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Aman v. Berryhill

United States District Court, D. Utah, Central Division

September 28, 2017

BECKY AMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.

          MEMORANDUM DECISION AND ORDER REVERSING AND REMANDING THE DECISION OF THE COMMISSIONER

          Brooke C. Wells United States Magistrate Judge

         Magistrate Judge Brooke Wells Plaintiff Becky Aman (“Plaintiff') seeks judicial review[2] of the decision of the Commissioner of Social Security denying Plaintiff's application for disability insurance benefits under Title II of the Social Security Act[3] and supplemental security income under Title XVI.[4]After careful consideration of the record and the briefs filed by counsel, the Court has determined that oral argument is unnecessary and decides this case based on the record before it. For the reasons, set forth below, the Court REVERSES and REMANDS the decision of the Administrative Law Judge (“ALJ”).

         BACKGROUND[5]

         On June 2, 2011, Plaintiff filed her applications for disability insurance benefits and supplemental security income alleging a disability onset date of February 5, 2007. Her application was denied and her first hearing was held before the ALJ on November 9, 2012. The ALJ rendered an unfavorable decision finding Plaintiff not disabled within the meaning of the Act.[6] Plaintiff requested review by the Appeals Council, and her request was granted on April 14, 2014.[7] The Appeals Council remanded to the ALJ. On November 13, 2014, the ALJ conducted a second hearing based on the Appeals Council's remand. On February 27, 2015, the ALJ rendered an unfavorable decision finding Plaintiff not disabled within the meaning of the Act.[8] Plaintiff again requested review by the Appeals Council and her request was denied on August 12, 2016, [9] making the ALJ's decision final for purposes of review.[10]

         The ALJ determined that Plaintiff had severe impairments of bipolar disorder; generalized anxiety disorder; post-traumatic stress disorder (“PTSD”); borderline intellectual functioning (“BIF”); trochanteric bursitis; and asthma.[11] With regard to claimed mental impairments the ALJ found that Plaintiff has moderate restriction in her activities of daily living, moderate difficulties in social functioning, moderate difficulties with regard to concentration, persistence or pace, and has experienced one to two episodes of decompensation of extended duration.[12] The ALJ determined that Plaintiff did not meet or equal a Listing and that Plaintiff had the RFC to perform light work that is simple and routine, with additional limitations.[13]Plaintiff is unable to perform her past relevant work.[14] Finally, the ALJ concluded that Plaintiff could perform light work as a cleaner and polisher, a gluer, and a small products assembler-all of which have jobs in the national economy.[15] Thus, the ALJ found Plaintiff non-disabled.

         STANDARD OF REVIEW

         The Court reviews “the ALJ's decision only to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence in the record.”[16] “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'”[17] “It requires more than a scintilla, but less than a preponderance.”[18]

         Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not required to discuss all the evidence.[19] “In addition to discussing the evidence 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.”[20] In reviewing the ALJ's decision the Court evaluates the record as a whole, including that evidence before the ALJ that detracts from the weight of the ALJ's decision.[21] The Court, however, may neither “reweigh the evidence [n]or substitute [its] judgment for the [ALJ's].”[22] Where the evidence as a whole can support either the agency's decision or an award of benefits, the agency's decision must be affirmed.[23] Further, the Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the Court would justifiably have made a different choice had the matter been before it de novo.'”[24]

         ISSUES

         In this appeal Plaintiff argues the ALJ erred in:

(1) failing to consider all Listings, particularly 12.05;
(2) failing to include in the hypothetical the moderate limitations on concentration, persistence and pace;
(3) failing to comply with 20 C.F.R. § 404.[1]527(d) in discussing medical opinions and limitations, and misstating Dr. Kotter's opinion;
(4) failing to provide a sit-stand option and citing to the record for his RFC assessment;
(5) failing to follow SSR 96-7p and 82-59 regarding Plaintiff's compliance;
(6) failing to comply with SSR 00-4p by not asking the vocation expert (“VE”) if her testimony was consistent with the DOT;
(7) his analysis of activities of daily living; and
(8) failing to consider the side effects of medication.

