Summary
In Castillo, the ALJ declined to include any mental limitations in the RFC because he concluded that the claimant's depressive disorder was not severe.
Summary of this case from Hernandez v. Comm'r of Soc. Sec.Opinion
5-20-CV-01471-RBF
2022-04-18
Alicia CASTILLO, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
David Fallon Chermol, Chermol & Fishman, LLC, Philadelphia, PA, for Plaintiff. Michael Jonathan Carey, Social Security Administration, Dallas, TX, for Defendant.
David Fallon Chermol, Chermol & Fishman, LLC, Philadelphia, PA, for Plaintiff.
Michael Jonathan Carey, Social Security Administration, Dallas, TX, for Defendant.
ORDER
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
This Order concerns Plaintiff Alicia Castillo's request for judicial review of the administrative denial of her application for disability-insurance benefits under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This action was assigned for disposition pursuant to the parties’ consent to U.S. Magistrate jurisdiction. See Dkt. Nos. 8, 17, & 18. This Court has jurisdiction to review a final decision of the Social Security Administration. See 42 U.S.C. § 405(g). On March 1, 2022, the Court held a hearing at which Plaintiff Castillo and Defendant, the Commissioner of the Social Security Administration, appeared through counsel of record.
After considering the parties’ briefing, their arguments at the March 1, 2022, hearing, the record of the administrative proceeding, and the applicable authority, the Court will REVERSE the Commissioner's decision and REMAND this matter pursuant to sentence four of 42 U.S.C. § 405(g).
Factual and Procedural Background
This case has a relatively complex procedural history. For present purposes, it is sufficient to discuss only the facts relevant to this appeal, which pertains solely to the ALJ's evaluation of Castillo's mental impairments.
Castillo filed her first application for disability-insurance benefits in January 2016, asserting disability beginning on December 31, 2014. Tr. 426-27. Castillo alleged disability due to diabetes, neuropathy, carpal tunnel syndrome, weight bearing joints, back problems, chronic pain, retinopathy, high cholesterol, and high blood pressure. Id. 313. Castillo's claim was initially denied, id. 312-37; 351-56, and again following her request for reconsideration, id. 329-47; 359-65. Prior to denying her claim, both state agency consultants—relying in large part on an opinion from consultative psychological examiner Dr. McCollum —rated Castillo's affective disorder as severe and concluded that as a result, Castillo could understand, remember and carry out detailed but not complex instructions. Id. 324-25 (Ex. 1A); 343-45 (Ex. 3A).
See id. 1115-1119.
After a hearing, the Administrative Law Judge (ALJ) denied Castillo's application. Id. 125-36. The Appeals Council subsequently denied Castillo's request for review, id. 7-13, prompting Castillo to seek judicial review. See Castillo v. Comm'r of Social Security , No. 5-19-cv-268-XR-HJB (W.D. Tex. filed Mar. 18, 2019). On October 9, 2019, the District Court remanded the case to a different ALJ in line with the Agency's unopposed request. See id. , Dkt. Nos. 12 & 13.
On remand, the Appeals Council, by order dated February 12, 2020, directed the new ALJ to properly evaluate the opinions from the state agency medical consultants and reformulate a residual functional capacity in light of those opinions and evidence of Castillo's severe visual non-exertional impairments. Tr. 2559-61. The Appeals Council also consolidated Castillo's second application for disability-insurance benefits which she filed on March 12, 2019—one week before seeking judicial review on her first application. See id. But before the consolidation and remand by the District Court, the Agency—in evaluating Castillo's second application—retained Dr. Russel L. Thompson to conduct a psychological evaluation. Id. 3289-92. After examining Castillo, Dr. Thompson concluded that her memory, concentration, abstract thinking, everyday judgment and insight appeared limited. Id. 3289-3292. At the same time, Dr. Thompson noted that Castillo wasn't cooperative during the mental status exam, id. 3290, and, further, that "[t]here were inconsistencies in performance on the mental status exam that raise[d] questions about the validity of presented cognitive deficits, id. 3292. Based in large part on Dr. Thompson's opinion, the Agency determined that Castillo is able to:
understand, remember and carry out simple work tasks but would have difficulty w[ith] detailed and complex tasks. She is able to interact with coworkers, supervisors and the general public. She is able to adapt to routine changes in normal work setting.
