Williams v. Colvin

Filing 27

ORDER REVERSING DISABILITY DETERMINATION. by Chief Judge Marcia S. Krieger on 2/17/15. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-1423-MSK
LEE KIRK WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN, acting Commissioner of Social Security,
Defendant.

OPINION AND JUDGMENT REVERSING DISABILITY DETERMINATION

THIS MATTER comes before the Court as an appeal from the Commissioner’s Final
Administrative Decision (the “Decision”) determining that Mr. Williams was not disabled within
the meaning of §§216(i) and 223 of the Social Security Act, as amended. The Court has
carefully considered the record, the initial briefing, oral argument and additional briefing
submitted by the parties.
PROCEDURAL BACKGROUND
Mr. Williams sought disability benefits under Title II of the Act1 based on mental
impairments - bipolar disorder, depression, anxiety, and insomnia – that rendered him unable to
work as of March 23, 2009. The state agency denied his claim, and he requested a hearing
before an Administrative Law Judge (ALJ). His first hearing was conducted in April 2011, after
which an ALJ determined that Mr. Williams was not disabled. Mr. Williams appealed and the

1

42 U.S.C. §§ 401-433.
1

Appeals Council vacated the ALJ’s decision and remanded the case for further proceedings in
accordance with explicit instructions.2
A second hearing was conducted in April 2012 by the same ALJ. He again determined
that Mr. Williams was not disabled. The Appeals Council declined review of the decision,
making it the final decision of the Commissioner. Mr. Williams timely appealed to this Court,
which exercises jurisdiction pursuant to 42 U.S.C. § 405(g).
MATERIAL FACTS
When he filed his disability claim, Mr. Williams was 46 years old, had a college degree
and had worked as a customer service representative, telephone solicitor, stock clerk, cleaner,
protective signal operator, order clerk, sandwich maker, and caterer helper. He sought disability
benefits because he could not work due to his mental illness.
Between 2005 and 2012, Mr. Williams was diagnosed as suffering from and treated for
bipolar affective disorder, major depressive disorder, post-traumatic stress disorder, anxiety
disorder, and a panic disorder. At various times, he was prescribed a variety of different
medications including Seroquel, Zoloft, Trileptol, Alprazolam, and Xanax.

2

Although neither party has addressed the remand order, its specificity is noteworthy, both
because it directed the ALJ to obtain additional information and because the ALJ ultimately did
not do so. It specified[#13-3 p. 25] :
“Upon remand, the Administrative Law Judge will:
 Obtain additional evidence concerning the claimant’s impairments in order to complete
the administrative record in accordance with the regulatory standards regarding
consultative examination and existing medical evidence (20 CFR 404.1512-1513) The
additional evidence may include, if warranted and available, a consultative examination
with psychological testing and medical source statements about what the claimant can
still do despite the impairment.
 Further evaluate the claimant’s mental impairments in accordance with the special
technique described in 20 CFR 404.1520a, documenting application of the technique in
the decision by providing specific findings and appropriate rationale for each of the
functional areas described in 20 CFR 404.1520.”
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His subjective symptoms included anxiety, panic attacks, racing thoughts, auditory
hallucinations, insomnia, paranoia, and difficulty with comprehension and concentration. In
particular, he stated that he experienced panic, high anxiety, paranoia, feelings of doom, and
terror, particularly around crowds. He also described being sensitive to noise and unable to
tolerate environments that are too fast or too loud. In such environments, he stated that his
system becomes overloaded, his brain “overheats,” his thoughts race and he experiences
adrenaline rushes which affect his ability to get along with others.
Medical Treatment and Opinions by Treating Professionals
Between 2005 and 2009, Mr. Williams was treated by psychotherapist Faith Donaldson,
who focused upon his problems of self-confidence, anger, difficulties with interpersonal
relationships, and sensory integration issues. In January 2011, Ms. Donaldson completed a
“medical source statement of ability to do work-related activities (mental)” in which she
expressed two opinions – a conclusory opinion that she could not see Mr. Williams as “being
able to hold down a job of any kind,” and a differentiated opinion assessing his functional
limitations. She opined that Mr. Williams had:
• moderate limitation in his ability to interact appropriately with co-workers;
• marked limitation in his ability to interact appropriately with supervisors;
• marked limitation in his ability to respond appropriately to usual work situations
and to changes in a routine work setting; and
• extreme limitation in his ability to interact appropriately with the public.
Beginning in 2006, Mr. Williams began treatment with Dr. Howard Weiss, M.D, a
psychiatrist. Dr. Weiss offered two opinions. The first was written on his business letterhead
and simply stated that Mr. Williams was under his care for mood instability and he was “unable
to attain and maintain gainful employment due to severe depression.” The second was issued in
February 2011, when Dr. Weiss completed a “medical source statement of ability to do work-