         DISCUSSION

         I. The ALJ Did Not Err in Finding Plaintiff Did Not Meet the Mental Impairment Listings.

         “At step three, the undersigned must determine whether the [Plaintiff's] impairment or combination of impairments is of a severity to meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.”[25] Plaintiff “has the ‘step three burden to present evidence establishing her impairments meet or equal the listed impairments.”[26]To satisfy this burden, Plaintiff's impairment must satisfy “the diagnostic description in the introductory paragraph and any one of the four sets of criteria.”[27]

         Here, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. In considering Plaintiff's mental impairments, the ALJ determined that Plaintiff did not meet the criteria of listings at 12.04, 12.05 and 12.06.[28]Plaintiff argues that the ALJ erred by not considering the capsule definition in 12.05 and by failing to follow POMS DI 24515.056(D)(1)(c).[29]

         This Court finds that the ALJ did not err in his determination that Plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. The substantial evidence in the record supports this conclusion. The record does not support a finding that the Plaintiff meets the capsule definition of Listing 12.05, “which requires evidence ‘that a claimant exhibits subaverage general intellectual functioning before the age of twenty-two.'”[30] Given that Plaintiff obtained her GED, [31] has a steady work history as an electrician which is considered a skilled position, [32] took and passed a written electrician's exam (on her third try), [33] the ALJ understandably did not find Plaintiff meets this Listing.[34] Further, the ALJ found that Plaintiff did not meet the 12.05(A), (B), (C), or (D) criteria[35] with a WAIS verbal score of 72 and a FSIQ score of 76.

         Since POMS DI 24515.056(D)(1)(c) “is only used when ‘the capsule definition of that impairment is satisfied, '”[36] it is not applicable here as Plaintiff does not meet the capsule definition. Thus, the ALJ did not err in his determination that Plaintiff did not meet a Listing.

         II. The ALJ Properly Considered Plaintiff's Moderate Limitations on Concentration, Persistence and Pace in the Hypothetical

         First, Plaintiff contends that the ALJ erred in failing to discuss and incorporate his findings of moderate mental impairments in concentration, persistence and pace in the hypothetical to the Vocation Expert (“VE”). The Tenth Circuit has stated “[t]estimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the [Commissioner's] decision.”[37] The Tenth Circuit has held that, “where the record supported some limitation on particular functions, ‘the ALJ's failure to include in his hypothetical inquiry to the vocational expert any limitation in this regard violated the established rule that such inquiries must include all (and only) those impairments borne out by the evidentiary record.'”[38]

         Here the ALJ's RFC included the following limitations related to Plaintiff's concentration, persistence and pace:

She is limited in understanding[, ] remembering and carrying out instructions to performing simple, routine work. She is also limited in using judgment in decision-making to those decisions found in simple, routine work. She can have occasional job contact with co-workers, supervisors and the public. She requires stable work, with few changes in routine.[39]

         Later in the ALJ's decision he presents the following hypothetical to the VE “whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and [RFC].”[40] Here, the ALJ tailored the RFC assessment with additional limitations to account for Plaintiff's limitations in concentration, persistence and pace which are supported by medical opinions cited in the decision. The hypothetical presented included the RFC which included Plaintiff's limitations in concentration, persistence and pace. Accordingly, the ALJ did not err as Plaintiff's limitations in concentration, persistence and pace were properly considered in the hypothetical presented to the VE.

         III. The ALJ Failed to Comply with 20 C.F.R. § 404.1527 in Discussing Medical Opinions

         Plaintiff argues that the ALJ failed to weigh medical opinions using the factors outlined in 20 C.F.R. § 404.1527. The ALJ's decision “must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.”[41] “Although the ALJ's decision need not include an explicit discussion of each factor, the record must reflect that the ALJ considered every factor in the weight calculation.”[42] In determining whether to give a medical opinion controlling weight an ALJ “must first considered whether the opinion is ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques.'” If the medical opinion is not given controlling weight, the ALJ still needs to consider the following factors:

(1) the length of the treatment relationship and 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.[43]

         After considering these factors, “the ALJ must ‘give good reasons in [the] . . . decision' for the weight he ultimately assigns the opinion.”[44] Further, the ALJ “is required to evaluate a medical opinion for a non-treating physician using the same factors applicable to treating physician opinions.”[45]

         Here, the ALJ failed to articulate any reasons based on the above-factors for the weight assigned to the medical opinions considered. The only reasons cited in the record are merely that the ALJ's findings disagreed with the medical opinions, but there are no references to whether or not he found those opinions to be medically supported and if he considered any of the other factors listed in § 404.1527. The ALJ appears to have substituted his own judgment for those opinions of medical experts. Accordingly, the Court will REMAND to the ALJ for proper weighing and consideration of the factors set-forth above.

         IV. The ALJ's RFC assessment is Not Fully Supported by the Record

         Plaintiff claims that the ALJ failed to provide citations for the physical RFC assessment. In reviewing the RFC provided by the ALJ, this Court finds that the RFC is not fully supported by the record. With regard to physical ...


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