Lopez v. Commissioner of Social Security Administration
Filing
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MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on this review, the Court REVERSES AND REMANDS the Commissioner's decision for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 11/15/18. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CLINTON L. LOPEZ,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Case No. 18-344-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
applications for benefits under the Social Security Act. The Commissioner has answered
and filed a transcript of the administrative record (hereinafter TR. ____). The parties have
consented to jurisdiction over this matter by a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES AND
REMANDS the Commissioner’s decision.
I.
PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration (SSA) denied
Plaintiff’s applications for benefits. Following an administrative hearing, an Administrative
Law Judge (ALJ) issued an unfavorable decision. (TR. 15-25). The Appeals Council denied
Plaintiff’s request for review. (TR. 1-6). Thus, the decision of the ALJ became the final
decision of the Commissioner.
II.
THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§§ 404.1520, 416.920. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity from April 10, 2015, the alleged onset date. (TR. 17). At step
two, the ALJ determined that Plaintiff had the following severe impairments: history of
arrhythmias, status post April 2015 episode of cardiac arrest requiring implementation of
a cardiac defibrillator. (TR. 17). The ALJ also determined that Plaintiff had the following
non-severe impairments: affective disorder and anxiety disorder. (TR. 17). At step three,
the ALJ found that Plaintiff’s impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1.
(TR. 20).
At step four, the ALJ found that Plaintiff was not capable of performing his past
relevant work. (TR. 23). The ALJ further concluded that Plaintiff retained the residual
functional capacity (RFC) to perform sedentary work with the following additional
restrictions:
no climbing ladders, ropes, and scaffolds; occasional climbing stairs and
ramps; occasional exposure to wetness and humidity and environmental
irritants such as odors, fumes, dusts, and gases; and no exposure to
hazards such as hazardous moving machinery, raw chemicals or solutions,
and unprotected heights.
(TR. 21). See 20 C.F.R. §§ 404.1567(a), 416.967(a).
With this RFC, the ALJ made additional findings at step five. The ALJ consulted
with a vocational expert (VE) to determine whether there were other jobs in the national
economy that Plaintiff could perform. Given the limitations presented by the ALJ, the VE
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identified three jobs from the Dictionary of Occupational Titles. (TR. 80-81). Relying upon
the testimony of the VE, the ALJ concluded that Plaintiff was not disabled based on his
ability to perform the identified jobs. (TR. 24-25).
III.
ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in (1) failing to properly assess his RFC,
specifically failing to consider functional limitations caused by his non-severe
impairments; and (2) failing to properly evaluate the medical evidence, specifically the
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opinion of neuropsychologist, William Ruwe, Psy.D., Ph.D.; the Veteran’s Administration
disability rating; and limitations imposed by Plaintiff’s treating physicians. (ECF No. 14:48, 8-15). To the extent Plaintiff’s arguments implicate his mental impairments, the Court
agrees. And to the extent Plaintiff’s arguments implicate his physical impairments, the
Court does not reach those arguments as they may be affected by the ALJ’s treatment of
the case on remand. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
IV.
STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
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Though Plaintiff refers to this physician as Dr. Rume, the record indicates that his surname is
Ruwe. See TR. 1342, 1350, 1360.
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the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.
ANALYSIS
A.
RFC
With respect to his mental impairments, Plaintiff argues that the ALJ failed to
consider the effect of his non-severe mental impairments when determining Plaintiff’s
RFC. (ECF No. 14:4-8). The Court agrees. When determining a claimant’s RFC, an ALJ
must “consider the combined effect of all of the [claimant's] impairments without regard
to whether any such impairment, if considered separately, would be of such severity” as
to warrant an award of benefits. 42 U.S.C. § 423(d)(2)(B); see also Wells v. Colvin, 727
F.3d 1061, 1065 (10th Cir. 2013) (explaining that when “assessing [a] claimant's RFC,
the ALJ must consider the combined effect of all of the claimant's medically determinable
impairments, whether severe or not severe”). Here the ALJ failed to do so. At step two
of the sequential evaluation the ALJ found that affective disorder and anxiety disorder
were not severe impairments. (TR. 20). Subsequent to that finding, the ALJ “also” found
that those non-severe impairments “impose mild limitation in understanding,
remembering, or applying information[;] mild limitation in interacting with others[;] mild
limitation in concentrating, persisting, or maintaining pace[;] and mild limitation in
adapting or managing oneself.” (TR. 20). The ALJ did not, however, consider these
limitations, mild though she found them to be, when assessing the RFC. Indeed, neither
the RFC itself nor the ALJ’s discussion of the RFC determination contains any reference
to or mention of Plaintiff’s non-severe impairments or the limitations the ALJ found those
impairments imposed. See TR. 21-23. This is reversible error. See Wells, 727 F.3d at
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1065; McFerran v. Astrue, 437 F. App’x 634, 638 (10th Cir. 2011) (reversing because the
ALJ neglected to discuss non-severe but medically determinable mental impairments as
part of his RFC determination).
B.
