Chee v. Social Security Administration
Filing
26
MEMORANDUM OPINION AND ORDER granting in part 19 Motion to Reverse and Remand to Agency by Magistrate Judge Carmen E. Garza. (atc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NAOMI RUTH CHEE,
Plaintiff,
v.
No. CV 16-1105 CG
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Naomi Ruth Chee’s Motion to
Reverse and Remand for a Rehearing With Supporting Memorandum (the “Motion”),
(Doc. 19), filed May 9, 2017; Defendant Commissioner Nancy A. Berryhill’s Brief in
Response to Plaintiff’s Motion to Reverse and Remand the Agency’s Administrative
Decision (the “Response”), (Doc. 23), filed August 7, 2017; and Ms. Chee’s Reply in
Support of Plaintiff’s Motion to Reverse and Remand for a Rehearing With Supportive
Memorandum (the “Reply”), (Doc. 24), filed August 23, 2017.
Ms. Chee filed applications for supplemental security income and disability
insurance benefits on November 19, 2012, alleging disability beginning July 25, 2012.
(Administrative Record “AR” 19). Ms. Chee claimed she was limited in her ability to work
due to: seizure disorder, memory loss, broken tail bone, depression, stress, and a
fractured ankle. (AR 249). Ms. Chee’s applications were denied initially on March 29,
2013, and upon reconsideration on September 13, 2013. (AR 19). Ms. Chee requested
a hearing before an Administrative Law Judge (“ALJ”), which was held on May 6, 2015,
before ALJ Frederick Upshall, Jr. (AR 38). At the hearing, Ms. Chee was represented by
Sandra Sandoval, a claimant representative, and Ms. Chee and Nicole King, an
impartial vocational expert (“VE”), testified. (AR 40-77).
On March 21, 2016, ALJ Upshall issued his decision, finding Ms. Chee not
disabled at any time between her alleged disability onset date through the date of the
decision. (AR 31). Ms. Chee requested review by the Appeals Council, (AR 14), which
was denied, (AR 1-5), making the ALJ’s decision the Commissioner’s final decision for
purposes of this appeal.
Through current counsel, Michael D. Armstrong, Ms. Chee now argues that the
ALJ erred by failing to give proper reasons for rejecting portions of the opinions of Mark
Simpson, Psy.D., and by failing to account for all of the moderate limitations in the
opinions of Cathy Simutis, Ph.D., and Paul Cherry, Ph.D. (Doc. 19 at 13-19). In addition,
Ms. Chee argues that the Appeals Council failed to analyze the opinion of Scott Nelson,
M.D. Id. at 20-23. The Court has reviewed the Motion, the Response, the Reply, and the
relevant law. Additionally, the Court has meticulously reviewed the administrative
record. Because the ALJ erred in his consideration and weighing of the opinions of Dr.
Simutis and Dr. Cherry, the Court finds that Plaintiff’s motion should be GRANTED IN
PART.
I.
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. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.
2
1992). If substantial evidence supports the Commissioner’s findings and the correct
legal standards were applied, the Commissioner’s decision stands and the plaintiff is not
entitled to relief. 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). The Commissioner’s “failure to apply the correct legal standards, or
show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d
1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th
Cir. 1994)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for the Commissioner’s. Langley,
373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court’s review is limited to the
Commissioner’s final decision, 42 U.S.C. § 405(g), which is generally the ALJ’s
decision, rather than the Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. 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; Hamlin, 365 F.3d at 1214.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record 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). “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ]’s findings from
3
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)).
II.
Applicable Law and Sequential Evaluation Process
For purposes of supplemental security income and disability insurance benefits,
a claimant establishes a disability when 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) (2015), 42
U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order
to determine whether a claimant is disabled, the Commissioner follows a five-step
sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987);
20 C.F.R. §§ 404.1520, 416.920 (2012).
At the first four steps of the SEP, the claimant bears the burden of showing: (1)
she is not engaged in “substantial gainful activity”; (2) she 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) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(iiv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ
determines the claimant cannot engage in past relevant work, the ALJ will proceed to
step five of the evaluation process. At step five the Commissioner must show the
claimant is able to perform other work in the national economy, considering the
1
20 C.F.R. pt. 404, subpt. P, app. 1.
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claimant’s residual functional capacity (“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.
III.
