Hamlett v. Social Security Administration
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 18 MOTION to Remand to Agency for a Rehearing with Supporting Memorandum filed by Raymond Lawrence Hamlett by Magistrate Judge Lourdes A. Martinez. Objections to PF&RD due by 12/22/2016 . 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).) (jca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAYMOND LAWRENCE HAMLETT,
No. CIV-15-0725 RB/LAM
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum (Doc. 18) filed on April 7, 2016 (hereinafter
On July 13, 2016, Defendant filed a response to the motion (Doc. 21) and, on
August 4, 2016, Plaintiff filed a reply (Doc. 26). On August 21, 2016, United States District
Judge Robert C. Brack issued an order referring this case to the undersigned to hold hearings,
perform legal analysis, and prepare proposed findings and a recommended disposition, if
necessary. [Doc. 6]. The Court has reviewed the motion, response, reply, and relevant law.
Additionally, the Court has meticulously reviewed and considered the entire administrative record.
Within fourteen (14) days after a party is served with a copy of these proposed findings and
recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2), file
written objections to such proposed findings and recommended disposition. A party must file any objections
with the clerk of the United States District Court for the District of New Mexico within the fourteen-day period
allowed 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. Pursuant to Fed. R. Civ. P. 72(b)(2), a party
may respond to another party’s objections within fourteen (14) days after being served with a copy of the
[Doc. 13]. For the reasons set forth below, the Court recommends that Plaintiff’s Motion to
Reverse and Remand for a Rehearing With Supporting Memorandum (Doc. 16) be GRANTED
and the decision of the Commissioner of Social Security (hereinafter “Commissioner”) be
I. Procedural History
On July 21, 2011, Plaintiff filed applications for Disability Insurance Benefits (hereinafter
“DIB”) and Supplemental Security Income (hereinafter “SSI”) (Doc. 13-13 at 2-3 and 4-9,
respectively), alleging onset of disability on April 28, 2011 (id. at 4 and 10, respectively).
Plaintiff stated that he was disabled by back pain, neck pain, sciatica, and hypertension.
[Doc. 13-14 at 6]. Plaintiff’s applications were denied at the initial level on October 21, 2011
(Doc. 13-9 at 2-3), and at the reconsideration level on March 28, 2012 (id. at 4-5). Pursuant to
Plaintiff’s request (Doc. 13-10 at 26-29), Administrative Law Judge Michelle K. Lindsay
(hereinafter “ALJ”) conducted a hearing on October 3, 2013 (Doc. 13-8 at 2-41). Plaintiff
appeared at the hearing, represented by his former attorney, Agatha Brody, and testified. Id.
at 7-33. Vocational Expert Cornelius J. Ford 2 (hereinafter “VE”) also testified. Id. at 33-39.
On January 24, 2014, the ALJ issued her decision, finding that, under the relevant sections of the
Social Security Act, Plaintiff was not disabled.
[Doc. 13-6 at 28].
On March 24, 2014,
Plaintiff’s former counsel requested that the Appeals Council review the ALJ’s decision.
[Doc. 13-3 at 21-22]. On May 7, 2014 (id. at 26) and May 23, 2014 (Doc. 13-4 at 3), Plaintiff’s
current counsel submitted additional medical records to the Appeals Council for its consideration.
Mr. Ford is identified in the hearing transcript as “TJ Ford” (Doc. 13-8 at 2 and 5); however, his resume
identifies him as “Cornelius Joseph Ford” (Doc. 13-12 at 26-28).
On June 19, 2015, the Appeals Council denied review on the ground that it had “found no reason
under our rules to review the [ALJ]’s decision. Id. at 3. In its decision, the Appeals Council
indicated that it had considered the additional evidence submitted, but that any evidence for a
period after the date of the ALJ’s decision “does not affect the decision about whether you were
disabled beginning on or before January 24, 2014.” Id. at 4. This was the final decision of the
Commissioner. On August 8, 2015, Plaintiff filed his complaint in this case. [Doc. 1].
II. Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards were applied.
(10th Cir. 2008)
Sec’y of Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)).
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 Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).
meticulously review the entire record but should neither re-weigh the evidence nor substitute its
judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118 (citation and quotation marks
omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d
at 760 (citation and quotation marks omitted). An ALJ’s decision “is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of
evidence supporting it.”