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related activities (mental).” He agreed with many areas of limitation noted by Ms. Donaldson
and added several more. He opined that Mr. Williams had:
• moderate limitation in his ability to make judgments on work-related decisions;
• moderate limitation in his ability to interact appropriately with supervisors;
• marked limitation in his ability to understand, remember, and carry out complex
instructions;
• marked limitation in his ability to interact appropriately with co-workers;
• marked limitation in his ability to respond appropriately to usual work situations
and to changes in a routine work setting; and
• mild limitation in his ability to interact appropriately with the public
Beginning in 2010, Mr. Williams received treatment from various mental health
professionals through the Jefferson Center for Mental Health. Professionals at the Jefferson
Center, Dr. Barry Frieder, M.D., Dr. Thomas Kinney, Psy.D, Dr. John Martens M.D., and
Malgorzata Gawron, APRN all offered medical opinions. Dr. Frieder expressed an opinion in
his 2010 treatment notes that Mr. William’s “level of irritability precludes his holding work long
enough to sustain himself.” Dr. Kinney completed a “medical source statement of ability to do
work-related activities (mental),” in 2011 that reflects the same areas of limitation as those
recognized by Ms. Donaldson and Dr. Weiss:
• moderate limitation his the ability to understand, remember, and carry out simple
instructions;
• marked limitation in his ability to make judgments on work-related decisions;
• marked limitation in his ability to understand, remember, and carry out complex
instructions;
• marked limitation in his ability to interact appropriately with the public,
supervisors, and co-workers; and
• marked limitation in his ability to respond appropriately to usual work situations
and to changes in a routine work setting
In early 2011, Dr. John Martens M.D. and Malgorzata Gawron, APRN jointly completed a
“medical source statement of ability to do work-related activities (mental),” in which they
opined that Mr. Williams suffered from bi-polar disorder and had:
• moderate limitation in his ability to make judgments on work-related decisions;
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• moderate limitation in his ability to understand and remember, and carry out
complex instructions;
• moderate limitation in his ability to interact appropriately with co-workers;
• moderate limitation in his ability to respond appropriately to usual work situations
and to changes in a routine work setting; and
• marked limitation in his ability to interact appropriately with the public and with
supervisors.
Medical Opinions by Non-Treating Professionals
The record also contains opinions of consultants, but these were submitted in 2009 and
never supplemented.
Consulting psychologist Brett Valette Ph.D. examined and evaluated Mr. Williams at
the request of the state agency in August 2009. Dr. Valette reviewed only records by Ms.
Donaldson prior to examination. Dr. Valette diagnosed Mr. Williams as suffering from
posttraumatic stress disorder (PTSD), bipolar II disorder, generalized anxiety disorder, and panic
disorder, and assigned him a global assessment of functioning (GAF) score of 55-60, indicative
of moderate symptoms. He observed that Mr. Williams could handle his own money, that he
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was paying attention and that his mental status was good, but he expressed no opinion as to
functional limitations.
MaryAnn Wharry, Psy.D. a state consulting psychologist, also reviewed Mr. Williams’
medical records in 2009. She considered records of treatment by Ms. Donaldson, Dr. Weiss and
the assessment of Dr. Valette. Dr. Wharry opined Mr. Williams suffered from a bipolar II
Disorder, PTSD, and Generalized Anxiety and Panic disorders. She also opined that the records
demonstrated “mild” restriction of activities of daily living, but “moderate” difficulties in

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A GAF of 51-60 indicates “[m]oderate symptoms (e. g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or coworkers).” American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IVTR), at 34.
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maintaining social functioning. She noted that a Mental Residual Functional Capacity
Assessment was necessary. In her report, she opined that Mr. Williams had only two limitations:



