Quintero v. Astrue

Filing 18

ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE'S DECISION, by Judge William J. Martinez on 8/2/2013. (wjmcd, ) (Main Document 18 replaced on 8/2/2013) (wjmcd, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-1849-WJM
CYNTHIA QUINTERO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE’S DECISION

This social security benefits appeal is before the Court under 42 U.S.C. § 405(g).
Plaintiff Cynthia Quintero (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
insurance benefits and supplemental security income. The denial was affirmed by an
Administrative Law Judge (“ALJ”), who ruled Plaintiff was not disabled within the
meaning of the Social Security Act (“Act”). This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Plaintiff’s application
for Social Security disability benefits and supplemental security income is AFFIRMED.
I. BACKGROUND
Plaintiff was born on October 24, 1963, and was 45 years old on the alleged
disability onset date. (Admin. Record (“R.”) (ECF No. 9) at 16.) Plaintiff has at least a
high school education and has past relevant work experience as a cashier, waitress,

and motel manager. (R. at 15-16.)
Plaintiff filed an application for a period of disability and disability insurance
benefits and for supplemental security income on March 12, 2009, alleging that she had
been disabled since February 7, 2009 due to several physical impairments1 as well as
depression. (R. at 10.) Plaintiff’s application was initially denied on May 28, 2009. (R.
at 8.) After timely requesting a hearing on June 24, 2009, Plaintiff’s claims were heard
by ALJ Kathryn D. Burgchardt in a video hearing on November 4, 2010. (Id.) Plaintiff
and vocational expert Nora W. Dunne testified at the administrative hearing. (Id.)
Medical evidence and opinions on Plaintiff’s mental impairment were provided by
examining psychologists Jose Vega, Ph.D., and Brett Valette, Ph.D., and non-examining
state agency psychologist MaryAnn Wharry, Psy.D. (R. at 15, 430.)
On February 10, 2011, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process.2 At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since February 7, 2009, the
alleged onset date. (R. at 10.) At step two, she found that Plaintiff suffered from
multiple severe impairments, including depression. (Id.) At step three, the ALJ found

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As Plaintiff has not challenged the ALJ’s findings and conclusions with regard to
Plaintiff’s physical impairments, the Court will discuss only those facts relevant to Plaintiff’s
mental impairment, the issue before it in this appeal. (See ECF No. 12 at 6.)
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The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
his past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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that Plaintiff’s depression, while a severe impairment, did not meet or equal any of the
impairments or combination of impairments listed in the social security regulations. (R.
at 11.) The ALJ assessed Plaintiff’s residual functional capacity (“RFC”), finding that
she had the physical RFC to perform “light” work as defined by the regulations, except
that she would be limited in numerous physical tasks. (R. at 12.) The ALJ found that
with regard to Plaintiff’s mental RFC, she would also be limited to “simple, unskilled
work” with a specific vocational preparation of one or two; should not work in close
proximity to coworkers, meaning that she could not function as a member of a team;
and should have minimal direct contact with the public. (Id.) Given this RFC, at step
four, the ALJ found that Plaintiff could not perform her past relevant work as a cashier,
waitress, or motel manager. (R. at 15.) However, at step five, the ALJ found that
Plaintiff was capable of performing other work in the national economy, including work
as a retail marker, parking lot signaler, and vending machine operator. (R. at 16-17.)
Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of the Act
and therefore was not entitled to benefits. (R. at 17.)
The Appeals Council denied Plaintiff’s request for review on May 21, 2012. (R.
at 1-3.) Thus, the ALJ’s February 10, 2011 decision is the final administrative action for
purposes of review.
II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
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Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Evidence is not
substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart,
399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision,
the Court may neither reweigh the evidence nor substitute its judgment for that of the
agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, if
the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a
lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993).
III. ANALYSIS
On appeal, Plaintiff challenges the ALJ’s evaluation of the medical opinions in the
formulation of her mental RFC, contending that the ALJ failed to consider and properly
weigh the opinions of Dr. Vega, Dr. Valette, and Dr. Wharry. (ECF No. 12 at 6.)
An ALJ’s weighing of a medical opinion depends upon numerous factors. The
opinion of a treating physician is generally entitled to controlling weight as long as it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques,”
and “consistent with other substantial evidence in the record.” Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003) (citing 20 C.F.R. §§ 404.1527, 416.927). If a medical
opinion does not merit controlling weight, the ALJ must determine what weight the
opinion deserves by considering six factors, including the length, nature, and extent of
the treatment relationship, the physician’s specialization, and the consistency between
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the physician’s opinion and the record as a whole. Id. at 1301. The ALJ need not
explicitly discuss each individual factor, as not every factor will apply in every case. See
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). However, the ALJ must
consider all the medical opinions in the record when formulating the RFC. 20 C.F.R. §
404.1527(c).
Plaintiff makes three arguments that the ALJ erred in considering Plaintiff’s
mental impairment: (1) the ALJ failed to provide proper reasons for discounting Dr.
Vega’s opinion, and failed to explain why Dr. Vega’s restrictions were not incorporated
into the mental RFC; (2) the ALJ failed to explain why Dr. Valette’s opinion was given
great weight; and (3) the ALJ failed to discuss Dr. Wharry’s opinion, despite the fact that
the RFC’s similarity to the opinion suggests the ALJ gave it great weight. (ECF No. 12
at 10-19.) The Court will discuss each argument in turn.
A.