Id. 2553. The combination of the aforementioned mental limitations with Castillo's light residual functional capacity, advanced age, and education led the Agency to conclude, on January 21, 2020, that Castillo was disabled as of May 1, 2019, pursuant to Rule 202.06 of the Medical-Vocational Guidelines. Id. 2555. But given that Castillo's first application for benefits was on remand before the Appeals Council, the Agency concluded that it was "unable to process" Castillo's second application and closed the case with "no determination." Id. Accordingly, all parties agree that the Agency's January 21, 2020, disability conclusion wasn't binding on the Commissioner.
Pursuant to the Appeals Council's Remand Order, Castillo and her attorney attended a hearing before a new ALJ on August 21, 2020, at which Castillo and the vocational expert testified. Id. 2458-69. The ALJ denied Castillo's consolidated claim for disability benefits. Id. 2425-36. In his analysis, the ALJ first found that Castillo met the insured-status requirements of the Social Security Act. Id. 2428. Moving to the sequential analysis, the ALJ found that Castillo hadn't engaged in substantial gainful activity since the alleged disability onset date of December 31, 2014, through her March 31, 2020, date of last insured. Id. At step two, the ALJ found Castillo has severe impairments of obesity, cervical disc disease, mild lumbar spine neural foraminal narrowing, diabetes with neuropathy and retinopathy (sable), left eye cataract (stable), and right eye blindness. Id.
The ALJ, however, concluded that Castillo's medically determinable mental impairment of depression wasn't severe because it "does not cause more than minimal limitation in [Castillo's] ability to perform basic mental work activities." Id. In reaching this conclusion, the ALJ determined that Castillo was only mildly limited in each of the four broad functional areas of understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace, and adapting or managing oneself. Id. 2428-29. In doing so, the ALJ recognized that Castillo's memory and concentration appeared limited during her consultative examination with Dr. Thompson, but the ALJ was "trouble[ed]" by Castillo's refusal to perform parts of the examination and questioned the accuracy of several of Castillo's self-reports. Id. The ALJ further noted the inconsistencies in Castillo's performance on the exam, Castillo's lack of mental-health treatment records, and the fact that Castillo wasn't taking medication to address the issue. Id. And, although the ALJ "t[ook] notice" that the state agency consultants assessed Castillo with an affective disorder, he ultimately provided "little weight" to those opinions, concluding that the opinions were inconsistent with subsequently added medical evidence, the record as a whole, and Castillo's testimony. Id. 2430. Finally, the ALJ purported to provide "great weight" to the opinion of psychological consultant Dr. McCollum that Castillo is able to perform the activities of daily living and handle stressful situations. Id. But in doing so, the ALJ overlooked several of Dr. McCollum's more restrictive findings. For instance, Dr. Thompson observed that Castillo's recall abilities were only fair because she could only recall two out of three words following a five-minute delay. Tr. 1118. The ALJ also seemingly disregarded Dr. McCollum's "fair" assessments of Castillo's insight and judgment, ability to think abstractly, and general knowledge. Id.
See also 20 C.F.R. § 404.1520a(d)(1) ("If we rate the degrees of your limitation as ‘none’ or ‘mild,’ we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities.")
For instance, Castillo's assertion that she couldn't spell the word "world" or count to 10, in the ALJ's view, appeared inconsistent with Castillo's high education level and past relevant work. Id.
At step three, the ALJ found that none of Castillo's impairments met or medically equaled the impairments of one of the listed impairments in the applicable Social Security regulations. Id. 2430-31. Before reaching step four of the analysis, the ALJ found that Castillo has a physical residual functional capacity to perform the following modified range of light work as defined by 20 C.F.R. § 404.1567(b) :
lifting/carrying 20 pounds occasionally and 10 pounds frequently, standing/walking and sitting 6 hours each in an 8-hour workday; occasionally stoop, crouch, crawl, and kneel; no work at unprotected heights or around hazards; no climbing of ropes, ladders, or scaffolds; no work requiring driving; occasionally overhead reach bilaterally; needs to avoid work around vibrations or extreme heat; no very small print (a vision, limitation-magazines and newspapers print is permissible); and can frequently handle, finger, feel, and reaching in all directions, other than overhead reaching
Id. The ALJ did not assess Castillo with any mental functional limitations. In declining to do so, the ALJ devoted only two sentences to Castillo's depression, explaining that:
Little weight was given to the opinion of the State Agency medical consultant at Exhibit 3A [on Reconsideration] assessing the claimant to have a severe depressive disorder. The record does not establish that [Castillo] has more than mild limitations in her mental functioning, consistent with her essentially normal mental status findings on consultative examination.