Moderate limitation in the ability to interact appropriately with the general public
Moderate limitation in the ability to accept instructions and responds
appropriately to criticism from supervisors

She summarized that as of 2009, Mr. Williams was able to do “work of limited complexity, but
which requires accuracy and attention to detail; can respond appropriately to supervision and
coworkers but must have minimal to no interaction with the general public. Semi-Skilled
Work, Can’t Work w/ Public” (emphasis in original).
ISSUES PRESENTED
The Decision reflects the standard 5-step analytical process. At issue, are the ALJ’s
analysis and findings at Steps 3 and 4.
At Step 3, the ALJ found that the severe impairments identified at Step 2 - “depressive
disorder versus bipolar disorder; anxiety disorder; panic disorder; and posttraumatic stress
disorder”4 - did not meet or equal the severity of any impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1. The ALJ identified two Listings that could possibly apply – 12.04 and
12.06. With regard to these, he considered only “paragraph B and paragraph C” criteria that
focus on the degree of restriction or impairment. In determining that the degree of Mr. Williams
impairment did not meet or equal the Listings, the ALJ relied solely upon Dr. Wharry’s 2009
functional assessment. There is no discussion of treatment records or medical opinions
pertaining to 2010, 2011 or 2012.
At Step 4, the ALJ first determined that Mr. William’s description of his symptoms was
not credible. Then, the ALJ rejected the functional assessment opinions of all treating providers
4

It should be noted that the Step 2 findings were conclusory, without discussion as to what
medical evidence was considered, credited or discredited.
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as “unpersuasive” because they were premised, at least in part, upon Mr. Williams’ description
of his symptoms. In addition, the ALJ rejected the opinions of Dr. John Martens M.D.,
Malgorzata Gawron, APRN and Ms. Donaldson as not “not acceptable”. The opinons of Ms.
Donaldson and Ms. Gawron were rejected because they were not acceptable medical sources.
Dr. Martens’s opinion was rejected because he was not a “treating source.”
Ultimately, in reliance upon Dr. Wharry’s 2009 record review opinion, which he found
consistent with Dr. Valette’s 2009 consulting examination opinion and “other objective medical
evidence,” the ALJ determined that Mr. Williams was: 1) unable to perform rapid productionrate physical work, such as rapid assembly-line work, work requiring hyper-vigilance, work
involving safety operations, or work involving responsibility for the safety of others; and 2) that
he should have no direct exposure in the workplace to alcohol, marijuana, illegal drugs, or the
prescription drug Xanax. Subject to these limitations, the ALJ found that Mr. Williams could
perform semi-skilled work, with workplace noise at a moderate level, with frequent interaction
with coworkers and the public. Based on this RFC determination, the ALJ found that Mr.
Williams could perform his past relevant work as a customer service representative, telephone
solicitor, stock clerk, cleaner, order clerk, and sandwich maker, and therefore was not disabled.
Mr. Williams challenges the Decision in several respects: 1) at Step 3, he argues that the
ALJ failed to properly evaluate Mr. Williams’ mental impairments in accordance with the
Listings; 2) at Step 4, he argues that the ALJ erred in evaluating the medical evidence in
determining Mr. Williams’ RFC; and 3) also at Step 4, he argues that the RFC finding is not
supported by substantial evidence because the ALJ failed to properly evaluate Mr. Williams’
credibility.

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STANDARD OF REVIEW
This Court is not free to reweigh the evidence nor substitute its judgment for that of the
Commissioner. Rather, the Court carefully reviews the record and the Decision to determine
“whether the correct legal standards were applied and whether the decision is supported by
substantial evidence.” Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008); see Madrid v.
Barnhart, 447 F.3d 788, 790 (10th Cir. 2006); Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005). If the Decision fails to reflect application of the correct legal standard, it must be
reversed. Washington v. Shalala, 37 F.3d 1437, 1439-40 (10th Cir. 1994). Similarly, if a factual
finding is not supported by substantial evidence, it must be reversed. Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
ANALYSIS
I.

