Rees v. Social Security Administration
REPORT AND RECOMMENDATIONS by Magistrate Judge Gregory B. Wormuth re 19 MOTION to Remand to Agency. Objections to R&R due by 1/26/2017. 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).) (twr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SANDRA LOUISA REES,
CIV No. 15‐519 JCH/GBW
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the Court on Plaintiff’s Motion to Remand the Social
Security Agency (SSA) decision to deny Plaintiff disability insurance benefits and
supplemental security income. Doc. 19. For the reasons discussed below, I recommend
finding that the ALJ erred by failing to explain the weight assigned to the opinion of the
state medical consultant and how the consultant’s findings were taken into account in
finding that Plaintiff is not disabled. Therefore, I recommend that the Court grant
Plaintiff’s motion and remand this action to the Commissioner.
Plaintiff filed an initial application for disability insurance benefits (DIB) on
January 21, 2011, and an initial application for supplemental security income (SSI) on
April 13, 2011. Administrative Record (“AR”) at 73‐74. Plaintiff alleged that she had a
disability resulting from bipolar disorder, depression, post‐traumatic stress disorder,
lower and upper back injuries, a knee injury, joint pain, headaches, and irritable bowel
syndrome. AR at 207. Plaintiff’s claims were denied initially on August 26, 2011, and
also denied upon reconsideration on May 30, 2012. AR at 99‐102, 110‐116. An
Administrative Law Judge (ALJ) held a hearing on July 2, 2013. AR at 34‐71.
The ALJ issued an unfavorable decision on February 14, 2014, concluding that
Plaintiff could perform jobs existing in significant numbers in the national economy and
therefore was not disabled. AR at 10‐26. Plaintiff again appealed the denial of her
application to the Appeals Council, which declined review on April 17, 2015. AR at 1‐3.
Plaintiff timely filed suit in this Court on June 18, 2015, seeking review of the ALJ’s
decision. Doc. 1.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a court may review a final decision of the
Commissioner only to determine whether it (1) is supported by “substantial evidence”
and (2) comports with the proper legal standards. Casias v. Sec’y of Health & Human
Servs., 933 F.2d 799, 800‐01 (10th Cir. 1991). “In reviewing the ALJ’s decision, we
neither reweigh the evidence nor substitute our judgment for that of the agency.”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal citation omitted).
Substantial evidence is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Casias, 933 F.3d at 800. “The record must demonstrate that the ALJ considered all of the
evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v.
Chater, 79 F.3d 1007, 1009‐10 (10th Cir. 1996). “[I]n addition to discussing the evidence
supporting his decision, the ALJ must also discuss the uncontroverted evidence he
chooses not to rely upon, as well as significantly probative evidence he rejects.” Id. at
1010. “The possibility of drawing two inconsistent conclusions from the evidence does
not prevent [the] findings from being supported by substantial evidence.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).
Plaintiff asserts that the ALJ erred by failing to properly evaluate: (1) the opinion
evidence of Dr. Mark Beale, the state agency examining physician; (2) the opinion
evidence of Dr. Alvin Smith; (3) the opinion evidence of treating counselor Penni Sears;
and (4) Plaintiff’s credibility. See generally doc. 19. Defendant argues that the ALJ: (1)
reasonably evaluated the opinion evidence of Dr. Beale, Dr. Alvin, and Ms. Sears; and
(2) reasonably evaluated Plaintiff’s credibility. See doc. 23 at 7‐16. Ultimately, I
recommend granting Plaintiff’s Motion to Remand due to the ALJ’s failure to properly
weigh the opinion evidence of Dr. Beale, and I do not reach the other issues.
A. Legal Standard
For purposes of Social Security benefits, an individual is disabled when he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months[.]” 42 U.S.C. § 423(d)(1)(A). To determine whether a person satisfies these
criteria, the SSA has developed a five‐step test. See 20 C.F.R. § 404.1520.1 If the
Commissioner finds an individual disabled or not disabled at any step, the next step is
not taken. Id. § 404.1520(a)(4).