Langley, 373 F.3d at 1118 (citation and quotation marks omitted);
Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted).
While a court may not
re-weigh the evidence or try the issues de novo, its examination of the record as a whole must
include “anything that may undercut or detract from the ALJ’s findings in order to determine if the
substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005)
(citations omitted). “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent [the ALJ]’s findings from being supported by substantial evidence.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
III. Applicable Law and Sequential Evaluation Process
For purposes of DIB and SSI, a person establishes a disability 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.”
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a) and 416.905(a).
42 U.S.C. §§ 423(d)(1)(A),
In light of this definition for
disability, a five-step sequential evaluation process (SEP) has been established for evaluating a
20 C.F.R SS 404.1520 and 416.920; Bowen v. Yuckert, 482 U.S. 137, 140
(1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the
claimant is not engaged in “substantial gainful activity;” and (2) the claimant has a “severe
medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and either (3) the claimant’s impairment(s) either meet(s) or
equal(s) one of the “Listings” of presumptively disabling impairments; or (4) the claimant is
unable to perform his “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i–iv); Grogan, 399 F.3d
At the fifth step of the evaluation process, the burden of proof shifts to the
Commissioner to show that the claimant is able to perform other work in the national economy,
considering his residual functional capacity (hereinafter “RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
IV. Plaintiff’s Age, Education, Work Experience,
and Medical History; and the ALJ’s Decision
Plaintiff was born on October 8, 1974, and was 36 years old, which is defined as a
“younger person” aged 18-49 (20 C.F.R. §§ 404.1563(c); 416.963(c)), on the alleged disability
date of April 28, 2011. [Doc 13-14 at 2]. Plaintiff’s previous work was as a dispatcher for a
freight company, a construction crew leader, a cook/bartender, and a general laborer. Id. at 14.
Plaintiff claims disability due to degenerative disc disease in his lumbar and cervical spine,
depressive disorder, and borderline personality disorder. [Doc. 18 at 1]. Plaintiff’s medical
records include 3: Disability Determination Examination, dated October 8, 2011, by Laura A
Briggs, M.D. (Doc. 13-16 at 22-26); Physical RFC Assessment, dated October 21, 2011, by
Stephen A. Whaley, M.D. (id. at 31-38); Physical RFC Assessment, dated July 6, 2011, by Shauna
McCosh, CNP (Doc. 13-26 at 8); Treatment records from Hidalgo Medical Services for the
periods: from December 15, 2010 to January 9, 2012 (Doc. 13-26 at 21 through Doc. 13-27
This decision directly addresses only the ALJ’s assessment of the opinion of Certified Nurse Practitioner
Shauna McCosh and the ALJ’s determination that Plaintiff’s depression does not meet or medically equal Listing
1.04. Therefore, the numerous medical records relating to Plaintiff’s other impairments are, for the most part, not
listed here. Additional medical records provided by Plaintiff’s counsel after the ALJ’s decision was entered
(Doc. 13-3 at 26; through Doc. 13-6 at 14) also are not specifically identified here, but are part of the record that
should be considered on remand. O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994) (new evidence submitted to
Appeals Council becomes part of the administrative record); Smith v. Apfel, 141 F.3d 1185, at *4 (10th Cir. 1998)
(unpublished) (records submitted to Appeals Council should be considered by the ALJ on remand).
at 23) and from February 9, 2012 to December 6, 2012 (Doc. 13-50 at 57-72); Initial Psychiatric
Evaluation, dated September 20, 2012, by Glenn Michael Dempsey, M.D., Socorro Mental
Health, Inc. (Doc. 13-27 at 24-25); Comprehensive Service Plan, dated April 29, 2013, also from
Socorro (id. at 29-31); Initial Behavioral Health Assessment, dated July 3, 2012, also from
Socorro Mental Health, Inc. (id. at 32-38); Treatment records from Border Area Mental Health for
the period from March 13, 2012 through September 11, 2013 (Doc. 13-50 at 4-56); and Psychiatric
hospitalization records from Gila Regional Medical Center for the periods: from April 13-19,
2012 (Doc. 13-33 at 13 through Doc. 13-41 at 7), from April 28, 2012 through May 1, 2012
(Doc. 13-28 at 2 through Doc. 13-33 at 12), and from June 24-27, 2012 (Doc. 13-43 at 2 through
Doc. 13-44 at 3). Where relevant, Plaintiff’s medical records are discussed in more detail below.