Step 3 Challenge

The Court begins with Mr. Williams’ challenge at Step 3. Mr. Williams contends that
the ALJ filed to “evaluate properly Mr. Williams’ mental impairments”. In his brief, he offers
13 pages of entries drawn from his medical treatment records from 2006-2012, which he
contends generally would demonstrate satisfaction of the Listing requirements at 12.04 or 12.06.
However, there is no specific argument that explains how the medical records show that Mr.
Williams’ impairment meets or equals the Listings. Alternatively, Mr. Williams argues that the
ALJ should have employed a medical expert to opine as to whether the combination of Mr.
Williams’ severe impairments would equal a Listing. The Commissioner responds in conclusory
fashion that “substantial evidence” supports the ALJ’s findings.

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The arguments of both parties miss the mark. A claimant bears the burden of
establishing that an impairment matches a Listing. Bernal v. Bowen, 851 F2d 297, 300 (10th Cir
1988). Mr. Williams’ chronology of medical treatment records is not helpful in this regard
because the Court is not free to assess the medical records to make factual findings.
The Commissioner’s argument is also unhelpful. Saying that the finding is supported by
substantial evidence doesn’t address whether the ALJ applied the correct legal standard or
sufficiently articulated consideration of appropriate factors and evidence. At Step 3, an ALJ
must discuss uncontroverted evidence not relied upon as well as significant probative evidence
that is rejected. Clifton v. Chater,79 F3d 1007 (10th Cir 1996). Failure to do this deprives this
Court of the ability to engage in meaningful review. An inadequacy of articulation, however,
does not necessarily require reversal if there are “confirmed or unchallenged findings made
elsewhere in the ALJ’s decision” that confirm the step three determination. Fischer-Ross v.
Barnhart, 431 F3d 729 (10th Cir 2005).
The Court finds that the Decision’s articulation at Step 3 is deficient. The Decision does
not identify any uncontroverted evidence or significant probative evidence that was rejected.
The only medical evidence considered in determining whether the “Paragraph B and C criteria”
of Listings 12.04 and 12.06 were satisfied is Dr. Wharry’s 2009 record review opinion.
Consistent with Fischer-Ross, the Court will consider whether the requisite articulation is
apparent elsewhere in the Decision.
However, even if a fuller explanation of the evidence appears elsewhere, the Step 3
findings are not supported by substantial evidence. This is because the time period for
consideration of Mr. Williams’ impairments begins in April 2009 and extends through April
2012, but the evidence upon which the ALJ relies is limited to Dr. Wharry’s opinion in 2009.

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There is no consideration of evidence of Mr. Williams’ condition in 2010, 2011 or 2012. As a
consequence, the Step 3 findings are not supported by substantial evidence, requiring reversal.5
II.

Step 4 Challenges

With regard to the ALJ’s Step 4 RFC determination, Mr. Williams frames two
intertwined objections. He contends that the ALJ failed to apply the correct legal standard in
assessing medical evidence and in formulation of his RFC. In particular, he argues that the ALJ
improperly substituted his credibility assessment for the proper legal standards. The
Commissioner does not address the question of legal error, responding only that the credibility
determination and the resulting RFC was supported by substantial evidence.
A. Observations
The Court pauses here to note the significance of the issue that Mr. Williams raises. The
heart of his challenge is that rather than evaluating medical opinions based on established legal
standards, the ALJ first decided whether Mr. Williams was believable and then let that
perception drive the outcome of the matter. This is a serious and significant challenge, one that
the Commissioner never directly addresses despite the Court bringing it to counsels’ attention
and providing the opportunity for supplemental briefing.
This is a serious and significant matter 6 because it calls the integrity of the Social
Security Disability claim review process into question. It is axiomatic that the determination of
Social Security disability claims is an administrative process created and limited by statute,
regulation, Social Security Rulings, POMS, and the like. When a Claimant opts for a hearing
5

It would appear that this problem could have been avoided had the ALJ complied with the
Remand Order by the Appeals Council.
Because this case presents such a stark example of the problem, at the hearing for oral argument, the Court invited further briefing. Both parties submitted
supplemental briefs. Mr. Williams identified pertinent Tenth Circuit case-law, as well as several unreported District Court decisions that illustrate the same
problem as observed here. The Commissioner argued, as it had before, that the ALJ’s credibility assessment was supported by the record. The Commissioner
did not address the fundamental legal issue of whether an ALJ can reject medical opinions based upon the ALJ’s assessment of the credibility of a claimant’s
symptom description.