At the first four steps of the analysis, the claimant has the burden to show: (1) she
is not engaged in “substantial gainful activity;”2 (2) she has a “severe medically
determinable . . . impairment . . . or a combination of impairments that is severe” that
has lasted or is expected to last for at least one year; and that either (3) her impairment
or impairments meet or equal one of the “listings” of presumptively disabling
impairments; or (4) she is unable to perform her “past relevant work.” Id. §
404.1520(a)(4)(i–iv); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Step four of this analysis consists of three phases. Winfrey v. Chater, 92 F.3d 1017,
1023 (10th Cir. 1996). First, the ALJ determines the claimant’s RFC in light of “all of the
relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). A claimant’s RFC is
“the most [he or she] can still do despite [physical and mental] limitations.” Id. §
Plaintiff has applied for both SSDI and SSI benefits. The five‐step test for determining disability is the
same for both types of benefits, although the test is codified in two separate sections of the Code of
Federal Regulations. 20 C.F.R § 404.1520 governs SSDI; § 416.920 governs SSI.
2 “Substantial gainful activity” is work that is both substantial and gainful. 20 C.F.R. § 404.1572.
“Substantial work activity” is work that involves doing significant physical or mental activities. 20 C.F.R.
§ 404.1572(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not the
claimant has earned any such pay or profit. 20 C.F.R. § 404.1572(b).
404.1545(a)(1). Second, the ALJ determines the physical and mental demands of the
claimant’s past work. “To make the necessary findings, the ALJ must obtain adequate
‘factual information about those work demands which have a bearing on the medically
established limitations.’” Winfrey, 92 F.3d at 1024 (quoting Social Security Ruling 82‐62
(1982)). Third, the ALJ determines whether, in light of the RFC, the claimant is capable
of meeting those demands. Id. at 1023, 1025.
If the ALJ concludes that the claimant cannot engage in past relevant work, she
proceeds to step five of the evaluation process. 20 C.F.R. § 404.1520(a)(4)(v). At step
five, the burden of proof shifts to the Commissioner to show that the claimant is able to
perform other work which exists in significant numbers in the national economy,
considering the claimant’s RFC, age, education, and work experience. Grogan, 399 F.3d
B. The ALJ’s Decision
On February 14, 2014, the ALJ issued a decision denying Plaintiff’s application
for benefits. AR at 10‐26. In denying Plaintiff’s application, the ALJ applied the
required five‐step sequential analysis. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since her alleged onset date of January 19, 2007.
AR at 15. At step two, the ALJ determined that Plaintiff had the following severe
impairments: tendonosis of the right shoulder; bipolar disorder; anxiety / post‐
traumatic stress disorder; depression; hypertension; obesity; irritable bowel syndrome;
chronic cervical sprain; and headaches. AR at 15‐16. At step three, the ALJ concluded
that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment. AR at 16‐19.
At step four, the ALJ determined that Plaintiff had the RFC to “perform light
work, as defined in 20 CFR 404.1567(b) and 416.967(b),” with certain listed limitations.
AR at 19‐24. The ALJ also found that Plaintiff is unable to perform any of her past
relevant work. AR at 24. However, at step five, the ALJ found that Plaintiff could
perform jobs that existed in significant numbers in the national economy, including
positions as a mail sorter and a merchandiser. AR at 24‐25.
Plaintiff claims that the ALJ failed to properly evaluate the opinion evidence of
Dr. Mark Beale, the SSA’s examining physician. Doc. 19 at 11‐14. In determining a
claimant’s RFC, an ALJ “is required to consider all of the claimant’s medically
determinable impairments, singly and in combination,” and a failure to do so is
reversible error. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). While an ALJ
“need not discuss all of the evidence in the record, he may not ignore evidence that
does not support his decision, especially when that evidence is significantly probative.”
Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (quotations
An ALJ is required to “consider all medical opinions in the record,” and must
also discuss the weight assigned to such opinions. Quintero v. Colvin, 567 F. App’x 616,
620 (10th Cir. 2014) (citing 20 C.F.R. §§ 404.1527(c), (e)(2)(ii), 416.927(c), (e)(2)(ii)). To
determine what weight to give to a medical opinion, the ALJ must consider the
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physicianʹs opinion is supported
by relevant evidence; (4) consistency between the opinion and the record
as a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJʹs
attention which tend to support or contradict the opinion.