At step one of the five-step SEP, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since April 28, 2011, the alleged onset date. [Doc. 13-6 at 20]. At step two, the
ALJ found that Plaintiff has the following severe impairments: “degenerative disc disease of the
lumbar spine, status post-surgical intervention; degenerative disc disease of the cervical spine;
depressive disorder; borderline personality disorder with dependent personality traits; and alcohol
abuse.” Id. At the third step, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. § 404, Subpt. P, Appx. 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). Id. The ALJ considered Listing 1.04 Disorders of
the Spine, as well as mental Listings 12.04 (Affective Disorders) and 12.08 (Personality
Disorders). Id. at 21-22. In reaching her determination regarding listed mental impairments, the
ALJ found that Plaintiff has mild restriction of his activities of daily living; moderate difficulty
with social functioning; moderate difficulty with concentration, persistence, and pace; and has had
no episodes of decompensation of extended duration. Id. at 21. The ALJ therefore concluded
that Plaintiff had not satisfied the Paragraph B criteria. Id. The ALJ then found that “the
evidence fails to establish the presence of the ‘paragraph C’ criteria of Listing 12.04,” as well. Id.
Before step four, the ALJ determined Plaintiff’s RFC, concluding that he has the functional
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except
[Plaintiff] can lift, carry, push, and pull 20 pounds occasionally and 10 pound [sic]
frequently; sit for at least six hours in an eight-hour workday; and stand and walk in
combination for six hours in an eight-hour workday; he requires the option to
perform work seated or standing; he can occasionally climb stairs and ramps, stoop,
crouch, kneel and crawl; frequently balance; never climb ladders, ropes or
scaffolds; and must avoid concentrated exposure to extreme cold, unprotected
heights, and vibration. He is further limited to understanding, remembering, and
carrying out only simple instructions; is able to maintain attention and
concentration to perform simple tasks for two hours at a time without requiring
redirection to task; requires work involving no more than occasional change in the
routine work setting; can have only occasional contact with the general public; and
can have only occasional interactions with co-workers and supervisors.
Id. at 22.
At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. Id.
at 26. The ALJ based this conclusion on the VE’s testimony that Plaintiff’s previous work had
been actually performed by Plaintiff as light semi-skilled, heavy semi-skilled, and very heavy
unskilled, none of which Plaintiff could perform with his current RFC. Id. Based on that
determination, the ALJ proceeded to step five, where she relied on the VE’s testimony that
Plaintiff would be able to perform the requirements of representative occupations such as
assembler (DOT 4 706.684-022), garment sorter (DOT 222.687-014), and wire cutter/stripper
(DOT 728.684-022), all of which are considered light, unskilled work. Id. at 27-28. The ALJ
found that the VE’s testimony was consistent with the DOT information, and concluded that
Plaintiff “is capable of making a successful adjustment to other work that exists in significant
numbers in the national economy,” and that he is “not disabled.” Id. at 28.
In his motion, Plaintiff contends that: (1) the ALJ failed to provide adequate reasons for
rejecting the opinion of treating Certified Nurse Practitioner Shauna McCosh; (2) the ALJ’s
Listing 12.04 determination is “clearly erroneous”; (3) the ALJ’s “light work” exertional rating is
unsupported by substantial evidence and is contrary to law; and (4) the ALJ failed to identify and
resolve a conflict between the RFC she assessed for Plaintiff and the jobs identified by the VE.
[Doc. 18 at 2]. Defendant disputes these contentions and argues that: (1) “the ALJ provided
several valid reasons for giving little weight to nurse McCosh’s opinion” (Doc. 21 at 8); (2) the
ALJ’s finding that Plaintiff did not meet the Listing 12.04 criteria is supported by substantial
evidence (id. at 10); (3) Plaintiff’s challenges to the ALJ’s RFC are not well taken (id. at 9-10);
and (4) “there are no material conflicts between [the VE’s] testimony and evidence in the [DOT]”
(id. at 12). In his reply, Plaintiff states that: (1) the ALJ did not follow the correct legal standard
for evaluating Nurse Practioner McCosh’s opinion (Doc. 26 at 3); (2) the ALJ failed to explain
why Plaintiff’s severe depression does not meet the criteria of Listing 12.04 (id. at 4); (3) the
DOT stands for “Dictionary of Occupational Titles,” available at http://www.occupationalinfo.org/
last visited December 7, 2016).