6

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before an ALJ, the hearing process is intended to be non-adversarial. The job of the ALJ is to
ensure that an adequate record is developed and that the appropriate legal standards are applied.
Henrie v. United States Dep’t of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993).
If an ALJ can bypass the legal standards to substitute his/her personal belief as to a claimant’s
entitlement to benefits, then the disability determination is matter of personal discretion and law
does not rule. Such situation undermines public confidence in the fairness and predictability of
the process.
It is also serious and significant, because there is no recognition by the Commissioner of
the problem. The Commissioner’s repeated response to challenges of legal or procedural error is
that the decision/finding is supported by “substantial evidence”. This reflects a fundamental
confusion between factual findings and legal conclusions. The “substantial evidence” standard
is a measurement of the proof necessary to support factual findings; it does act as a substitute for
proper application of the law. In essence, the Commissioner is saying that if the outcome is
acceptable, then it does not matter what process or law is used to produce it, a proposition this
Court fundamentally rejects.
Finally, this issue is serious and significant because it describes a problem that occurs all
too frequently. In this Court’s experience with hundreds of Social Security Appeals, the
“credibility assessment of the claimant” (as compared to the credibility of the claimant’s
statements) is increasingly used as a substitute for application of the proper legal standards, and
the Commissioner defends the decision by arguing that it is supported by “substantial evidence”.

B. The ALJ’s Step 4 Reasoning

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In this Decision, the ALJ rejected the medical opinions of all treating and examining
medical sources for a singular reason – they were “unpersuasive.” By this, the ALJ meant that
he did not believe Mr. Williams’ description of his symptoms, and therefore he rejected all
opinions by treating sources that consonant with that description because they necessarily were
based on Mr. William’s own incredible complaints. The ALJ explained:
Overall, it appears from a review of the medical records that all of these treating sources
accepted at face value the statements made and symptoms reported by the claimant.
Indeed, there is nothing in the medical treatment records to suggest otherwise. For
example, there is nothing the medical treatment records to suggest that any treating
source conducted any type of validity testing. Nor is there anything in the medical
records to suggest that during treatment, any treating source considered whether or not
the claimant’s subjective symptoms or self-reporting were motivated in whole or in part
by primary or secondary gain. Moreover, the medical treatment records and the report of
the consultative exam discussed above do not document inability to interact appropriately
with treating sources or any significant deficits in concentration
When a person provides information to a health care professional in the context of
counseling or treatment, that information is typically described as the “patient history.”
Thus, in a medical context, a “patient history” is simply a specific type of self- reporting.
In the context of health care, a patient’s “history” plays an important role in diagnosis,
treatment, and prognosis. Because of the important role it plays in health care, a patient’s
“history” must be accurate and reliable. It is similarly self-evident that an accurate and
reliable patient history is essential to a correct diagnosis; to an appropriate mode of
treatment; and finally, to a reasoned prognosis.
It is similarly self-evident that in order for a patient’s history to be reliable, the
information provided by the patient must be fully credible. It follows, then that fully
credible self-reporting by a patient is an essential element to both diagnosis and
prognosis. Finally it follows that in a medico-legal setting such as this disability claim,
fully credible self-reporting by a patient is an essential element [sic] a correct diagnosis
of physical and /or mental impairment and a reliable assessment of functional limitation
and/or ability to work.
In this case, treating sources have given opinions not only about the claimant’s diagnosis
and prognosis, but also about the claimant’s ability to work. The credit to be given these
opinions, especially regarding functional impairment and ability to work, depend in large
part on the credit to be given the patient’s history. However, in this case I have found (as
I explain elsewhere in the this decision) that the allegations of the claimant are not fully
credible. . . . Thus, in this case, I am unable to give any significant weight to the treating
source opinions regarding functional impairment or ability to work, because an essential
element of the treating source assessments has been undermined. . . . More specifically, I
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give little to no weight to these opinions, which overstate the claimant’s limitations. [132 pp. 37-38]
In addition to finding their opinions “unpersuasive,” the ALJ rejected the opinion of Dr. John
Martens M.D. because the ALJ could find no treatment records evidencing his treatment and
rejected the opinion of Malgorzata Gawron, APRN because she was not an accepted medical
source.
C. The ALJ erred as a matter of law by failing to apply the correct legal standards
to the opinions of treating medical sources
In determination of disability claims, the existence and the extent of an impairment is
determined by considering evidence of “Signs” and “Symptoms.” 20 C.F.R. § 404.1508.
“Signs” are objective medically recognized facts that can be described, evaluated, and
documented using acceptable clinical, diagnostic or laboratory techniques. 20 C.F.R. §
404.1528(b). Medical facts are reported in tests, treatment notes, and serve as the basis of
medical opinions as to diagnosis, prognosis and functional capability and limitation. For
example, results of a blood test may indicate diabetes or clinical observation may show signs
muscle strain.
In the psychiatric/psychological context there may be no laboratory or test result that
measure mental disease. Thus, with regard to psychological or mental impairments, medical
signs are demonstrable phenomena indicating psychological abnormalities, e.g., abnormalities of
behavior, mood, thought, memory, orientation, development or perception. 20 CFR §
404.1528(b). Observations of medical signs by clinicians constitute medical data, and to the
extent that an opinion with regard to psychological or mental impairments rests on clinicallyobserved signs and reported symptoms, the opinion are treated as any other medical opinion. 20