Id. 2435 (citing Ex. 8F, opinion from psychological consultant Dr. McCollum at Tr. 1115-19).
At step four after considering the residual functional capacity and the testimony of the vocational expert, the ALJ determined that Castillo was able to perform her past relevant work as a permit clerk (DOT #205.367-034), city planning aid (DOT #199.354.010), and receptionist (DOT #237.367)—all positions that range from semiskilled to skilled at reasoning levels 3 and 4. Id. 2435-36. The ALJ didn't make an alternative step-five finding. See id. Accordingly, the ALJ determined that Castillo was not disabled for purposes of the Act and therefore was not entitled to receive benefits. Id.
The Appeals Council denied Castillo's subsequent request for review of the ALJ's finding. Id. 2422-24. Accordingly, on December 29, 2020, after exhausting all available administrative remedies, Castillo again filed for judicial review. Dkt. No. 1.
Analysis
Castillo raises two intertwined points of error regarding the ALJ's assessment of her mental impairments. First, Castillo claims the ALJ reversibly erred by categorizing her depression as not severe even though every medical opinion of record assessed Castillo with moderate limitations in concentration, persistence, and pace. Second, Castillo urges that the ALJ reversibly erred in failing to include any mental limitations in the residual-functional-capacity assessment, notwithstanding that the ALJ concluded Castillo was mildly limited in each of the four broad functional areas.
Castillo withdrew from consideration her third point of alleged error—whether the ALJ's decision was constitutionally defective because he derived his authority from Commissioner Saul whose appointment violated the separation of powers. See Dkt. No. 21.
As an initial matter, the Court is troubled by the ALJ's failure to address many of Dr. McCollum's other more restrictive findings that the state agency consultants relied upon in formulating their mental-residual-functional-capacity assessments, all while purporting to provide great weight to the opinion. An ALJ is of course entitled to determine the credibility of medical experts and to weigh their opinions accordingly. See Moore v. Sullivan , 919 F.2d 901, 905 (5th Cir. 1990). But in doing so, an "ALJ must consider all the record evidence and cannot ‘pick and choose’ only the evidence that supports [his] position." Loza v. Apfel , 219 F.3d 378, 393 (5th Cir. 2000).
For example, Dr. McCollum's finding that Castillo's insight and judgment, ability to think abstractly, and general knowledge is only "fair," suggests that she may have been moderately limited in understanding, remembering, and applying information.
Ultimately, however, the Court need not reach Castillo's first point of alleged error. Where—as is the case here—the ALJ proceeded past step two, the case turns on whether Castillo's mental impairments limited her in performing her past relevant work. Nor need the Court address whether the ALJ properly rejected the medical opinions of record regarding Castillo's mental functioning. The record reflects that the ALJ relied on the alleged non-severity of Castillo's depression as a basis not to impose any mental limitations in his residual-functional-capacity assessment. This was legal error. Under these circumstances the error wasn't harmless, and remand is therefore required.
See Adams v. Bowen , 833 F.2d 509, 512 (5th Cir. 1987) (ALJ's failure to make a severity finding at step two wasn't a basis for remand where ALJ proceeded to later steps of the analysis).
A. The ALJ Erred by Failing to Consider Castillo's Depression in Formulating His Residual-Functional-Capacity Assessment.