Dr. Vega
With regard to Dr. Vega, Plaintiff first argues that the ALJ’s stated reasons for

discounting parts of Dr. Vega’s opinion were improper, and that the ALJ’s decision to
reduce the weight given to his opinion was not supported by substantial evidence.
(ECF No. 12 at 12-15.) Although Plaintiff concedes that it was appropriate for the ALJ
to reject Dr. Vega’s “Med-9” forms, which were prepared for a Colorado state disability
benefits determination, Plaintiff argues that the ALJ had no valid reason for giving little
weight to his RFC assessment. (Id. at 12-13.)
The ALJ correctly stated that the weight she gave to Dr. Vega’s opinion was not
controlling, as he was not a treating source. (R. at 15.) However, the ALJ then stated
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that the documents comprising Dr. Vega’s opinions “were prepared at the behest of
claimant’s counsel in anticipation of this hearing, which also supported the finding that
these assessments were entitled to little, if any, weight”. (R. at 15.) Finally, the ALJ
stated that “to the extent that Dr. Vega’s assessment was consistent with that of the
independent consultative examiner [Dr. Valette], his assessment was given great
weight.” (Id.)
The Court agrees with Plaintiff that it is inappropriate for an ALJ to discount a
medical opinion solely because it was prepared at the request of Plaintiff’s counsel and
in anticipation of litigation. An ALJ may properly discount an opinion because, e.g., it is
unsupported by medical findings and tests, it is inconsistent with other evidence in the
record, or it was issued by a physician who was unfamiliar with the claimant’s history or
other evidence in the record. 20 C.F.R. § 404.1527(c)(3)-(6). Such findings may be
true of an opinion that was prepared for legal purposes to support a plaintiff’s claim,
rather than for purely medical purposes.
However, the regulations do not contemplate discounting opinions solely
because they were prepared for advocacy purposes; rather, the decision to discount an
opinion must result from weighing the factors described in the regulations. See Frey v.
Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (holding that “the ALJ’s assertion that a
family doctor naturally advocates his patient’s cause” is not good cause to reject his
opinion) (internal quotation marks omitted); McGoffin v. Barnhart, 288 F.3d 1248, 1253
(10th Cir. 2002) (citing Frey and finding that “the ALJ’s rejection of Dr. Luc’s
assessment on the basis of advocacy is a mere ‘conclusory statement’” unsupported by
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considering the requisite factors). Therefore, the ALJ erred to the extent that she
discounted Dr. Vega’s opinion solely because it was prepared for litigation.
However, on a close reading of the ALJ’s decision, it is apparent that the
advocacy nature of Dr. Vega’s opinion was not the primary reason the ALJ diminished
the weight it was assigned. Rather, the ALJ stated only that it “supported the finding”
that Dr. Vega’s opinion merited little weight. (R. at 15.) Additionally, the ALJ found Dr.
Vega’s opinion deserving of “great weight” to the extent that it was consistent with Dr.
Valette’s opinion. (Id.) Upon review of the opinions at issue, the Court finds that Dr.
Vega and Dr. Valette generally agree in the narrative portion of their opinions, and it is
principally in the severity of the limitations in Dr. Vega’s RFC evaluation where his
opinion diverges from Dr. Valette’s. (See R. at 468-69.) Therefore, because it was
consistent with Dr. Valette’s opinion, the majority of Dr. Vega’s opinion was given great
weight by the ALJ. (Id. at 15.) Insofar as the ALJ evaluated Dr. Vega’s opinion based
upon its consistency with other medical evidence, she properly weighed the opinion.
See 20 C.F.R. § 404.1527(c)(4). Because substantial evidence supports the granting of
great weight to the parts of Dr. Vega’s opinion that were consistent with the record, and
discounting the other parts, the ALJ’s weighing of Dr. Vega’s opinion was not reversible
error.
This analysis explains why the ALJ did not incorporate Dr. Vega’s assessment of
Plaintiff’s RFC into the decision. Plaintiff argues that the ALJ erred in failing to include
Dr. Vega’s restrictions, citing the Tenth Circuit in holding that it is improper for the ALJ
to “pick and choose through an uncontradicted medical opinion, taking only the parts
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that are favorable to a finding of nondisability.” Chapo v. Astrue, 682 F.3d 1285, 1292
(10th Cir. 2012) (internal quotation marks omitted); (ECF No. 12 at 17 (citing Chapo)).
Plaintiff’s argument is inapposite where, as here, the ALJ is not faced with “an
uncontradicted medical opinion.” See id. The ALJ’s decision gave great weight to the
parts of the opinions of Dr. Vega and Dr. Valette that were consistent with each other,
which did not include Dr. Vega’s RFC form. (See R. at 468-69.) The ALJ had discretion
to reject that part of Dr. Vega’s opinion, or, as she appeared to do, moderate the
restrictions therein to align more closely with the other medical evidence. (See R. at
12.) Thus, given the ALJ’s weighing of the opinions, the decision not to fully incorporate
Dr. Vega’s assessment of Plaintiff’s limitations into the RFC was reasonable.
In sum, the Court finds that although one of the ALJ’s stated reasons for
discounting Dr. Vega’s opinion was in error, that error was harmless because
substantial evidence supported the ALJ’s weighing of Dr. Vega’s opinion.
B.