ALJ’s RFC improperly fails to specify either duration or frequency for the sit/stand limitation (id.
at 7); and (4) the ALJ could not rely on the VE’s testimony as it was based on insufficient
hypotheticals (id. at 8).
A. The ALJ’s Consideration of Ms. McCosh’s Opinion
Shauna McCosh, CNP, at Hidalgo Medical Services, Mimbres Valley Clinic, began acting
as Plaintiff’s primary medical care provider in December 2010.
See [Doc. 13-26 at 8 and
Doc. 13-27 at 21]. Plaintiff also received treatment from other medical providers who worked in
the same clinic with Ms. McCosh, including physicians. See, e.g., [Doc. 13-26 at 28-29 and
32-33]. On July 6, 2011, Ms. McCosh saw Plaintiff to review his pain medication needs.
[Doc. 13-27 at 8]. At that visit, Ms. McCosh noted that Plaintiff was there for:
[f]ollow up from back surgery 2 months ago and car accident 2 weeks ago, for an
old injury in his neck with arthritis. Back pain was getting better before accident,
but it is really bad now. Two days ago fell walking through his kitchen, mom
witnessed and she felt he lost consciousness for a few seconds and his eyes rolled
back. 3 incidents of dizziness yesterday. [Plaintiff] brought in some paper work
from the state for disability.
Id. Ms. McCosh noted that Plaintiff was “alert and oriented,” but was also “uncomfortable [and]
tearful.” Id. She noted “weakness in [Plaintiff’s] left leg,” as well as diminished sensations in
Plaintiff’s musculoskeletal symptoms consisted of:
tingling/numbness, muscle weakness, pain with movement, shooting leg pain, sciatica, neck pain,
arthritis, [and] muscle cramping.”
Id. at 9.
His neurological symptoms consisted of:
“headache, tingling, numbness, insomnia, dizziness, weakness, fainting, [and] burning pain in
back (next to incision), left leg inner thigh, and right hip.” Id. On the same date, Ms. McCosh
filled out and signed a physical functional capacity questionnaire for Plaintiff. [Doc. 13-26 at 8].
On that form, Ms. McCosh listed Plaintiff’s diagnoses as back pain, neck pain, sciatica,
hypertension, and syncope; gave a prognosis that “full recovery is poor;” and indicated that his
impairments were expected to last at least twelve months. Id. She further indicated that Plaintiff
could stand/walk for four hours out of an eight-hour workday, and could likewise sit for four out of
eight hours. Id. She indicated that Plaintiff could frequently lift and carry less than ten pounds,
could occasionally lift/carry ten pounds, rarely lift/carry twenty pounds, and never lift/carry fifty
pounds, in a competitive work situation. Id. Also, Plaintiff could frequently finger, grasp, and
handle, but could rarely stoop/bend or crouch.
Ms. McCosh opined that Plaintiff’s
“experience of pain” would frequently be “severe enough to interfere with his attention and
concentration needed to perform even simple work tasks.” Id. She indicated that Plaintiff had
five out of nine stated symptoms, which were positive straight leg raising test, impaired sleep,
sensory loss, muscle weakness, and reduced range of motion. Id. Finally, she indicated that, on
average, Plaintiff’s impairments or treatment would cause him to be absent from work
approximately four days per month, but that it “depends on the work.” Id.
The ALJ gave “little weight” to Ms. McCosh’s opinion “because it is brief, conclusory, and
inadequately supported by clinical findings. An opinion that is not from an acceptable medical
source is not entitled to be given the same weight as a qualifying medical source opinion.”
