Trujillo v. Social Security Administration

Filing 38

ORDER by Magistrate Judge Kevin R. Sweazea deferring ruling on and staying proceedings with respect to 33 Motion to Remand to Agency pending decision by the Tenth Circuit Court of Appeals (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELSIE TRUJILLO,
Plaintiff,
No. 2:15-cv-00936-KRS
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
ORDER STAYING PROCEEDINGS PENDING TENTH CIRCUIT’S
DECISION IN VALLEJO V. BERRYHILL, NO. 17-1452
Elsie Trujillo seeks review of the Social Security Administration’s final action denying
her disability insurance benefits and supplemental security income. The crux of the appeal is
whether the Administrative Law Judge (“ALJ”) properly considered Ms. Trujillo’s complaints of
pain and the medical evidence in concluding she retained the residual functional capacity
(“RFC”) to perform light work. According to Ms. Trujillo and as supported by a “medical
source statement” from Colicia Meyerowitz, M.D., Ms. Trujillo’s pain prevents her from
standing more than an hour; walking more than 100 feet; sitting more than twenty minutes at a
time; and lifting more than a bag of groceries. (AR 1218-19). If the ALJ was required to accept
these restrictions, the ALJ’s decision must be reversed because Ms. Trujillo is incapable of light
work. Presiding by consent, see 28 U.S.C. § 636(c), the Court has thoroughly reviewed the
administrative record, Ms. Trujillo’s motion to remand (Doc. 33), the agency’s response in
opposition (Doc. 34), and Ms. Trujillo’ reply. (Doc. 36). Having done so, the Court concludes a
stay is warranted pending the Tenth Circuit’s decision in Vallejo v. Berryhill, No. 17-1452 (10th

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Cir., filed Dec. 19, 2017), which will provide guidance on how to address Dr. Meyerowitz’s
opinion.
In crafting the RFC, the ALJ contrasted Ms. Trujillo’s complaints of debilitating pain
with largely negative diagnostic findings and Ms. Trujillo’s robust activities of daily living. (AR
35-43). While the ALJ acknowledged Ms. Trujillo’s pain, the ALJ concluded the disabling
effects were not entirely supported in the record. (AR 43). The specific limitations the ALJ
assessed derive from the opinions of two non-examining, state-agency consultants, who
evaluated the medical evidence as of 2013 and concluded Ms. Trujillo was able to (1) stand or
walk for six hours in day; (2) “occasionally lift, carry, push and pull twenty pounds”; (3)
“frequently lift, carry, push, and pull ten pounds”; (4) occasionally climb ramps and stairs, but
never ladders, ropes or scaffolds; (5) frequently balance; (6) occasionally stoop, kneel, crouch
and crawl, but must avoid concentrated exposure to extreme cold, vibrations and hazards. (AR
42).
Contrary to Ms. Trujillo’s arguments, the Court is not convinced the ALJ erred in
evaluating the evidence. The ALJ took an exhaustive approach to the record before her, noting
almost every instance where Ms. Trujillo reported pain. (AR 35-43). The ALJ appropriately
acknowledged objective diagnostic findings, Ms. Trujillo’s tenderness to palpation, and issues
with range of motion. (Id.) The ALJ also examined Ms. Trujillo’s reports to her providers about
her daily activities, evaluated her first-hand accounts of those actives, and discussed providers’
recommendations to change her lifestyle—to become more active. (Id.). What Ms. Trujillo
ultimately asks the Court to do is to reweigh the evidence, which the Court may not. See Grogan
v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). Even if the Court could read the record
differently, substantial evidence nonetheless supports the ALJ’s decision. See id.