Goatcher v. U.S. Depʹt of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing
20 C.F.R. § 404.1527(d)(2)‐(6)); see also Kilpatrick v. Astrue, 502 F. Appʹx 801, 806 (10th Cir.
These rules apply not only to the opinion of a claimant’s treating physician, but
also to the findings of fact made by state agency medical consultants. See SSR 96‐6P,
1996 WL 374180, at *2 (S.S.A. July 2, 1996) (“[T]he rules for considering medical and
other opinions of treating sources and other sources in paragraphs (a) through (e) also
apply when we consider the medical opinions of nonexamining sources, including State
agency medical and psychological consultants and other program physicians and
psychologists.”). Under the regulations, “[u]nless a treating sourceʹs opinion is given
controlling weight, the administrative law judge must explain in the decision the
weight given to the opinions of a State agency medical or psychological consultant . . . .”
20 C.F.R. § 416.927(e)(2)(ii); § 404.1527(e)(2)(ii).
First, Defendant argues that the ALJ was not required to weigh Dr. Beale’s
opinion because Dr. Beale “did not assess any specific work‐related functional
limitations in conducting his examination . . . .” Doc. 23 at 8 (citing Duncan v. Colvin, 608
F. App’x 566, 574 (10th Cir. 2015) (unpublished) for the proposition that an ALJ need
not weigh a medical source statement that does not include any opinions regarding a
claimant’s work‐related functional limitations). However, the Program Operations
Manual System (POMS)3 states that the “functional areas deemed essential to work are:
(1) Activities of daily living (ADL’s), (2) social functioning, (3) concentration,
persistence, or pace, and (4) the ability to tolerate increased mental demands associated
with competitive work.” POMS DI 22511.005(B). Therefore, Dr. Beale’s opinion
regarding Plaintiff’s moderate limitations as to concentration, persistence, and pace did
assess work‐related functional limitations, and the ALJ was required to address it. See
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“[A] moderate impairment is not the
same as no impairment at all.”).
The ALJ noted at step three that “[t]he State medical consultant found that the
claimant’s mental impairments could cause moderate difficulty with sustained
The POMS is “a set of policies issued by the [SSA] to be used in processing claims.” McNamar v. Apfel,
172 F.3d 764, 766 (10th Cir. 1999). The Court generally defers to the POMS provisions unless it
determines they are “arbitrary, capricious, or contrary to law.” Id.; see also Carver v. Colvin, 600 F. App’x
616, 618 n.1 (10th Cir. 2015).
concentration, persistence, or pace.” AR at 18. The ALJ then stated that she “agreed . . .
that [Plaintiff] has moderate limitations in concentration, persistence, and pace.” AR at
18. At step four, the ALJ discussed the opinion of Dr. Beale in her determination of
On July 19, 2011, the claimant saw Dr. Mark Beale, MD, for a mental status
examination. During the examination, the claimant was found to be in a
depressed mood, lethargic, and anxious. Her recent and remote memory was
also found to be intact. However, the claimant reported that she could perform
activities of daily living without difficulty, as she reported that she could cook,
clean, and do laundry, which is inconsistent with her testimony. Dr. Beale gave
the claimant a diagnosis of major depression. She was also given a Global
Assessment of Functioning (GAF) score of 60‐70, which indicates her symptoms
AR at 21.
From this discussion, the ALJ appears to have considered the opinion of Dr.
Beale, yet she failed to mention any assignment of weight to his opinion. See generally
AR at 21. However, the ALJ’s failure to assign weight to Dr. Beale’s opinion only
constitutes error if the ALJ’s determination of Plaintiff’s RFC required her to reject or
unfavorably weigh portions of that opinion. See Rose v. Colvin, 634 F. Appʹx 632, 637
(10th Cir. 2015) (“When the ALJ does not need to reject or weigh evidence unfavorably
in order to determine a claimantʹs RFC, the need for express analysis is weakened.”)
(citation omitted); Maynard v. Astrue, 276 F. Appʹx 726, 729 (10th Cir. 2007) (“[T]he mere
fact that the ALJ did not assign weights to each of the consistent medical opinions was
Plaintiff argues that the ALJ’s determination of her RFC is inconsistent with Dr.