[Doc. 13-6 at 25] (citations omitted). The ALJ also indicated that Ms. McCosh’s functional
assessments were “inconsistent with [Plaintiff]’s admitted activities of daily living that have
already been described above in this decision.” Id. (citing Doc. 13-26 at 2 through Doc. 13-27
at 23, consisting of medical records from Mimbres Valley Clinic, where Plaintiff was treated by
Ms. McCosh). Previously, in her summarization of Plaintiff’s hearing testimony, the ALJ noted
that Plaintiff stated that: (1) he had difficulty going up the four steps to his parents’ mobile home;
(2) “he cannot engage in heavy lifting, is unable to stand for more than 10 minutes, sitting is
limited, and due to muscle spasms he must lay on his stomach for 20-30 minutes”; (3) “he can lift
milk from the refrigerator”; (4) “he experiences difficulty doing laundry and washing dishes”;
(5) “he spends approximately five hours a day in a recliner”; (6) “he experiences numbness in the
right knee and experiences stabbing shooting pains”; (7) “he cannot horseback ride or cannot ride
his motorcycle”; and (8) “he can read, watch television and movies.” Id. at 23. The ALJ did not
explain how any of these “admitted activities” are inconsistent with Ms. McCosh’s functional
Defendant argues on appeal that the ALJ may properly reject a medical opinion because it
is “conclusory,” citing Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009). [Doc. 21 at 8].
Here, CNP McCosh’s opinion consisted of filling out a form functionality assessment that was
apparently provided by the state Division of Disability Services (hereinafter “DDS”).
[Doc. 13-27 at 8 (July 6, 2011 record notation by Ms. McCosh: “[Plaintiff] brought in some
paper work from the state for disability”)]. It seems somewhat disingenuous to reject a form that
was provided by DDS on the ground that it is “conclusory.” In any event, there is a significant
difference between explaining how a decision is conclusory, and simply labeling it as such. In
Raymond, the case cited by Defendant, the court found that the ALJ had “articulate[d] specific,
legitimate reasons for his decision,” such as, that the physician’s notes at issue simply recited the
plaintiff’s complaints, were not based on a physical examination, provided little analysis of the
plaintiff physical limitations, and were inconsistent with other medical evidence that was based on
physical examinations. Id. (citation omitted). The Raymond court also concluded that “each of
[the ALJ’s] findings [wa]s supported by substantial evidence in the record.” Id. Here, the ALJ
effectively rejected 5 Ms. McCosh’s physical function assessment because it was “conclusory,”
inconsistent with Plaintiff’s “admitted activities,” “inadequately supported by clinical findings,”
and did not come “from an acceptable medical source.” [Doc. 13-6 at 25]. Without more
explanation, these reasons are inadequate to reject a treating medical provider’s opinion. See
Soc. Sec. Rep. 06-3p at *5 (opinions from not acceptable medical sources should be weighed in
accordance with the same 20 C.F.R. §§ 404.1527(d) and 416.927(d) factors applicable to
acceptable medical sources). See also Givens v. Astrue, 251 F. App’x 561, 568 (10th Cir.
Oct. 18, 2007) (unpublished) (ALJ “must provide adequate reasons” for rejecting “significantly
probative medical evidence”); Sills v. Astrue, 11-0793, Doc. 23 at 16-17 (D. N.M. July 17, 2012)
(unpublished) (ALJ’s failures to both “provide a clear reason” for rejecting a not acceptable
treating source’s opinion and to discuss the 20 C.F.R. § 416.927 factors requires remand).
Moreover, Defendant’s efforts to provide reasons for the ALJ’s decision constitute
impermissible post-hoc reasoning. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007)
(“court may not create or adopt post-hoc rationalizations to support the ALJ's decision that are not
apparent from the ALJ's decision itself”). An ALJ’s findings of fact must be tied to the evidence
Assigning “little weight” to a medical source’s opinion effectively rejects it. See, e.g., Chapo v. Astrue,
682 F.3d 1285, 1291 (10th Cir. 2012).
by the ALJ, and post-hoc citation to the record in support of those facts is not permissible. See,
e.g., Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (if harmless-error determination rests
on matters not considered by the ALJ, it risks violating the proscription against post-hoc
justification). For example, Defendant contends that Ms. McCosh was not “a treating mental
health provider,” 6 because she examined Plaintiff “only twice before she issued her July 2011
opinion.” [Doc. 21 at 8]. However, the ALJ did not herself give this as a reason for rejecting
Ms. McCosh’s opinion. Similarly, in support of the ALJ’s statement that Ms. McCosh’s opinion
was “inadequately supported by clinical findings,” Defendant asserts that “Plaintiff had normal or
near-normal (4+/5) strength during all but one examination,” “did not have any muscle wasting or
atrophy in his legs,” and “there was no evidence of objectively reduced sensation or other
neurological abnormalities.” Id. at 9. Again, however, this Court has no way of discerning the
ALJ’s reasons for her statement regarding inadequate clinical findings because she did not identify
them. Defendant’s effort to identify inconsistencies between Ms. McCosh’s clinical notes and
her opinion on appeal is simply impermissible post-hoc reasoning. The ALJ’s failure to tie her
conclusions regarding Ms. McCosh’s opinion to the evidence, along with her failure to consider
and discuss the regulatory weighing factors constitute errors that require reversal.