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CFR Subpart P, App 1 §12.00(B); Robinson v. Barnhart, 366 F3d 1078, 1083 (10th Cir 2004);
Washington v. Shalala, 37 F3d 1437, 1441 (10th Cir. 1994).
“Symptoms,” in contrast, are observations or descriptions made by a claimant with
regard to an impairment or how the impairment affects him or her. 20 CFR Part 404, Subpart P,
Appendix 1, §12.00 B; 20 C.F.R. § 404.1528(a). By definition, symptoms are subjective and
most often cannot be measured or tested. They often include pain, fatigue, weakness,
nervousness and the like.
Not surprisingly, “signs” and “symptoms” are evaluated using different frameworks. A
medical provider’s evaluation of facts and opinions with regard to diagnosis, prognosis, and
functional capability is given a great deal of deference.7 The ALJ may not substitute his/her
personal expertise or opinion for that of the medical professional, speculate as to medical or
other facts, or consider the credibility of statements made by the claimant as to subjective
symptoms. McGoffin v. Barnhart, 288 F2d 1248, 12 52 (10th Cir. 2002) (citing to Morales v.
Apfel, 225 F3d 310, 317-18 (3d Cir. 2000). When medical professionals offer conflicting
opinions, the ALJ can: (i) supplement the record by obtaining further medical evidence and
opinions; or (ii) weigh the evidence and opinions, in accordance with a hierarchy of deference,
generally giving more weight to medical opinions from treating sources than to those from nontreating sources. Drapeau v. Massanari, 255 F3d 1211 (10th Cir. 2001); Frey v. Bowen 816 F2d
508, 513 (10th Cir 1987); Turner v. Heckler,754 F2d 326, 329 (10th Cir 1985). Indeed, opinions
of treating sources must be given controlling weight unless: (i) the opinion is not supported by
clinical and laboratory diagnostic techniques; or (ii) is inconsistent with other substantial
7

One exception is when a legal opinion is offered by a medical professional. When a
medical professional states that a claimant is “disabled,” this is a legal determination a legal
determination reserved to the Commissioner. 20 CFR 404.1527(e)(2); 416.927(e)(2) Castellano
v. Secretary of Health and Human Services, 26 F3d 1027,1029 (10th Cir. 1994).
14