Background
Ms. Chee applied for supplemental security income and disability insurance
benefits due to: seizure disorder, memory loss, broken tail bone, depression, stress,
and a fractured ankle. (AR 249). At step one, the ALJ determined that Ms. Chee had not
engaged in substantial gainful activity since July 25, 2012, the alleged onset date. (AR
21). At step two, the ALJ concluded that Ms. Chee was severely impaired by: borderline
intellectual functioning, depression, history of opioid dependence, and diabetes mellitus.
(AR 21-23). At step three, the ALJ determined that none of Ms. Chee impairments,
solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 23-24).
At step four, the ALJ found that Ms. Chee has the RFC to perform medium work
as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c). (AR 25). The ALJ found that
Ms. Chee can lift up to 50 pounds occasionally, lift and carry up to 25 pounds
frequently, stand and/or walk for approximately 6 hours in an 8-hour workday, and sit for
approximately 6 hours in an 8-hour workday. The ALJ found no manipulative limitations,
and found that Ms. Chee can occasionally stoop, crouch, kneel, and crawl, but should
never climb ladders, ropes, or scaffolds. He found her ability to push and pull is
unlimited except for the medium lift and carry limitation, and that she must avoid all
exposure to unprotected heights and the use of moving machinery. With regard to
mental impairments, the ALJ found that Ms. Chee is limited to simple, reasoning Level 1
tasks in a work environment free of fast-paced production demands or requirements,
5
and involving only simple, work-related decisions with few, if any, changes in the work
place. Finally, the ALJ found that Ms. Chee is limited to occasional interaction with the
public, incidental to the work being performed, and to occasional interaction with coworkers. Id.
In formulating Ms. Chee’s RFC, the ALJ stated that he considered Ms. Chee’s
symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with objective medical and other evidence, as required by 20 C.F.R. §§
404.1529 and 416.929, and SSRs 96-4p and 96-7p. Id. The ALJ stated that he also
considered opinion evidence in accordance with 20 C.F.R. §§ 404.1527 and 416.927
and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Id.
In considering the medical opinion evidence, the ALJ noted that Ms. Chee
underwent a consultative psychological evaluation in January 2013 by Mark Simpson,
Psy.D. (AR 27). Dr. Simpson diagnosed Ms. Chee with depressive disorder and mild
mental retardation, and assigned her a Global Assessment of Functioning (“GAF”) score
of 48. Id. Dr. Simpson also opined that Ms. Chee has moderate to marked limitations in
her abilities to understand and remember detailed or complex instructions, work without
supervision, attend and concentrate, carry out instructions, and interact with the public
and supervisors, and adapt to changes in the workplace. (AR 28). The ALJ stated that
he gave these opinions “mixed weight.” Id. Specifically, the ALJ gave significant weight
to Dr. Simpson’s opinions concerning Ms. Chee’s ability to understand and remember
short and simple instructions and to interact with others because these opinions are
supported by Dr. Simpson’s examination findings. The ALJ gave little weight to Dr.
Simpson’s opinions regarding Ms. Chee’s ability to adapt, concentrate, and carry out
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instructions, stating that these opinions are unsupported by the evidence in the record.
Id.
In addition, the ALJ considered the opinions of the State Agency physicians. The
ALJ assigned significant weight to the September 13, 2013 opinions of Sterling E.
Moore, M.D., regarding Ms. Chee’s physical limitations, and assigned great weight to
the March 27, 2013 opinions of Cathy Simutis, Ph.D., and to the September 13, 2013
opinions of Paul Cherry, Ph.D., regarding Ms. Chee’s mental limitations. (AR 27-28).
The ALJ further considered the lay statement of two friends of Ms. Chee at AR 257-66
and AR 1010, and found that these statements are not consistent with the medical
evidence, so the ALJ did not afford them significant weight. (AR at 28). Finally, the ALJ
gave little weight to the GAF scores given to Ms. Chee. Id.
The ALJ found that Ms. Chee is unable to perform any of her past relevant work,
so the ALJ proceeded to step five. (AR at 29). At step five, the ALJ noted that Ms. Chee
was 53 years old on the alleged disability onset date, and therefore classified as “an
individual closely approaching advanced age” in accordance with the Regulations. Id.
The ALJ also determined that Ms. Chee has at least a high school education and is able
to communicate in English. Id. The ALJ noted that the VE testified at the hearing that an
individual with Ms. Chee’s same age, education, work experience, and RFC could
perform the jobs of meat trimmer, floor waxer, and laundry worker. (AR at 30). The VE
stated that those jobs existed in significant numbers in the national economy. Id. After
finding the VE’s testimony consistent with the Dictionary of Occupational Titles, the ALJ
adopted her testimony and concluded that, because Ms. Chee is capable of performing
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work existing in significant numbers in the national economy, she is not disabled
pursuant to 20 C.F.R. §§ 404.1520(g) and 416.920(g). (AR 30-31).