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One aspect of the case, however, prevents denial of Ms. Trujillo’s motion to reverse and
remand. After the ALJ rendered her decision, Ms. Trujillo submitted Dr. Meyerowitz’s opinion
to the Appeals Council. (AR 7-28). Dr. Meyerowitz, who began treating Ms. Trujillo in June
2013, concluded in a “medical source statement” dated May 3, 2016 that Ms. Trujillo could only
sit for fifteen minutes and stand for ten minutes continuously. (AR 1204). Moreover, within an
8 hour work day, Ms. Trujillo could stand and walk less than two hours and sit for about four
hours. (AR 1204). Functionally, Dr. Meyerowitz’s assessment means Ms. Trujillo cannot
perform light work. See 20 C.F.R. §§ 404.1567(b), 416.967(b); SSR 83-10, 1983 SSR LEXIS 30
at *14 (Jan. 1, 1983) (stating “light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday”). Significantly, up until this point, no doctor that
had examined Ms. Trujillo had assessed how Ms. Trujillo’s pain translates into an inability to
perform work. Although consultants reviewed her records, they did not have the benefit of inperson interaction and observation. See Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.
2004) (explaining that, typically, an ALJ should give greater weight to the opinion of a treating
physician than to that of a consultant or non-examining physician).
The Court cannot fault the ALJ. Dr. Meyerowitz’s medical source statement was not
before the ALJ. Equally true, however, is that had Ms. Trujillo provided the ALJ with Dr.
Meyerowitz’s opinion, the ALJ would have had to conduct a two-step analysis to first determine
whether the opinion was entitled to controlling weight, and if not, what weight to give the
opinion. See Langley, 373 F.3d at 1119. In determining weight, the ALJ would also have been
obligated to assess six regulatory factors, ranging from the length of the treating relationship to
the consistency of the opinion with the record. Id. (citation omitted). Further, had Dr.
Meyerowitz’s evaluation been available to the ALJ, the ALJ’s determination as written would

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not be supported by substantial evidence. See Wall v. Astrue, 561 F.3d 1048 (10th Cir. 2009)
(directing courts to “meticulously 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”). Finally, under established law, the Court may not perform the treating physician
analysis or assess the evidence for the ALJ. See Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993). In short, if Dr. Meyerowitz’s opinion is included in the record, the ALJ’s
decision is legally unsound and unsupported by substantial evidence.
Under traditional principles of administrative law, the absence of Dr. Meyerowitz’s
medical source statement from the materials before the ALJ would normally mean the opinion is
not part of the administrative record and not reviewable here. See, e.g., New Mexico Env. Imp.
Div. v. Thomas, 789 F.2d 825, 834 (10th Cir. 1986) (explaining that information not presented to
and thus not considered by the agency decision maker is not part of the administrative record).
Not so in the Social Security context: the Appeal Council’s denial of review of Dr. Meyerowitz’s
opinion means it becomes part of the record. See Vallejo v. Berryhill, 849 F.3d 951, 955 (10th.
Cir. 2017) (citing 20 C.F.R § 416.927(e)(3)). Yet without the ALJ’s consideration of this new
information in the first place, the ALJ’s decision necessarily is unsound, albeit without any fault
to the ALJ; the records were not yet in the record. See Thompson, 987 F.2d at 1487; Langley, 373
F.3d at 1119. Thus, the circumstances counsel, if not blatantly require, remand for the ALJ to
weigh Dr. Meyerowitz’s opinions.
However, the Tenth Circuit appears to have foreclosed remand as an option. In Vallejo,
the court of appeals reversed the district court’s decision to remand the case to the Appeals
Council for failure to apply the treating physician rule to an assessment that postdated the ALJ’s
determination. 849 F.3d at 955. As in this case, the Appeals Council, without explanation,