evidence in the record. 20 CFR § 404.1527(a)(2) and 416.927(a)(2). Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003). Even if a treating physician’s opinion does not control, like
all medical opinions, it must be must be weighed in accordance with the factors specified in 20
CFR 404.1527.8 SSR 96-2p Such factors must also be used to evaluate the opinions of
providers who do not qualify as accepted medical sources. See Bonnell v. Astrue, 650 F.Supp.2d
948, 958-59 (D.Neb. 2009).
As noted, a claimant’s credibility cannot be considered in assessing medical evidence.
A claimant’s credibility is pertinent only as to statements about his or her symptoms, and then
only to assess the intensity, persistence and functional limitations of such symptoms. 20 CFR §
404.1529 and 416.929. The credibility determination is not a free-form judgment of whether the
claimant is truthful in general, but instead requires a structured consideration of the relationship
between the objective medical facts and the subjective symptoms:
When the existence of a medically determinable physical or mental impairment(s) that
could reasonably be expected to produce the symptoms has been established, the
intensity, persistence, and functionally limiting effects of the symptoms must be
evaluated to determine the extent to which the symptoms affect the individual’s ability to
do basic work activities. This requires the adjudicator to make a finding about the
credibility of the individual’s statements about the symptoms and its functional effects.
SSR 96-7p. 9
8

Those factors include: (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
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.
9

In the Tenth Circuit this is often referred to as the Luna test. Luna v. Bowen, 834 F2d
161, 162-66 (10th Cir.1987). Under Luna, there are three determinations: 1) whether claimant has
a pain-producing impairment established by objective medical evidence; 2) if so, whether there
is a loose nexus between the proven impairment and the claimant’s subjective allegations of
pain; and 3) if so, whether considering all of the evidence, both objective and subjective,
claimant’s pain is disabling. Later Kepler v. Chater 68 F3d 387, 391 (10th Cir. 1995), instructed
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There is no basis for the ALJ to make an assessment of subjective symptoms (or the
credibility of the claimant’s statements) before concluding that a medically determinable
impairment that could cause the symptoms exists. This requires the ALJ to first evaluate the
medical evidence to determine what impairments exist.10 Then the ALJ must identify the
subjective symptoms and correlate them to the impairment. Only if the symptoms are related to
the impairment is a credibility assessment of a claimant’s statements made, and the significance
of such assessment is limited to consideration of the intensity, severity and limitations in the
claimant’s ability to work
Limitation in the role of credibility assessment is applicable to mental impairments and
to physical impairments that are hard to document with objective medical evidence. In Valdez v.
Barnhart, 63 Fed. Appx. 838 (10th Cir. 2003) (unpublished), the Tenth Circuit considered facts
similar to those presented here. The ALJ rejected opinions of treating physicians with regard to
the claimant’s mental impairments based on an assessment of the credibility of the claimant’s
symptom description. The Court reversed the Commissioner’s decision to deny benefits, finding
that that the ALJ erred in applying the correct legal standard. The Court observed:

that findings as to credibility should be closely and affirmatively linked to substantial evidence
and not just a conclusion in the guise of findings. The ALJ must set forth specific medical and
non-medical evidence relied on in determining the claimant’s subjective complaints not credible.
Then Qualls v. Apfel, 206 F3d 1368, 1372 (10th Cir 2000), instructed that there need not be a
formalistic recitation of the evidence in light of Luna, so long as the ALJ sets forth the specific
evidence considered in the credibility assessment.
10