IV.
Analysis
Ms. Chee argues that the ALJ erred in considering and weighing the opinions of
Dr. Simpson, Dr. Simutis, and Dr. Cherry. (Doc. 19 at 13-19). Ms. Chee also argues that
the Appeals Council erred by failing to consider the opinion of Scott Nelson, M.D., which
was submitted to the Appeals Council after the ALJ issued his opinion. Id. at 20-23. The
Commissioner responds that the ALJ properly considered the opinions of Dr. Simpson,
Dr. Simutis, and Dr. Cherry. (Doc. 23 at 3-12). The Commissioner further contends that
the Appeals Council did not err in its treatment of Dr. Nelson’s assessment because the
additional evidence did not provide a basis for changing the outcome of the ALJ’s
decision. Id. at 12-14.
Social Security Regulations require ALJs to evaluate every medical opinion in
the record, including the opinions of non-examining State Agency physicians. See 20
C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c); Social Security Ruling (“SSR”) 96-6p, 1996
WL 374180 (July 2, 1996). Every medical source opinion should be weighed by the ALJ
in consideration of the following applicable “deference factors”:
(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 physician's 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 ALJ's
attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citation omitted); see
also 20 C.F.R. §§ 404.1527(c)-(d), 416.927(c)-(d). Ultimately, the ALJ must give good
8
reasons that are “sufficiently specific to [be] clear to any subsequent reviewers” for the
weight that she ultimately assigns the opinions. Langley, 373 F.3d at 1119 (citation
omitted). Failure to do so constitutes legal error. See Kerwin v. Astrue, 244 Fed. Appx.
880, 884 (10th Cir. 2007) (unpublished).
In addition, “[a]n ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability.”
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (citations omitted). Instead, an
ALJ “must . . . explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7
(July 2, 1996). Further, the Commissioner may not rationalize the ALJ’s decision post
hoc, and “[j]udicial review is limited to the reasons stated in the ALJ’s decision.”
Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (citation omitted).
A. The ALJ’s Consideration of Dr. Simpson’s Opinions
Ms. Chee contends that the ALJ’s reasons for rejecting portions of Dr.
Simpson’s opinions are too vague because the ALJ failed to point to specific instances
in the record that dispute Dr. Simpson’s findings. (Doc. 19 at 16). In response, the
Commissioner contends that the ALJ properly supported his decision to reject portions
of Dr. Simpson’s opinion because the ALJ relied on Dr. Simpson’s finding that Ms. Chee
had no difficulty attending or concentrating during his evaluation of her, and because
the ALJ stated that Plaintiff’s activities of daily living show that she has less limitation
than Dr. Simpson found. (Doc. 23 at 6). The Commissioner further contends that the
ALJ supported his decision by noting that Ms. Chee knitted or sewed for four hours a
day, which requires a certain level of concentration, and that Ms. Chee was alert,
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responsive, and cooperative when she was discharged from a hospitalization in June
2012. Id. at 6-7. In addition, the Commissioner notes that various medical records in the
record support the ALJ’s decision because they reflect that Ms. Chee was alert,
oriented, and had intact memory. Id. at 7-8. In her reply, Ms. Chee argues that these are
impermissible post hoc rationalizations. (Doc. 24 at 2-3).
Dr. Simpson examined Ms. Chee in January 2013 and diagnosed her with
depressive disorder and mild mental retardation, and assessed her with a GAF score of
48. (AR 655). Dr. Simpson also found that Ms. Chee has the following limitations:
moderate to marked limitations in her abilities to understand and remember detailed or
complex instructions, work without supervision, and adapt to changes in the workplace;
and moderate limitations in her abilities to carry out instructions, attend and concentrate,
and interact with the public and with supervisors. Id.
The ALJ stated that he gave Dr. Simpson’s opinions “mixed weight.” (AR 28).
The ALJ gave significant weight to Dr. Simpson’s opinions concerning Ms. Chee’s ability
to understand and remember short and simple instructions and to interact with others
because these opinions are supported by Dr. Simpson’s examination findings. Id.