It is not clear why Defendant refers to Ms. McCosh as a “mental health provider,” since she specializes in
family practice and only expressed an opinion regarding Plaintiff’s physical functionality. See [Doc. 13-26 at 8].
However, Plaintiff did receive psychological counseling from one of Ms. McCosh’s colleagues, Barbara
Cichosz. LMFT. See Id. at 34-35, 38-39, and 42-43.
B. The ALJ’s Listing 12.04 Determination
Certain impairments are considered severe enough to justify a presumption of disability in
those who meet their criteria.
Those impairments are set forth in an appendix of “Listed
Impairments,” at 20 C.F.R. § 404, Subpt. P, Appx. 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). Listing 12.04 is within the category “Mental
Disorders,” and specifically details the criteria for “affective disorders.” At step three of the SEP,
the ALJ considers whether any of the claimant’s impairments “meets or medically equals” one of
the listed impairments. If an impairment is found to meet or medically equal a listed impairment,
it is conclusively presumed to be disabling, and there is no need for further SEP analysis. See
20 C.F.R. §§ 404.1520(d) and 416.920(d).
In this case, the ALJ found at step two that “depressive disorder” is a severe impairment
from which Plaintiff suffers. [Doc. 13-6 at 20]. At step three, the ALJ found that Plaintiff had
no impairment or combination of impairments that met or medically equaled any of the listed
impairments. Id. Plaintiff claims that this finding is erroneous, and that “[t]here is no indication
that ALJ Lindsay actually considered the probative evidence of record” in reaching her listing
conclusions. [Doc. 18 at 14]. More specifically, in her reply, Plaintiff argues that the ALJ’s
conclusion that his depression does not satisfy the criteria of Listing 12.04 is both without
explanation that is adequate for meaningful review, and not supported by the evidence. [Doc. 26
Listing 12.04 describes “affective disorders” as:
Characterized by a disturbance of mood, accompanied by a full or partial manic or
depressive syndrome. Mood refers to a prolonged emotion that colors the whole
psychic life; it generally involves either depression or elation.
The required level of severity for these disorders is met when the requirements in
both [paragraphs] A and B are satisfied, or when the requirements in [paragraph] C
20 C.F.R. § 404, Subpt. P, Appx. 1, § 12.04. For depression to satisfy the Listing 12.04 criteria
there must be a “[m]edically documented persistence, either continuous or intermittent, of . . .
[d]epressive syndrome” that is characterized by at least four out of nine stated symptoms in
paragraph A, and:
resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration. 7
Id., ¶ B.
Alternatively, Paragraph C provides that Listing 12.04 may also be satisfied if there is a:
Medically documented history of a chronic affective disorder of at least 2 years’
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
“The term repeated episodes of decompensation, each of extended duration in these listings means three
episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks. If [claimant has]
experienced more frequent episodes of shorter duration or less frequent episodes of longer duration, we must use
judgment to determine if the duration and functional effects of the episodes are of equal severity and may be used to
substitute for the listed finding in a determination of equivalence.” POMS: DI 34001.032(C)(4) available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0434001032#di34001032_mentaldecompensation (site last visited on
December 7, 2016).
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate;
3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.
Id., ¶ C.
Regarding Listings 12.04 and 12.08, the ALJ found that “[b]ecause [Plaintiff]’s mental
impairments do not cause at least two ‘marked’ limitations or one ‘marked’ limitation and
‘repeated’ episodes of decompensation, each of extended duration, the ‘paragraph B’ criteria are
not satisfied.” [Doc. 13-6 at 21]. The ALJ further found that Plaintiff “has experienced no
episodes of decompensation, which have been of extended duration” (id. at 21), and that there was
“no evidence of” the paragraph C criteria (id. at 21-22). The ALJ concluded that the Paragraph C
criteria were also not satisfied. Id. at 22.