It is important to note that the determination at Step 2 (severe impairment) may not be
sufficient to satisfy the first prong of this analysis. At Step 4, the ALJ must consider both severe
and non-severe impairments in determining their effect on the Claimant’s RFC. Thus, before
discussing the credibility of Claimant’s statements as to subjective symptoms, the ALJ must
identify all of the impairments under consideration. For example, depression may be a severe
impairment identified at Step 2. In assessing the Claimant’s subjective complaints of leg pain,
the ALJ must also consider the non-severe impairment of a prior leg fracture to determine
whether it might give rise to continuing leg pain.
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The ALJ rejected Dr. Schmidt's opinion, stating that it was based
on plaintiff's complaints, which the ALJ found were not credible.
This approach impermissibly put the ALJ in the position of
judging a medical professional on how he should assess medical
data—plaintiff's complaints. An ALJ may not substitute his lay
opinion for a medical opinion..
62 Fed. Appx. at 842. See also Sisco v. United States Dep’t of Health & Human Servs., 10 F 3d
739, 744 (10th Cir 1993) (chronic fatigue syndrome); McGoffin v. Barnhart, 288 F2d 1248, 12 52
(10th Cir. 2002) (mental impairment); Thomas v. Barnhart, 147 Fed. App. 755, 759-60 (10th Cir
2005) (mental impairment); Ryan v. Commissioner of Social Security, 528 F3d 1194 (9th Cir
2008)(mental impairment); Sanchez v. Astrue 08-cv-560 REB (D. Colo. 12/20/2009); Trichak v.
Colvin, No 13-cv-374WYD (D. Colo. 7/14/2014).
Here, the ALJ erred in application of several legal standards. He improperly considered
credibility of the claimant’s statements in assessing the opinions of treating sources: Ms.
Donaldson, Drs. Weiss, Frieder, Kinney, and Martens and Ms. Gawron, APRN. In addition, he
failed to utilize the appropriate legal test to evaluate the credibility of Mr. Williams’ statements
about his subjective symptoms and to limit application of such credibility determinations as
required by law.
In addition, although the ALJ was correct that Ms. Donaldson, as a psychotherapist (but
not a psychologist) and Ms. Gawron, as a nurse, are not treated as an accepted medical sources.
(20 CFR 404.1513(a)), he erred in rejecting their opinions on that basis. He was required to
evaluate their opinions in accordance with the factors contained in 20 CFR § 404.1527, which
he ALJ did not do.
The ALJ erred as a matter of law in his rejection of Dr. Marten’s opinion on the grounds
that “he is not a treating source.” The record reflects that Ms. Gawron and Dr. Marten signed a
“medical source statement of ability to do work-related activities (mental)” in early 2011 and it
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is undisputed that both were employed by the Jefferson Center for Mental Health who treated
Mr. Williams. But if the ALJ had doubts about Dr. Marten’s role in Mr. Williams’ treatment, he
could have requested additional information or treated it as a non-accepted medical source.
Absent a showing that Dr. Marten knew nothing about Mr. Williams, the ALJ should not have
rejected the opinion.
D. The RFC Determination is not supported by substantial evidence
Assuming, for purposes of argument, that there was no error in application of appropriate
legal standards, the RFC is still not supported by substantial evidence for two reasons. As
noted, the ALJ gave no weight to the functional capacity opinion of any treating provider based
on his credibility assessment of the claimant. He gave significant weight, however, to Dr.
Wharry’s 2009 opinion that Mr. Williams could perform semi-skilled work, which he found to
be consistent with Dr. Valette’s opinion and with “other objective medical evidence of record”.
Unfortunately, Dr. Wharry’s opinion and Dr. Valette’s opinion suffer from the same flaw
that the ALJ ascribes to the opinions of the treating sources – that is, they are based on Mr.
Williams’ statements as to his subjective symptoms. With regard to Dr. Wharry, her opinion is
derived in its entirety from Mr. Williams’ medical records as of 2009, which are necessarily
infected by perceptions of his treating professionals based on his recitation of his symptoms. Dr.
Valette’s opinion is also a product of (and indeed recites) Mr. Williams’ description of his
symptoms. Thus, using the ALJ’s logic, because all treatment and assessment depends on Mr.
Williams’ description of his symptoms, no medical opinion constitutes substantial evidence upon
which an RFC can be based. The Court recognizes that this extends the logic employed by the
ALJ to the absurd, but in doing so hopes to emphasize why credibility assessments have no place
in evaluation of medical opinions.

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In addition, as noted with regard to the error at Step 3, the only evidence that the ALJ
considers relative to Mr. Williams’s functional capacity is dated to 2009. Both Dr. Wharry’s and
Dr. Valette’s opinions were rendered in 2009. Neither were updated, nor did the ALJ obtain
more current medical information in accordance with the Remand Order. The only reference to
Mr. Williams’ functional capabilities during the time period 2010 through 2012, is a conclusory
statement that Dr. Wharry’s opinion is consistent with “other objective medical evidence of
record.” This reference is too general for this Court to review. Furthermore, in light of the
ALJ’s rejection of all other medical evidence, it is hard to imagine to what objective evidence
the ALJ is referring.
CONCLUSION
For the foregoing reasons, the Court REVERSES the determination of the
Commissioner, and REMANDS this matter for consideration in accordance with the findings
and conclusions herein. However, upon remand this matter shall be assigned to Administrative
Law Judge other than the one who conducted both prior hearings on Mr. Williams’ claim.
Dated this 17th day of February, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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