However, the ALJ gave little weight to Dr. Simpson’s opinions regarding Ms. Chee’s
ability to adapt, concentrate, and carry out instructions. Id. In support of this conclusion,
the ALJ stated that these opinions are unsupported by the evidence in the record, and
noted that Dr. Simpson found that Ms. Chee had no difficulty attending or concentrating
during his evaluation, and that Ms. Chee’s activities of daily living indicate she has less
limitation in these areas than Dr. Simpson opined. Id.
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While Ms. Chee contends that the ALJ’s decision lacks the specificity needed for
the Court to meaningfully review his decision, the Court finds that the ALJ, instead,
provided sufficiently specific reasons for his rejection of some of Dr. Simpson’s findings.
The ALJ relied on Dr. Simpson’s own treatment notes and on Ms. Chee’s description of
activities of daily living for his decision to give little weight to Dr. Simpson’s findings
regarding Ms. Chee’s ability to adapt, concentrate, and carry out instructions. For
example, the ALJ noted Ms. Chee’s statement that she engages in knitting and/or
sewing for four hours a day, which the ALJ stated “requires a certain level of
concentration.” (AR 27). In addition, the ALJ noted that the State Agency physicians
found that Ms. Chee is able to understand, remember, and carry out simple instructions,
make simple decisions, attend and concentrate for 2 hours at a time, interact
adequately with coworkers and supervisors, and respond appropriately to changes in a
routine work setting. Id. (citing AR 80-131). Therefore, the Court rejects Ms. Chee’s
contention that the Commissioner improperly provided a post hoc rationale for the ALJ’s
decision, and finds that the ALJ provided a sufficient explanation as to the weight
assigned to Dr. Simpson’s opinions.
B. The ALJ’s Consideration of Dr. Simutis’ and Dr. Cherry’s Opinions
Next, Ms. Chee contends that the ALJ erred by failing to account for all of the
limitations found by non-examining State Agency consultants Dr. Simutis and Dr.
Cherry. (Doc. 19 at 17-19). Specifically, Ms. Chee contends that the ALJ failed to
account for Dr. Simutis’ and Dr. Cherry’s findings that Ms. Chee is limited in her ability
to accept instructions and respond appropriately to criticism from supervisors. Id. at 1819. Ms. Chee argues that the ALJ’s “failure to include the limitation in Ms. Chee’s ability
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to accept instructions and respond appropriately to criticism from supervisors assessed
by Dr. Simutis and Dr. Cherry resulted in an incorrect RFC.” Id. at 19.
In response, the Commissioner states that the findings by Dr. Simutis and Dr.
Cherry that Ms. Chee is moderately limited in her ability to accept instructions and
respond appropriately to criticism from supervisors were made in the Section I
worksheet portion of their assessments, so these conclusions are not part of their formal
opinions. (Doc. 23 at 9-10). Instead, the Commissioner argues that the Section III
narrative conclusion is the actual RFC determination. Id. at 9. Therefore, the
Commissioner contends that the ALJ did not err in according great weight to these
doctors’ opinions because the ALJ’s RFC assessment accounted for the limitations
found by Dr. Simutis and Dr. Cherry in their Section III narrative conclusions. Id. at 10.
In addition, the Commissioner notes that Plaintiff’s representative failed to respond to
the VE’s answers to the ALJ’s questioning at the hearing, that Ms. Chee stated in a
function report that she had never been fired or laid off from a job because of problems
getting along with others, and that “none of the three occupations identified by the [VE],
and relied on by the ALJ at step five, involve a significant amount of taking instructions
or helping others.” Id. at 11. The Commissioner thus concludes that “any alleged
oversight on the ALJ’s part in not expressly finding that Plaintiff was limited in her
interaction with supervisors, as well as the public and co-workers, was harmless
because Plaintiff was not prejudiced.” Id. at 11-12.
