Hernandez’s subjective complaints. (See AR 610.) Two circumstances in Dr.
Ponce’s report support this conclusion. First, these numbers appear in a section titled:
“SUMMARY/RECOMMENDATIONS.” (Id.) Second, Dr. Ponce prefaced numbers (5), (6), and
(7) with phrases to indicate that Hernandez supplied the information. (See id. (“She reported . . . .
8

She also reported . . . . She also described . . . .”).) Number (8) does not contain a prefatory
clause, but one can conclude that Hernandez provided the information, because the record does
not indicate that a medical source observed Hernandez’s activity level or household clothing
choices.
Two other circumstances also suggest that numbers (5), (6), (7), and (8) are not medical
opinions that require evaluation. First, the Tenth Circuit has noted that an ALJ need not consider
a claimant’s subjective complaints when assigning weight to a medical source’s opinion.
Keyes-Zachary, 695 F.3d at 1164 (“The ALJ was not required to assign a weight to [a medical
provider’s] narrative of statements relayed to him by [the claimant].”). Second, the ALJ found
Hernandez’s statements “not credible to the extent they are inconsistent with the [RFC]” (AR
42), and Hernandez did not challenge the finding (see Doc. 17-1). This means that the ALJ could
properly disregard the four subjective complaints because they were offered by a less than
credible claimant.
Numbers (3) and (4) do not merit significant consideration because they are undermined
by other, contradictory opinions in Dr. Ponce’s report. Specifically, Dr. Ponce noted that “Ms.
Hernandez does not present with any significant social limitations” and “does not exhibit any
difficulties cooperating with others.” (AR 610.) Taken together, Dr. Ponce appears to conclude
that Hernandez has problems managing stress and anger but would be a friendly and cooperative
employee. Given this contradiction, numbers (3) and (4) do not qualify as “uncontroverted
evidence” or “significantly probative evidence” that Clifton mandates an ALJ discuss to avoid
error. See 79 F.3d at 1010.
The question then becomes whether the ALJ’s failure to discuss opinions (1) and (2)
undermines the RFC. Because they do not, there is no error.

9

Opinions (1) and (2) do not undermine the RFC because they are vague and do not
translate into discrete workplace limitations. The Tenth Circuit addressed a similar circumstance
in Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995). There, the ALJ wrote that the treating
physician’s opinion was “generic and did not accurately assess plaintiff’s true functional
capabilities.” Id. at 1214. The Tenth Circuit agreed and found “no error” because the treating
physician’s conclusion that the claimant had “‘[s]evere limitations’ [did] not indicate exactly
what [the claimant] c[ould] do in relation to the physical exertional requirements of sedentary,
light, moderate, or heavy work.” Id. at 1214.
The facts in Bean differ slightly—the claimant there alleged physical limitations rather
than mental limitations, like Hernandez—but the same reasoning applies. Here, Dr. Ponce used
the word “problems” to describe the challenges that Hernandez may encounter in a work
environment. (AR 610.) “Problems” is more vague and less restrictive than the phrase “severe
limitations” at issue in Bean. And, like in Bean, a functional capacity evaluation was the best
place to distill discrete workplace limitations. Here, the unknown agency consultant—“ACJ”—
completed a MRFC and found Hernandez capable of light work. (AR 628-630.) Dr. Weiner
affirmed the assessment (AR 632), and the ALJ afforded it “[s]ignificant weight” (AR 43)—a
finding that Hernandez does not challenge (see Doc. 17-1). In sum, the ALJ relied on an
unchallenged MRFC to craft her RFC, and Dr. Ponce’s conclusions about Hernandez’s
workplace challenges do not undermine the RFC because they are even more imprecise than in
Bean.
Hernandez makes much of the ALJ’s failure to discuss the GAF score of 50 that Dr.
Ponce assigned. (See Doc. 17-1 at 20-21.) Her most compelling case citation, however—Lee v.
Barnhart—addressed a different situation and is inapplicable. See 117 F. App’x 674, 678 (10th

10

Cir. 2004) (unpublished) (“In a case like this one, decided at step two, the GAF score [of 48]
should not have been ignored.”).
The Commissioner, on the other hand, cites three cases that are more pertinent. (See Doc.
27 at 11-12.) In one case, for instance—Eden v. Barnhart—the Tenth Circuit noted that “[n]o
one who rated [the claimant’s] GAF [of 50] indicated that [the claimant] could not work.” 109 F.
App’x 311, 314 (10th Cir. 2004) (unpublished). The ALJ noted the same circumstance here.
(See AR 43 (“I note that no treating or examining physician has offered the opinion that
[Hernandez] is disabled.”).) In Eden, the Tenth Circuit went on to hold that “[b]ecause a score of
50 may not relate to [the claimant’s] ability to work, the score, standing alone, without further
explanation, does not establish an impairment severely interfering with an ability to perform
basic work activities.” 109 F. App’x at 314. The same reasoning applies here because no medical
source connected Hernandez’s GAF score of 50 to an inability to work.
As for Hernandez’s first claim of error—that the ALJ failed to explicitly weigh Dr.
Ponce’s opinion—the ALJ erred, but the error is harmless because assigning explicit weight
would not have changed the result. See Keyes-Zachary, 695 F.3d at 1161-1166.
CONCLUSION
The ALJ erred by failing to consider two of Dr. Ponce’s opinions, but the opinions do not
undermine the ALJ’s RFC, so the error is harmless. The ALJ also erred by failing to assign
explicit weight to Dr. Ponce’s opinion, but the error is likewise harmless, because it would not
have changed the result.
I recommend that the Court deny Hernandez’s Motion to Reverse or Remand and affirm
the decision of the Commissioner.

11

THE PARTIES ARE 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.

___________________________________
WILLIAM P. LYNCH
UNITED STATES MAGISTRATE JUDGE

12