Dr. Valette
Plaintiff also contends that the ALJ failed to explain why she assigned great

weight to Dr. Valette’s opinion. (ECF No. 12 at 11-12.) Because Dr. Vega and Dr.
Valette were both examining providers with the same specialty, Plaintiff argues that they
were presumptively entitled to the same weight, and the ALJ did not discuss the
reasons for prizing the opinion of Dr. Valette over that of Dr. Vega. (Id.)
The Court agrees that “the ALJ must give good reasons in the notice of
determination or decision for the weight [s]he ultimately assigns the opinion.” Watkins,
350 F.3d at 1301. The ALJ erred in that her decision did not discuss the reasons for the
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weight she gave to Dr. Valette’s opinion. (R. at 15.) That failure was error.
However, it is apparent from the ALJ’s discussion of Dr. Vega’s opinion that the
ALJ gave great weight to the consistent parts of both Dr. Vega’s and Dr. Valette’s
opinions. (Id.) Although Plaintiff argues that Dr. Valette’s opinion was prized above Dr.
Vega’s, upon review of the record, the Court finds that Dr. Valette’s opinion and Dr.
Vega’s opinion generally agree. (See R. at 426-29, 468-73.) It appears that rather than
elevating the weight of Dr. Valette’s opinion, the ALJ simply valued it above Dr. Vega’s
because Dr. Vega’s opinion was discounted for the reasons discussed above.
Therefore, although the ALJ should have discussed the reasons for giving Dr. Valette’s
opinion great weight, the Court finds that substantial evidence supports such a
determination, and the opinion was consistent with the record as a whole. See also
Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (“When the ALJ does not need
to reject or weigh evidence unfavorably . . . the need for express analysis is
weakened.”).
Accordingly, the Court finds that the ALJ’s error in failing to discuss the reasons
for giving great weight to Dr. Valette’s opinion was harmless.
C.

Dr. Wharry
Plaintiff argues that the ALJ erred in failing to discuss the opinion of Dr. Wharry,

a non-examining State agency psychologist, because it appears from the formulation of
the RFC that the ALJ relied upon her opinion. (ECF No. 12 at 18.)
An ALJ “must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician, psychologist, or
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other medical specialist, as [she] must do for any opinions from treating sources,
nontreating sources, and other nonexamining sources.” 20 C.F.R. § 416.927(e)(2)(ii).
“If an ALJ intends to rely on a nontreating physician or examiner’s opinion, he must
explain the weight he is giving to it.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.
2004) (citing 20 C.F.R. § 416.927(e)(2)(ii)).
Nevertheless, the Tenth Circuit has found that an ALJ’s failure to assign a
specific weight to a consulting examiner’s opinion was harmless error, because the
opinion was not inconsistent with the other evidence of record or with the ALJ’s RFC
findings. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (finding that
failure to explicitly weigh an examining opinion was harmless error because “[t]here is
no reason to believe that a further analysis or weighing of this opinion could advance
[the plaintiff]’s claim of disability.”).
In the instant case, the ALJ’s decision neither mentioned nor weighed Dr.
Wharry’s opinion. (See R. at 15.) As with Dr. Valette’s opinion, the ALJ’s failure to
discuss or weigh this medical opinion was error. See 20 C.F.R. § 416.927(e)(2)(ii).
Thus, the Court must determine whether the error was harmless, or whether it requires
reversal.
As a non-examining consulting psychologist, Dr. Wharry’s opinion of Plaintiff’s
mental RFC was formulated based upon the other documentation in the record.
Accordingly, it is unsurprising that Dr. Wharry’s opinion is generally consistent with the
opinions of Dr. Valette and Dr. Vega. (See R. at 426-29, 444-47, 468-73.) However,
Dr. Wharry’s evaluation of Plaintiff’s limitations in her RFC assessment form differs from
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Dr. Vega’s.3 (Compare R. at 426-29 with 468-69.) Where Dr. Wharry notes that Plaintiff
is “moderately limited” in the ability to understand, remember, and carry out detailed
instructions, to maintain attention and concentration for extended periods, and to
complete a normal workday and workweek at a consistent pace, Dr. Vega notes
“moderate to marked” limitations in these areas, as well as in several others. (Id.) The
RFC form Dr. Vega used states that a “moderate” limitation indicates the claimant is
“still able to function,” while a “marked” limitation means that “[t]he ability to function in
this area is severely limited but not precluded.” (R. at 468.) Thus, although there are
consistencies with regard to the types of limitations noted by the two doctors, there is a
difference between the two opinions in the limitations’ severity.
Plaintiff argues that, because the ALJ’s evaluation of Plaintiff’s limitations in
maintaining concentration, persistence and pace were “strikingly similar” to Dr. Wharry’s
RFC assessment, and both Dr. Wharry and the ALJ limited Plaintiff to “simple” work, the
ALJ must have “closely followed” Dr. Wharry’s opinions. (ECF No. 12 at 18.) The Court
agrees that the concentration, persistence and pace restrictions in the ALJ’s RFC all
appear among the “moderate” limitations Dr. Wharry recommended, while not all the
“moderate to marked” limitations in Dr. Vega’s opinion were adopted. (See R. at 12,
444-45, 468-69.) However, while Dr. Wharry found no limitations in social functioning,