In Carver v. Colvin, 600 Fed. Appx. 616 (10th Cir. 2015) (unpublished), the Tenth
Circuit discussed the difference between Sections I and III of the MRFC Assessment. In
considering whether the ALJ erred by failing to incorporate all of the Section I limitations
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in a non-examining State Agency physician’s MRFC Assessment, the Tenth Circuit
explained that Section I “is for recording summary conclusions derived from the
evidence in the file and directs that detailed explanation of the degree of limitation for
each category is to be recorded in Section III.” Id. at 618 (quotations and alterations
omitted). That language is consistent with the Social Security Administration’s Program
Operations Manual System (“POMS”), which “provides that Section III of the MRFC, not
Section I, is for recording a medical consultant’s formal mental RFC assessment, and
that adjudicators are to use the Section III narrative as the RFC assessment.” Id. at 61819 (discussing POMS DI 25020.010 B.1., POMS DI 24510.060 B.4.a., and POMS DI
24510.065 A.). However, the degree and extent of the capacity or limitation found in
Section I must be described in narrative format in Section III, and Section III should
“explain the conclusions indicated in [S]ection I, in terms of the extent to which these
mental capacities or functions could or could not be performed in work settings.” Id. at
619 (quoting POMS DI 24510.060 B.4.a. and B.4.b.). The Tenth Circuit observed that if
a consultant’s “Section III narrative fails to describe the effect that each of the Section I
moderate limitations would have on the claimant's ability, or if it contradicts limitations
marked in Section I, the MRFCA cannot properly be considered part of the substantial
evidence supporting an ALJ’s RFC finding.” Id. (citing Gorringe v. Astrue, 898 F. Supp.
2d 1220, 1224-25 (D. Colo. 2012), and Baysinger v. Astrue, No. 11-cv-00333-WYD,
2012 WL 1044746, at *5-6 (D. Colo. Mar. 28, 2012) (unpublished)).
Applying these principles in Carver, the Tenth Circuit found that the consultant’s
Section III narrative “adequately encapsulated” his Section I finding that the claimant
had a moderate limitation in his ability to accept instructions and respond appropriately
13
to supervisor criticism. Id. In Section III, the consultant opined that the claimant could
“relate to supervisors and peers on a superficial work basis” and in a work scenario
involving only “simple tasks with routine supervision.” Id. The Court determined that
these statements adequately explained the effects of a moderate limitation in the
claimant’s ability to accept instructions and respond appropriately to supervisor
criticism, because “the ALJ sufficiently captured the essence of the Section III functional
limitations by stating that Carver could understand, remember, and carry out simple
instructions in a work-related setting and could interact with co-workers and supervisors,
under routine supervision.” Id. at 619-20. The Tenth Circuit reasoned that interacting
with supervisors in the course of routine supervision over simple work was “tantamount”
to the “superficial” interaction encountered in such jobs, and refused to “parse the ALJ’s
language too finely.” Id. at 620.
In this case, Dr. Simutis and Dr. Cherry conducted MRFC Assessments on
March 27, 2013, and September 13, 2013, respectively. (AR 87-89, 99-101; 113-15;
127-29). In Section I of the MRFC Assessments, they each found that Ms. Chee is
moderately limited in her ability to accept instructions and respond appropriately to
criticism from supervisors. (AR 88; 100; 114; 128). In Section III of their MRFC
Assessments they provided narratives of their findings, stating that Ms. Chee can
understand, remember, and carry out simple instructions; make simple decisions; attend
and concentrate for two hours at a time; interact adequately with co-workers and
supervisors; and respond appropriately to changes in a routine work setting. (AR 89;
101; 115; 129). In the ALJ’s decision, he recited Dr. Simutis’ and Dr. Cherry’s Section III
narratives, and stated that he gave their opinions great weight. (AR 27). The ALJ stated
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that Ms. Chee is additionally limited to occasional interaction with the public, incidental
to the work being performed, and to occasional interaction with coworkers. (AR 27-28).
While Dr. Simutis and Dr. Cherry accounted for most of their Section I findings in
their Section III narratives, their Section III narratives did not address their findings that
Ms. Chee is moderately limited in her ability to accept instructions and respond
appropriately to criticism from supervisors. In Carver, the Tenth Circuit held that the
consultant’s Section III narrative accounted for the Section I moderate limitation in the
claimant’s ability to accept instructions and respond appropriately to supervisor criticism
by opining that the claimant could relate to supervisors “on a superficial work basis” and
in a work scenario involving only “simple tasks with routine supervision.” 600 Fed. Appx.
at 619. In contrast, Dr. Simutis’ and Dr. Cherry’s statements in their Section III
narratives that Ms. Chee can interact “adequately” with supervisors fail to describe the
effects of their Section I findings that Ms. Chee is moderately limited in her ability to
accept instructions and respond appropriately to criticism from supervisors. Neither the
consultants nor the ALJ explain how Ms. Chee can interact “adequately” with
supervisors despite being limited in her ability to accept instructions and respond
appropriately to criticism. Thus, the ALJ erred in relying on the opinions of Dr. Simutis
and Dr. Cherry as substantial evidence supporting his RFC determination. See id.