Beale’s findings that Plaintiff’s “mood and focus . . . interfere with her persistence and
pace” and that Plaintiff’s “concentration is defective but functional.” AR at 598; see doc.
19 at 13‐14. In considering the opinion of Dr. Beale at step three, the ALJ purportedly
“agreed with” the opinion and accordingly found that Plaintiff “has moderate
limitations in concentration, persistence, and pace.” AR at 18. However, Plaintiff’s RFC
merely states that Plaintiff has the ability to perform “light work,” with the following
“[S]he can occasionally climb ramps or stairs, but cannot climb ladders, ropes, or
scaffolds; she also can perform only occasional overhead lifting; [she] can
understand[,] remember, and [carry out] simple instructions and tasks in a
workplace environment that is primarily object focused[;] and she can tolerate
only occasional interaction with the public.”
AR at 19.
It is clear that the ALJ failed to explicitly include in Plaintiff’s RFC a limitation
regarding her impairments in concentration, persistence, and pace. AR at 19; compare
with Ray v. Colvin, 657 F. App’x 733, 735 (10th Cir. 2016) (unpublished) (RFC stating that
the claimant “is limited to simple, routine, repetitive tasks and can maintain attention,
concentration, persistence, and pace for two hours at a time”). As the ALJ seemingly
gave great weight to the opinion of Dr. Beale, the ALJ was required to either include Dr.
Beale’s finding of a moderate impairment in concentration, persistence, and pace in
Plaintiff’s RFC or otherwise explain why she rejected such finding. See Haga, 482 F.3d at
1208 (“An ALJ is not entitled to pick and choose through an uncontradicted medical
opinion, taking only the parts that are favorable to a finding of nondisability.”); Givens
v. Astrue, 251 F. Appʹx 561, 568 (10th Cir. 2007) (unpublished) (“If the ALJ rejects any
significantly probative medical evidence concerning [the claimant’s] RFC, he must
provide adequate reasons for his decision to reject that evidence.”).
Of course, the failure by an ALJ to expressly include a limitation of
concentration, persistence, and pace in a claimant’s RFC does not necessarily constitute
error. See, e.g., Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015). In Vigil, the ALJ
found at step three that the claimant had moderate difficulties in concentration,
persistence, and pace. Id. At step four, the ALJ expressly took these difficulties into
account in formulating the claimant’s RFC by restricting him to unskilled work, but did
not explicitly include a concentration, persistence, and pace limitation in his RFC. Id. In
finding that the ALJ did not err, the Tenth Circuit Court of Appeals noted the ALJ’s
statement that “the findings of a normal ability to recall items on immediate recall, and
an ability to spell words forward, as well as finding of normal thought processes,
indicate[d] that [the claimant] retain[ed] enough memory and concentration to perform
at least simple tasks.” Id. at 1203‐04. Consequently, the court held that “the ALJ
accounted for Vigilʹs moderate concentration, persistence, and pace problems in his
RFC assessment by limiting him to unskilled work.” Id. at 1204. Nonetheless, the court
cautioned that there “may be cases in which an ALJ’s limitation to ‘unskilled’ work
does not adequately address a claimant’s mental limitations.” Id.
An ALJ can limit a claimant to unskilled work by restricting him or her to jobs
with an SVP of 1 or 2. SSR 00‐4P, 2000 WL 1898704, at *3 (S.S.A. Dec. 4, 2000)
(“unskilled work corresponds to an SVP of 1‐2”); see also Vigil, 805 F.3d at 1204 (“[W]e
conclude that limiting the [claimant] to an SVP of only one or two adequately took
into account his moderate limitations in concentration, persistence, and pace.”). An ALJ
can also limit a claimant to unskilled work by finding that the claimant can (1)
“understand, carry out, and remember simple instructions;” (2) “make judgments that
are commensurate with the functions of unskilled work, i.e., simple work‐related
decisions;” (3) “respond appropriately to supervision, coworkers[,] and work
situations;” and (4) “deal with changes in a routine work setting.” SSR 85‐15p, 1985 WL
56857, at *4 (S.S.A. Jan. 1, 1985); POMS DI 25020.010(B)(3).