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Dr. Valette did not prepare an RFC form. See 426-29. Plaintiff argues that this reveals
the ALJ’s failure to properly assess the evidence, because the ALJ’s decision notes that Dr.
Valette’s “suggested restrictions were incorporated into the [RFC] assessment”. (R. at 15.)
Plaintiff contends that “Dr. Valette did not even offer any restrictions.” (ECF No. 12 at 16.)
However, while Dr. Valette did not list specific employment limitations, he did discuss Plaintiff’s
ability to function in his opinion, despite not filling out an RFC form. (R. at 429.) Thus, the
Court finds Plaintiff’s argument on this point unpersuasive.

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the ALJ did include limitations on Plaintiff’s ability to interact with the public and with
coworkers in the RFC. (R. at 12.)
Although Plaintiff encourages the Court to assume that the ALJ relied upon Dr.
Wharry’s opinion in formulating the RFC, the Court need not make such a guess,
because the ALJ explicitly stated in her decision that she incorporated restrictions “in
the areas of social functioning and concentration, persistence and pace” based upon
the opinions of Dr. Vega and Dr. Valette. (R. at 15.) Further, the ALJ stated that she
incorporated the suggestions of Dr. Valette into the RFC assessment. (Id.) The
similarity between the RFC and Dr. Wharry’s opinion is not so striking as to cast doubt
upon the veracity of the ALJ’s explanation of her decision. Thus, the Court finds that
the ALJ did not rely upon Dr. Wharry’s opinion in formulating the RFC. Rather, it is
more reasonable to interpret the ALJ’s reduction of the severity of Dr. Vega’s
restrictions as a discretionary determination, based upon her decision to give great
weight to Dr. Valette’s opinion, and to discount the weight of Dr. Vega’s RFC
assessment in light of the other evidence in the record.
Further, the Court finds Dr. Wharry’s opinion generally consistent with the
opinions of Dr. Vega and Dr. Valette, except to the extent that Dr. Wharry listed less
severe restrictions in her RFC assessment than did Dr. Vega. A reduction of severity of
restrictions would not benefit Plaintiff’s claim. Thus, because “[t]here is no reason to
believe that a further analysis or weighing of this opinion could advance [Plaintiff]’s claim
of disability,” the Court finds that the ALJ’s failure to discuss and weigh Dr. Wharry’s
opinion was harmless. See Keyes-Zachary, 695 F.3d at 1163.
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In conclusion, despite finding errors in the analysis—or lack thereof—of the
opinions of Dr. Vega, Dr. Valette, and Dr. Wharry, the Court finds that “more than a
scintilla” of evidence exists to support the ALJ’s evaluation of Plaintiff’s mental RFC, and
that evidence was not overwhelmed by contrary evidence. See Lax, 489 F.3d at 1084.
As there is sufficient evidence in the record to support the ALJ’s determination, the
Court must defer to the ALJ’s evaluation of the evidence and may not reweigh it in her
place. See Salazar, 468 F.3d at 621. Accordingly, the Court finds that the ALJ’s errors
were harmless and her decision was supported by substantial evidence in the record.
Id.
III. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is AFFIRMED.

Dated this 2nd day of August, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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