(holding that if a consultant’s “Section III narrative fails to describe the effect that each
of the Section I moderate limitations would have on the claimant’s ability, or if it
contradicts limitations marked in Section I, the MRFCA cannot properly be considered
part of the substantial evidence supporting an ALJ’s RFC finding”).
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In addition, the ALJ’s RFC determination does not account for Dr. Simutis’ and
Dr. Cherry’s finding of a moderate limitation in Ms. Chee’s ability to accept instructions
and respond appropriately to criticism from supervisors. The ALJ limited Ms. Chee to
simple, Reasoning Level 1 tasks,2 and to occasional interaction with the public and coworkers; however, the ALJ’s RFC determination does not include a limitation to
superficial interactions with supervisors or to routine supervision. (AR 25). The ALJ,
therefore, implicitly rejected Dr. Simutis’ and Dr. Cherry’s findings regarding Ms. Chee’s
limitations in interacting with supervisors, despite stating that he gave great weight to
their opinions, which is legal error. See Carpenter, 537 F.3d at 1265 (finding that the
ALJ inappropriately “‘us[ed] portions of evidence favorable to his position while ignoring
other evidence’”) (citing Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004));
Haga, 482 F.3d at 1208 (explaining that it is well-settled that “[t]he ALJ may not pick and
choose which aspects of an uncontradicted medical opinion to believe, relying on only
those parts favorable to a finding of nondisability”).
The Commissioner relies on Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir.
2016), for her contention that the ALJ did not need to discuss Dr. Simutis’ and Dr.
Cherry’s Section I findings because the ALJ relied on the Section III narrative. (Doc. 23
at 10). In Smith, the Tenth Circuit held the ALJ’s RFC adequately incorporated all of the
claimant’s functional limitations, and the Tenth Circuit did not base its holding on the
fact that the ALJ relied on Section III rather than Section I. 821 F.3d at 1269. Therefore,
the Court finds that this case does not support the Commissioner’s position. Moreover,
2
Reasoning Level 1 is defined in the Dictionary of Occupational Titles as: “Reasoning Level 1 - Apply
common sense understanding to carry out simple one or two-step instructions. Deal with standardized
situations with occasional or no variables in or from these situations encountered on the job.” Dictionary
of Occupational Titles, App. C., 1991 WL 688702.
16
a discrepancy between Sections I and III “does not mean, of course, that the ALJ should
turn a blind eye to any moderate limitations enumerated in Section I that are not
adequately explained in Section III.” Lee v. Colvin, No. 15-6027, 631 Fed. Appx. 538,
541 (10th Cir. 2015) (unpublished).
Finally, the Commissioner contends that the ALJ’s legal error is harmless
because Plaintiff’s representative should have responded to the VE’s answers to the
ALJ’s questioning at the hearing, because Ms. Chee stated that she had never been
fired or laid off from a job because of problems getting along with others, and because
the occupations identified by the VE do not involve a significant amount of taking
instructions or helping others. (Doc. 23 at 11-12). An ALJ’s error may be harmless “in
the right exceptional circumstance, i.e., where, based on material the ALJ did at least
consider (just not properly),” no reasonable factfinder could have decided differently.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). Here, the ALJ’s failure to
account for the moderate limitations found by Dr. Simutis and Dr. Cherry may have
resulted in a less restrictive RFC, and, consequently, in a different outcome for Ms.
Chee. The Court therefore does not consider this case “the right exceptional
circumstance” in which to invoke the harmless error rule. Instead, the Court finds that
the ALJ’s selective application of the opinions of Dr. Simutis and Dr. Cherry without
explanation requires a remand for the ALJ to either incorporate their findings in the RFC
determination, or explain why they are not included.
V.
Conclusion
For the reasons stated above, the Court finds that the ALJ properly considered
the opinions of Dr. Simpson, but did not properly consider the opinions of Dr. Simutis
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and Dr. Cherry. The Court does not decide the issue of whether the Appeals Council
failed to consider the opinion of Dr. Nelson, which was submitted after the ALJ’s
decision, as that opinion will become part of the record on remand. The Court directs
the ALJ, on remand, to weigh all medical opinions in the record.
IT IS THEREFORE ORDERED that Ms. Chee’s Motion to Reverse and Remand
for a Rehearing With Supporting Memorandum, (Doc. 19), is GRANTED IN PART, and
that this case be REMANDED to the Commissioner for further proceedings.
________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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