"The well-settled rule in this Circuit is that in making a determination as to disability, the ALJ must analyze both the disabling effect of each of the claimant's ailments and the combined effects of all of these impairments." Fraga v. Bowen , 810 F.2d 1296, 1305 (5th Cir. 1987) (citation and quotation marks omitted). Thus, even where—as is the case here—an ALJ finds that a claimant's medically determinable mental impairment isn't severe, the ALJ must still consider its impact when assessing the claimant's residual functional capacity. See 20 C.F.R. § 404.1545(a)(2) ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe,’ ... when we assess your residual functional capacity."). "This is because even non-severe limitations may combine with other severe impairments to prevent an individual from doing past relevant work or narrow the range of work that the individual can perform." Id. (quotations omitted); see also SSR 96-8P, 1996 WL 374184. Accordingly, under certain circumstances, "[w]hile a ‘not severe’ impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim." SSR 96-8P.
Here, the ALJ declined to include any mental functional limitations in his residual-functional-capacity analysis largely because, in his opinion, Castillo's depressive disorder wasn't severe. See Tr. 2435. But the ALJ's non-severity finding didn't excuse him from considering the impact of Castillo's depression in assessing her mental residual functional capacity. Indeed, the ALJ's residual-functional-capacity analysis—which purports to be a more detailed analysis than the paragraph B determination at steps 2 and 3—acknowledges that Castillo was at least mildly limited in her mental functioning. See Tr. 2429, 2435. Yet absent from the ALJ's opinion is an explanation for why these mental limitations shouldn't be reflected in Castillo's residual functional capacity. Accordingly, the ALJ failed to properly evaluate Castillo's mental limitations in formulating his residual-functional-capacity determination.
The Commissioner's argument that under Fifth Circuit precedent an ALJ doesn't err by failing to incorporate a claimant's mild mental limitations when formulating a residual-functional-capacity assessment doesn't mandate a different result. The error here is not the ALJ's failure to include mental limitations in the residual-functional-capacity assessment. Rather, the error is the failure to consider whether mental functional limitations were warranted. In Garcia v. Berryhill , the ALJ considered all of the claimant's impairments—severe and non-severe—in determining at step four that the claimant retained the ability to perform his past relevant work. No. 7:16-CV-119, 2017 WL 920750, at *11 (S.D. Tex. Jan. 18, 2017), report and recommendation adopted , 2017 WL 896847 (S.D. Tex. Mar. 7, 2017), aff'd sub nom. 880 F.3d 700 (5th Cir. 2018). Accordingly, district courts in this circuit have found no legal error where an ALJ declines to include mental limitations in a residual-functional-capacity analysis "so long as the ALJ considered the limiting effects and restrictions of all impairments in the RFC analysis, even those impairments that are non-severe." Martha L. v. Saul , No. 1:20-CV-00003-H-BU, 2021 WL 3610316, at *5 (N.D. Tex. July 27, 2021) (collecting authorities). Such an analysis is missing here. Despite concluding that Castillo had mild mental limitations in all four mental domains at Step 2 and then later finding that Castillo was no "more than mild[ly] limit[ed] in her mental functioning," Tr. 2435, the ALJ failed to explain why he omitted any mental limitations from the residual-functional-capacity formulation.
B. The ALJ's Error Wasn't Harmless Under These Circumstances.
Notwithstanding this legal error, remand is only warranted if the ALJ's error is harmful. Mays v. Bowen , 837 F.2d 1362, 1364 (5th Cir. 1988). Here, the ALJ's premised his denial of benefits on a finding that Castillo could perform her past relevant work—all of which ranged from semi-skilled to skilled. The ALJ didn't perform an alternative step 5 finding. Given the skill level involved here, even the inclusion of mild mental functional limitations in Castillo's residual functional capacity could've precluded Castillo from performing her past relevant work. Although the Commissioner urges that the ALJ's opinion "shows that, despite finding mild limitations in the four mental functional areas, the ALJ did not believe [Castillo's] alleged impairments caused any meaningful functional limitations," Dkt. No. 13 at 1 (emphasis added), the Court can't draw this inference. "The ALJ has a responsibility to adequately explain his reasoning in making the findings on which his ultimate decision rests, and in doing so must address all pertinent evidence. The Court's inability to clearly determine whether the ALJ adequately considered certain limitations or not constitutes reversible error." Gonzales v. Berryhill , No. 3:16-CV-1830-BN, 2017 WL 3492215, at *6 (N.D. Tex. Aug. 15, 2017) (ALJ reversibly erred in failing to discuss any mental limitations the claimant might face due to his diagnosed acute anxiety disorder in formulating his residual-functional-capacity assessment) (quotations and citations omitted). Regardless, even a slight mental limitation—combined with Castillo's physical impairments—could affect her ability to perform her past relevant work. See SSR 96-8P.