Again, however, the ALJ fails to provide support for her findings. Plaintiff clearly does
suffer from depression, as the ALJ herself found. [Doc. 13-6 at 20]. See also [Doc 13-26 at 11]
(Plaintiff’s Aug. 12, 2011 PHQ-9 8 score of 20, which indicates “severe depression”). In finding
The PHQ-9 (Patient Health Questionnaire 9) is a nine-item scale that is self-administered and is used to
screen patients for depression. “It is one of the most validated tools in mental health and can be a powerful tool to
assist clinicians with diagnosing depression and monitoring treatment response. The nine items of the PHQ-9 are
based directly on the nine diagnostic criteria for major depressive disorder in the DSM-IV.”
https://aims.uw.edu/resource-library/phq-9-depression-scale (site last visited December 7, 2016). The test itself
provides the following total score interpretations: 0-4 indicates minimal depression; 5-9 indicates mild depression;
that Plaintiff’s depression did not satisfy the Listing 12.04 Paragraph B criteria, the ALJ found that
Plaintiff has mild restriction in his activities of daily living, and moderate difficulties in social
functioning and concentration, persistence or pace. [Doc. 13-6 at 21]. In so finding, the ALJ did
not rely on any mental health sources, nor did she specify the portions of the cited evidence upon
which she relied. Instead, the ALJ cites generally to a physical examination report by Laura
Briggs, M.D. (Doc. 13-16 at 22-26), an undated 9 Function Report filled out by Plaintiff
(Doc. 13-14 at 24-31), and Plaintiff’s entire hearing testimony.
In her RFC assessment of Plaintiff, the ALJ stated that she gave “limited weight” to the
DDS consulting physicians’ opinions at both the initial and reconsideration levels of reviewing
Plaintiff’s claims because “they indicated [Plaintiff has] no severe mental impairment, but the
evidence of record does show mental limitations.” [Doc. 13-6 at 24-25] (citing Doc. 13-9 at 6-15
and 17-26; Doc. 13-16 at 31-38). One of the opinions cited by the ALJ is a physical RFC
assessment dated October 21, 2011 by Stephen A. Whaley, M.D.
[Doc. 13-16 at 31-38].
Dr. Whaley did not even discuss Plaintiff’s depression, nor did he purport to be assessing
Plaintiff’s mental functionality. Id. The two other documents cited by the ALJ explain the
10-14 indicates moderate depression; 15-19 indicates moderately severe depression; and 20-27 indicates severe
depression. PHQ9 Copyright © Pfizer Inc.
Although Plaintiff’s function report is undated, it is located in the record between a form survey of pain and
other symptoms, which was filled out by Plaintiff and dated August 23, 2011 (Doc. 13-14 at 22-23), and a Request for
Evidence or Assistance (Disability Case) from Arkansas DDS to New Mexico DDS, dated September 13, 2011 (id.
at 32). Thus, it is reasonable to assume that the function report was filled out either on one of the, or between the two,
dates. On the other hand, Plaintiff testified at the ALJ hearing more than two years later, on October 3, 2013.
[Doc. 13-8 at 2-41].
reasons for denial of Plaintiff’s DIB and SSI claims at the reconsideration level, and are essentially
identical. In those reports, Stephen Fair, Ph.D., noted as follows:
On recon[sideration], the [Plaintiff] alleges depression. There is [medical
evidence of record] from Mimbres Valley Clinic, dated 9/11, indicating [Plaintiff
diagnosis] of depression, anxiety nos, [alcohol] abuse, and personality [disorder]
nos. However, there is no more current [medical evidence of record] indicating
[Plaintiff] psych [diagnosis or treatment]. So, without a psych [consultative
examination], there is insufficient evidence of current [Plaintiff mental health
diagnosis] and functioning to adjudicate this claim.
[Doc. 13-9 at 11, 22]. This statement does not constitute a “finding” by Dr. Fair to the effect that
Plaintiff does not suffer from severe depression. However, that is essentially how the ALJ treated
it. [Doc. 13-6 at 24-25].