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denied review for the sole reason that the opinion would not change the case’s outcome. In
reversing the district court, the court of appeals rejected both the contention that the Appeals
Council had to make reasoned findings as well as the alternative argument that the district court
“couldn’t determine whether substantial evidence supports the Commissioner’s decision”
without the ALJ’s evaluation in the first place. Id. at 955 (reasoning that although “an express
analysis of the Appeals Council’s determination would be helpful for purposes of judicial review
nothing . . . requires such an analysis where new evidence is submitted and the Appeals Council
denies review”). The court of appeals explained that the district court’s “only option was to
conduct a substantial-evidence review by assessing the entire agency record, including [the
treating doctor’s] never-before assessed opinion.” Id.
The internal tension that Vallejo creates is not lost on this Court and was not lost on the
district court on remand. The district court in Vallejo framed the conflict as follows:
This Court has scrutinized the 10th Circuit’s decision and find[s] that it
creates a seemingly-inescapable procedural thicket. Nearly every conceivable
approach . . . [on] remand leads to the same conclusion— that the Commissioner's
decision is insufficient—yet the procedural mechanisms for accomplishing the
apparently-inevitable outcome are often foreclosed . . . .
The Court begins with the fact that [the treating source’s] opinion is now a
part of the agency’s record. . . . And because [the source] is a treating physician
of [the plaintiff], the Commissioner is required to make specific factual findings
that address the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight. The failure of the factfinder to explain the
weight given to the treating physician's opinion is an error of law requiring
remand.
Here, the ALJ offered no explanation of the weight given to [the
physician’s] opinion because, quite obviously, that opinion was not yet in the
record. . . . Because the Appeals Council denied review, the ALJ’s ruling has thus
become the [agency’s] final decision . . . . Therefore, because neither the ALJ nor
the Appeals Council ever made the necessary findings regarding the weight . . .
the final decision . . . is infected by a legal error that requires remand.

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But the 10th Circuit’s decision seems to foreclose . . . remanding the
matter to the Commissioner for further consideration. . . . The 10th Circuit . . .
explain[ed] that . . . the district court’s only option was to conduct a substantialevidence review by assessing the entire agency record, including . . . [the] neverbefore assessed opinion. But again, . . . the law requires the . . . ALJ to address the
weight to be given to a treating physician's opinion. The ALJ’s . . . decision does
not do so, and thus, the decision is inherently defective and incapable of surviving
a substantial evidence review. Reversal of the Commissioner’s decision and a
remand for further fact finding is the only remedy that could possibly result. It is
difficult to imagine that the 10th Circuit would remand the matter to this Court
simply so that the Court could conduct an assessment whose outcome was
obvious and inevitable, but that appears to be what has happened.
...
Thus, it appears to the Court that by accepting [the doctor’s] opinion into
the record but refusing to weigh it, the Commissioner has made a decision that
has an inherently fatal defect. Yet this Court’s reading of the 10th Circuit's
decision in this and other cases leaves the Court with no clear procedural
mechanism to carry out a review of that decision that can be in any way
meaningful.
Vallejo v. Berryhill, 2017 U.S. Dist. LEXIS 173652, *7-10 (D.N.M. Oct. 30, 2017) (internal
citation and quotation marks omitted). 1
This Court faces the same “procedural thicket” as did the district court above. Rather
than guess what the Tenth Circuit intended in Vallejo, however, the Court believes there is
another alternative. The agency has appealed the district court’s decision on remand in Vallejo,
which squarely puts before the Tenth Circuit what options are available and proper for this Court
to undertake when there is a treating physician opinion in the record that the ALJ did not and
could not have adequately considered and assessed. Because the Tenth Circuit’s forthcoming
ruling necessarily must shed light on the “procedural mechanism” in this context, the Court
believes a stay of proceedings is warranted. See State Farm Mut. Auto. Ins. Co. v. Allen, 2016
U.S. Dist. LEXIS 71959, *4-5 (staying proceedings sua sponte to await the decision of a Texas
1

Ultimately, the district court remanded the matter, not for consideration of the new information from the treating
doctor, but for an award of benefits. See id. (explaining that although “the Court has some doubt as to whether the
10th Circuit's reasoning in this case authorizes . . . remand . . . for further consideration,” that type of “remand is
unnecessary, as the Court finds that on the current record — including [the doctor’s] opinion — there is no possible
outcome in this case other than the award of benefits”).

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court based “the wide discretion to use the inherent power of the federal court to promote judicial
efficiency”). The Court finds that staying these proceedings is in the interest of judicial economy
and since the matter is already being briefed in the Tenth Circuit, the parties will not be
prejudiced by a modest delay in order to ensure that Ms. Trujillo’s claims are properly reviewed.
IT IS, THEREFORE, ORDERED that this matter is STAYED pending the Tenth
Circuit’s ruling in Vallejo v. Berryhill, No. 17-1452 (10th Cir., filed Dec. 19, 2017).

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by consent

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