Here, the ALJ did not specifically include in Plaintiff’s RFC a limitation to
unskilled work, nor did she limit Plaintiff to work with an SVP of 1 or 2. See generally
AR at 19. The only limitation in Plaintiff’s RFC which is pertinent to this issue is that
“Plaintiff is limited to understanding, remembering, and carrying out simple
instructions and tasks.” AR at 19. While understanding, remembering, and carrying
out simple instructions constitutes one of the four basic mental demands of unskilled
work, the ALJ failed to include the other three mental demands in Plaintiff’s RFC. See
generally AR at 19. Most importantly, the ALJ omitted from Plaintiff’s RFC a limitation
to “mak[ing] judgments that are commensurate with the functions of unskilled work,”
such as limiting Plaintiff to only “simple work‐related decisions.” POMS DI
25020.010(B)(3); compare AR at 19 with Richards v. Colvin, 640 F. App’x 786, 788 (10th Cir.
2016) (unpublished) (RFC limiting the claimant to making “only simple work related
decisions”). As a result, Defendant cannot establish that the ALJ limited Plaintiff to
unskilled work. Therefore, I conclude that the ALJ committed error by failing to either
incorporate Dr. Beale’s opinion that Plaintiff has moderate limitations in concentration,
persistence, and pace into Plaintiff’s RFC or to otherwise explain why she rejected that
I recognize that both jobs which, at step five, the ALJ determined Plaintiff could
perform have an SVP of 1 or 2. See AR at 25; MAIL CLERK, Dictionary of Occupation
Titles, 209.687‐026 (SVP: 2); MARKER, Dictionary of Occupational Titles, 209.587‐034
Even if I were to find that the RFC implicitly limited Plaintiff to simple tasks, the rule in Vigil would still
not apply because the ALJ failed to state whether this limitation was intended to address and incorporate
Plaintiff’s moderate limitation in concentration, persistence, and pace. Compare AR at 13‐26 with Vigil, 805
F.3d at 1203‐04; see also Wiederholt v. Barnhart, 121 F. App’x 833, 839 (10th Cir. 2005) (unpublished)
(finding that “the relatively broad, unspecified nature of the description ‘simple’ and ‘unskilled’ does not
adequately incorporate the ALJʹs additional, more specific findings” of “moderate difficulties maintaining
concentration, persistence, or pace” where the ALJ omitted such findings without explanation); Alcantar
v. Colvin, No. 15‐CV‐01448‐REB, 2016 WL 4919982, at *4 (D. Colo. Sept. 14, 2016) (finding Vigil
inapplicable where “in fashioning the [RFC] assessment, the ALJ . . . purported to adopt a medical
source’s opinion while simultaneously failing to explain why potentially significant limitations contained
in that opinion were not adopted”); Chambers v. Barnhart, 2003 WL 22512073, at *3 n.2 (10th Cir. Nov. 6,
2003) (unpublished) (recognizing that “restricting a claimant to simple tasks can address a deficiency in
concentration, persistence[,] and pace if that deficiency was found to apply only to complex tasks”) (emphasis
(SVP: 2). At first blush, this fact may lead one to conclude that the ALJ’s error was
harmless. This conclusion, though, would arise from a misunderstanding of the nature
of the error. If the ALJ had limited Plaintiff to jobs of SVP 1 or 2, I could conclude that
she (i) considered Dr. Beale’s opinion about Plaintiff’s impairment in concentration,
persistence, and pace, and (ii) found that the impairment would not prevent Plaintiff
from performing jobs of SVP 1 or 2. Having not limited Plaintiff to such jobs, I cannot
conclude the ALJ even considered the impairment. As such, I am left to guess whether,
if the ALJ had considered the impairment, she would have found that it removed even
SVP 1 or 2 jobs from Plaintiff’s prospects. Therefore, I cannot say with confidence that
the error was harmless.
For the foregoing reasons, I conclude that the ALJ erred by excluding from her
RFC determination Dr. Beale’s finding of moderate limitations as to concentration,
persistence, and pace without explanation, and that the error is not harmless.
Therefore, I recommend that Plaintiff’s Motion to Remand to Agency for Rehearing
(doc. 19) be GRANTED and the action be REMANDED to the Commissioner for further
GREGORY B. WORMUTH
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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