Medical Evidence
Plaintiff further argues that the ALJ failed to properly evaluate the opinion of
neuropsychologist Dr. Ruwe. (ECF 14:8-11). The Court agrees. Dr. Ruwe examined
Plaintiff on October 16, 2017. Based on that examination, a thorough review of Plaintiff’s
medical history, and detailed consideration of Plaintiff’s previous psychological testing,
Dr. Ruwe had the following diagnosis:
Unfortunately, [Plaintiff’s] pattern of performance on validity measures
strongly suggests that he was not able to engage optimally in the evaluation
process. At this point, it would be inappropriate to diagnose a specific
Neurocognitive Disorder (NCD). Nevertheless, in light of [Plaintiff’s] report
of ongoing affective distress and the psychological profile obtained during
current testing, which appears to be generally valid, there is evidence of
persistent anxiety and depression. Therefore, his current pattern of
performance is most consistent with the diagnosis of an Anxiety Disorder,
Unspecified, as well as a Depressive Disorder, Unspecified. It remains
possible that he is suffering from affective distress of sufficient severity to
adversely affect cognitive functioning. As the psychological distress is more
effectively ameliorated, it is anticipated that [Plaintiff] will experience
improvement in his cognitive functioning.
(TR. 1360). Additionally, Dr. Ruwe advised, inter alia, that “[m]ore aggressive treatment
of the existing psychological distress is strongly recommended.” (TR. 1358). Dr. Ruwe
also suggested “behavioral strategies to promote more effective cognitive functioning,”
such as taking frequent breaks, allowing extra time to complete tasks, minimizing
distractions in the environment, and other behaviors that could reasonably be expected
to impact Plaintiff’s ability to perform in a competitive workplace. See TR. 1358-59.
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The ALJ gave Dr. Ruwe’s opinion “partial, but not great or considerable weight.”
(TR. 20). The ALJ cites to the “reasons set forth above” in justifying her rejection of Dr.
Ruwe’s opinion, but in reviewing the ALJ’s decision, the Court finds that the ALJ did not
provide legitimate reasons for the rejection. See 20 C.F.R. §§ 404.1527(c), 416.927(c);
Ashcraft v. Berryhill, No. CIV-17-1386-BMJ, 2018 WL 4855215, at *3 (W.D. Okla. Oct. 5,
2018) (“[A]n ALJ is required to properly consider [examining physician’s] opinions and
provide legitimate reasons for discounting them.”). Although not a treating physician, Dr.
Ruwe examined Plaintiff and the ALJ was required to “evaluate,” “consider,” and
“address” Dr. Ruwe’ medical opinion. 20 C.F.R. §§ 404.1527(b), (c), 416.927(b), (c); SSR
96-8p, 1996 WL 374184, at *7 (July 2, 1996). While an examining medical-source opinion
“may be dismissed or discounted,” “the ALJ must provide specific, legitimate reasons” for
doing so. Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (internal quotation marks
omitted); accord Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003).
At step two of the sequential evaluation, the ALJ reviewed Plaintiff’s medical history
from April 2015 to “August/September 2016,” and found that nothing in the record
supported finding that Plaintiff’s psychiatric impairments were severe. See TR. 18-19. As
set forth by the ALJ, however, “[i]n August/September 2016, the claimant reported that
he was experiencing elevated levels of depression and anxiety.” (TR. 19). In evaluating
Plaintiff’s claims of worsening psychiatric problems, the ALJ addressed Dr. Ruwe’s opinion
only as follows:
An October 2016 neuropsychological evaluation yielded some conflicting
results leading the examiner to conclude that there was not sufficient
evidence to support a diagnosis of neurocognitive disorder, but sufficient
evidence to support diagnoses of anxiety disorder unspecified and
depressive disorder unspecified.
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(TR. 19). The ALJ did not address Dr. Ruwe’s contention that Plaintiff was possibly
“suffering from affective distress of sufficient severity to adversely affect cognitive
functioning,” the suggested behavioral modifications, the “strongly recommended” “more
aggressive treatment,” or anything else in Dr. Ruwe’s 14-page report. See TR. 19-20.
Additionally, the ALJ stated that:
Subsequent to August/September 2016, the claimant has persistently been
described as alert, fully oriented, and displaying no apparent distress and
mental status examination within normal limits. Additionally, the claimant
has persistently been rated as experiencing no significant to minor
difficulties meeting personal needs related to accessing care, housing, social
supports, economics, psychological status, and functional status.
(TR. 19). However, the ALJ did not provide record citations to support these statements.
And the Court’s review has found that the record indicates that, in addition to Plaintiff’s
complaints of executive functioning and memory difficulties with secondary anxiety and
irritability, a mental status exam conducted August 18, 2016, by Anna Craycraft, Ph.D.,
noted memory impairments. (TR. 1230). Dr. Craycraft then referred Plaintiff to Dr. Ruwe
for comprehensive neuropsychological evaluation. (TR. 1227-33). The ALJ did not discuss
Dr. Craycraft’s examination and, as set forth above, she only minimally mentioned
portions of Dr. Ruwe’s evaluation.
After a thorough review of the record, the Court finds that the ALJ’s treatment of
the evaluations by Dr. Craycraft and Dr. Ruwe was error requiring reversal and remand
for further administrative proceedings. While an ALJ is not required to discuss each item
of evidence in the record, she may not rely solely on favorable evidence without giving
adequate reasons for discounting evidence upon which she chooses not to rely. Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (“[I]n addition to discussing the evidence
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supporting his decision, the ALJ also must discuss the uncontroverted evidence he
chooses not to rely upon, as well as significantly probative evidence he rejects.”); Hamlin
v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (“The 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.”). Here, the ALJ did not “engag[e] in the proper
legal analysis” and thus, reversal is required. See Hamlin, 365 F.3d at 1219 (10th Cir.
2004).
ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
Based on this review, the Court REVERSES AND REMANDS the Commissioner’s
decision for further administrative development.
ENTERED on November 15, 2018.
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