Compare Hovi v. Colvin , No. 12-C-169, 2013 WL 3989232, at *16 (W.D. Wis. Aug. 2, 2013) (inclusion of even mild limitations in concentration, persistence, and pace in a residual-functional-capacity assessment "is particularly important when the ALJ considers the claimant's ability to perform past semi-skilled or skilled work, as even mild limitations may preclude such work") with Ross v. Colvin , No. 4:12-CV-283-Y, 2013 WL 5423980, at *8 (N.D. Tex. Sept. 27, 2013) ("[E]ven assuming that Ross faced moderate to marked limitation in attention, concentration, persistence, and pace that should have been reflected in the RFC, this limitation would not preclude her from performing the "simple" requirements of her previous work as a housekeeping cleaner.").
In other words, "[t]he impact [of the ALJ's error here] may be de minimus, or only require minor modifications of [Castillo's] [residual functional capacity] with the end result being that [Castillo] is still capable of performing [her past relevant work]. The Court and [Castillo] however, are left to guess if that would truly be the result." Curry v. Comm'r of Soc. Sec. , No. 1:15-CV-07515-NLH, 2017 WL 825196, at *5 (D.N.J. Mar. 2, 2017) (ALJ reversibly erred in failing to evaluate whether plaintiff's mild and moderate mental impairments impacted her overall residual functional capacity). Accordingly, without a proper analysis of Castillo's mental functional limitations and incorporation of those limitations, as appropriate, into a hypothetical for the vocational expert, remand is required on this record. See Keel v. Saul , 986 F.3d 551, 556 (5th Cir. 2021) ("Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached even if the ALJ did not err.").
See also Laura Anne H. v. Saul , No. 6:20-CV-397 (TWD), 2021 WL 4440345 at *10 (N.D.N.Y. Sept. 28, 2021) (rejecting argument that ALJ's failure to discuss nonsevere mental impairments in his residual-functional-capacity analysis was harmless, reasoning that "the ALJ did not find [p]laintiff's mental related limitations to be non-existent or de minimis , such that any error resulting from his failure to address them in his RFC analysis would be harmless"; rather the ALJ determined at step two that plaintiff had mild limitations in two of the four functional areas and yet didn't address those mild limitations when formulating his residual-functional-capacity assessment).
See also Tusken v. Astrue , No. 4:08-CV-657-A, 2010 WL 2891076, at *12 (N.D. Tex. May 25, 2010), report and recommendation adopted , 2010 WL 2891075 (N.D. Tex. Jul. 20, 2010) (ALJ reversibly erred in finding plaintiff could perform semi-skilled other work as a receptionist where the ALJ concluded that plaintiff had "mild" limitations in both social functioning and in "concentration, persistence, and pace," but failed to include any such limitation in the residual-functional-capacity assessment or in the hypothetical posed to the vocational expert).
C. Remand Is Appropriate.
For all these reasons, remand is appropriate. In the interest of judicial efficiency, the remand shall be broad enough to account for all of Castillo's alleged points of error. Specifically, the ALJ is directed to fully consider all medical opinions of record to determine whether Castillo has a mental impairment that is "severe" within the meaning of the Social Security Act, as interpreted by the Fifth Circuit in Stone v. Heckler , 752 F.2d 1099, 1101 (5th Cir. 1985). The ALJ should then continue with the remaining steps of the sequential evaluation process and reevaluate all the medical evidence to determine whether, and to what extent, a mental residual-functional-capacity assessment is appropriate. If necessary, the ALJ should hold another hearing and obtain new vocational expert testimony.
See SSR 96-8P ("The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF [psychiatric review technique form].").
Conclusion
For the reasons discussed above, the Commissioner's decision that Castillo isn't disabled is REVERSED and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration consistent with this opinion.