Unfortunately, it does not appear that a psychiatric consultative examination was ever
requested by DDS, despite the agreement of Dr. Fair and Jenelle Lofton-Batchan, the
reconsideration level disability adjudicator, that one was needed. Id. at 9-10, 20. However,
there is considerable evidence relating to Plaintiff’s depression in the record, including Socorro
Mental Health, Inc. documents: (1) September 20, 2012 Initial Psychiatric Evaluation by Glenn
Michael Dempsey, M.D. (Doc. 13-27 at 24-25); (2) Comprehensive Service Plan, dated April 29,
2013 (id. at 29-31); and Initial Behavioral Health Assessment, dated July 13, 2012 (id. at 32-38).
In addition, there are in-patient psychiatric hospitalization records from Gila Regional Medical
Center for the periods: (1) from April 13-19, 2012 (Doc. 13-33 at 13 through Doc. 13-41 at 7);
(2) from April 28, 2012 through May 1, 2012 (Doc. 13-28 at 2 through Doc. 13-33 at 12); and
(3) from June 24-27, 2012 (Doc. 13-43 at 2 through Doc. 13-44 at 3), as well as treatment records
from Border Area Mental Health for the period from March 13, 2012 through September 11, 2013
(Doc. 13-50 at 4-56).
These records are evidence that Plaintiff has a well-established history of depression
symptoms and treatment, which was not available to Dr. Fair when he indicated that there was
“insufficient evidence” for him to adjudicate Plaintiff’s depression claim. [Doc. 13-9 at 11, 22].
However, that evidence was fully available to the ALJ prior to issuance of her decision on
January 24, 2014. Despite that availability, the ALJ did not discuss, or even cite, any of these
records in her opinion. Among other things, the records establish that Plaintiff was hospitalized
for a total of fifteen days within a period of just less than eleven weeks in 2012, due to his suicidal
thoughts and actions. 10
Even more significantly, Plaintiff’s medical records document his
psychological condition and its effects on him in a detailed and voluminous manner, yet the ALJ
failed to even discuss them. That failure violates the well-established precept that, “in addition to
discussing the evidence supporting [her] 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) (citations omitted). See also Carpenter v.
As noted in n.5, supra, these hospitalizations do not qualify as “repeated episodes of decompensation, each
of extended duration” because, although Plaintiff did suffer three episodes, they were not each two weeks long.
However, they might be considered to be “more frequent episodes of shorter duration,” with respect to which the ALJ
is directed to use her judgment “to determine if the duration and functional effects of the episodes are of equal severity
and may be used to substitute for the listed finding in a determination of equivalence.” POMS: DI 34001.032(C)(4)
available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0434001032#di34001032_mentaldecompensation (site last
visited on December 7, 2016). If the ALJ in this case in fact exercised her judgment and concluded that Plaintiff’s
“decompensation” episodes simply do not equal the listing, she should have stated that in her decision, along with her
reasons for that conclusion.
Astrue, 537 F.3d 1264, 1270 (10th Cir. 2008) (ALJ’s failure “to adequately discuss the evidence
and tie his conclusions to the evidence” mandates reversal). This the ALJ failed to do, which
requires that this case be remanded for further proceedings.
C. Plaintiff’s Other Claims
Plaintiff also argues that the ALJ erred by failing to resolve a conflict between the VE’s
testimony and the DOT, and that her RFC finding that Plaintiff is capable of light work is
unsupported by the evidence and contrary to law. Since this Court has determined that the ALJ’s
errors with respect to Ms. McCosh’s opinion and Listing 12.04, detailed above, warrant remand, it
is not necessary to also consider Plaintiff’s other claims of error. See Clifton, 79 F.3d at 1010.
(remand for additional proceedings at step three renders consideration of step five contentions
unnecessary). Nonetheless, this Court notes, as did the Clifton court (id.), that Plaintiff appears to
have raised some meritorious arguments. For example, the question of whether the representative
jobs proposed by the VE could actually be performed by someone with the RFC the ALJ had
assigned to Plaintiff appears to be a legitimate issue. However, since that issue and others are
likely to be affected by the proceedings on remand, they need not be evaluated here. See
Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004) (declining to reach the plaintiff’s
claims because they may be affected by resolution of the case on remand).
VI. Recommended Disposition
IT IS HEREBY RECOMMENDED, for the reasons stated above, that Plaintiff’s
Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (Doc. 16) be
GRANTED as set forth above, and the decision of the Commissioner be REMANDED for further
proceedings consistent with this opinion.
THE HONORABLE LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE
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