Rath v. Colvin
ORDER by Judge Philip A. Brimmer on 9/30/15. ORDERED: The decision of the Commissioner denying disability benefits to plaintiff is REVERSED and REMANDED for additional proceedings consistent with this opinion. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02207-PAB
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
This matter comes before the Court on the Complaint [Docket No. 1] filed by
plaintiff Yvonne Rath. Plaintiff seeks review of the final decision of defendant Carolyn
W. Colvin (the “Commissioner”) denying her claim for supplemental security income
under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-83c. 1 The
Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C.
On December 3, 2007, plaintiff applied for supplemental security income. R. at
34. Plaintiff alleged that she had been disabled since February 22,1993. Id. After an
initial administrative denial of her claim, plaintiff received a hearing before an
Administrative Law Judge (“ALJ”) on December 14, 2009. Id. On June 24, 2010, the
ALJ issued a decision denying plaintiff’s claim. R. at 43. The ALJ found that plaintiff
The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.
had the following severe impairments: seizure disorder, obesity, depression, bipolar
disorder, and possible schizophrenia. R. at 36. The ALJ concluded that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, R. at 37, and ruled that plaintiff had the residual functional capacity
(“RFC”) to “perform very heavy work with an inability to climb ladders, ropes, or
scaffolds and a need to avoid hazards such as unprotected heights, moving mechanical
parts, and operating motor vehicle[s]. The claimant is limited to only occasional
interactions with coworkers and the general public.” Id. The ALJ concluded that
plaintiff had no past relevant work, but, based upon this RFC and pursuant to Social
Security Rulings 85-15 and 83-14 and the Medical-Vocational Guidelines (the “Grids”),
20 C.F.R. pt. 404, subpt. P, app 2, the ALJ concluded that plaintif f was not disabled as
“there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” R. at 42.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Thus, the ALJ’s decision is the final decision of the Commissioner. Pursuant to multiple
extensions of time granted by the Appeals Counsel, R. 4-27, on August 16, 2013,
plaintiff commenced this action. Docket No. 1.
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “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).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
1. Dr. Quintero
Plaintiff argues that the ALJ erred in weighing the opinion of consultative
physician Dr. Peter Quintero. Docket No. 18 at 23-24.
In assessing a medical opinion, an ALJ must consider the supportability of that
opinion, i.e., the extent to which the medical source provides relevant evidence to
support his or her opinion, 20 C.F.R. § 416.927(c)(3), as well as the extent to which a
medical opinion is consistent with the record as a whole. 20 C.F.R. § 416.927(c)(4).
An ALJ may not, however, “substitut[e] his own medical judgment for that of mental
health professionals.” Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); see also
Pietrunti v. Director, Office of Workers’ Compensation Programs, 119 F.3d 1035, 1042
(2d Cir. 1997) (“an ALJ cannot arbitrarily substitute his own judgment for competent
medical evidence”); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“Common
sense can mislead; lay intuitions about medical phenomena are often wrong.”); Proctor
v. Astrue, 665 F. Supp. 2d 1243, 1255 (D. Colo. 2009).
According to Social Security regulations, in deciding the weight given to any
medical opinion, an ALJ is to consider the following factors:
(1) the length of the treatment relationship and the 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.
Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003); see 20 C.F.R.
§ 416.927(c). The ALJ’s decision must be sufficiently specific so as to make clear the
weight she gave to a medical opinion, but the ALJ is not required to expressly apply
each of the factors in deciding what weight to give a medical opinion. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
On January 8, 2010, Dr. Quintero completed an consultative examination report.
R. at 257-60. Dr. Quintero took plaintiff’s medical history, R. at 257-59, and noted his
examination findings. R. at 259-60. Dr. Quintero’s examination revealed, among other
things, normal motor tone and strength, normal sensation except for decreased pain
perception over her feet, normal coordinate movements, normal gait, “unsteady with
tandem walk,” normal extension, back pain with palpation of the lower spine, lateral
rotation, and flexion of her back and spine, and straight leg raising to 30 degrees
bilaterally. Id. Dr. Quintero’s clinical impressions were: “1. Grand mal seizure disorder
– poorly controlled. 2. Chronic low back pain – etiology not apparent. 3. Peripheral
neuropathy - etiology never determined. 4. Bipolar disorder.” R. at 260. Dr. Quintero
reached the following conclusion:
This patient has no objective impairment with her ability to sit, stand, move
about, carry, or handle objects.
This patient demonstrates no objective evidence of disc disease or arthritis.
She has no evidence of active inflammatory or deformity of her back and
spine. Her gait is normal. The patient has no impairment with fine
On January 22, 2010, Dr. Quintero completed a Medical Source Statement of
Ability to Do Work-Related Activities (Physical) (“medical source document”). R. at 2616
66. Dr. Quintero checked boxes indicating limitations in plaintiff’s ability to lift and
carry, sit, stand, and walk, and operate foot controls, and indicating that plaintiff had
postural and environmental limitations. Id.
The ALJ discussed both Dr. Quintero’s examination report and medical source
document, stating “[t]he undersigned has considered the opinions of Dr. Quintero but
rejects his opinion that the claimant is limited to medium work since his clinical findings
do not support this limitation. Rather, they supported the conclusion that the claimant’s
only physical limits are to avoid activities in which she could get injured because of her
seizures.” R. at 40.
Plaintiff’s argument is somewhat unclear. Plaintiff states that, in discussing Dr.
Quintero’s examination report, “the ALJ wrote, ‘It was opined that the claimant had no
objective impairment with her ability to sit, stand, move about, carry, or handle objects.’”
Docket No. 18 at 23 (citing R. at 40). Plaintiff then goes on to identify various aspects
of Dr. Quintero’s examination report and medical source document in an apparent
attempt to undercut the ALJ’s statement regarding the conclusion of Dr. Quintero’s
examination report. See id. Plaintiff later contends that the ALJ “had no basis f or
accepting part of Dr. Quintero’s opinion and rejecting the portions of the opinion that
may have led to a finding of disabled.” Id. at 24.
An ALJ “is not entitled to pick and choose f rom a medical opinion, using only
those parts that are favorable to a finding of nondisability.” Robinson v. Barnhart, 366
F.3d 1078, 1083 (10th Cir. 2004). “If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the opinion was not adopted.”
SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996). Here, however, the ALJ adequately
explained her decision not to adopt the limitations set forth in the medical source
document and substantial evidence supports her decision. First, to the extent plaintiff
argues that the ALJ failed to resolve internal inconsistencies in Dr. Quintero’s
examination report, see Docket No. 18 at 23 (citing R. at 259-260), plaintiff’s argument
is without merit. Although, as plaintiff points out, Dr. Quintero noted that plaintiff had
decreased pain perception, was unsteady with tandem walk, complained of lower back
pain with palpation, and complained of low back pain with straight leg raises, Dr.
Quintero does not appear to have concluded that such findings would limit plaintiff,
opining that plaintiff “has no objective impairment with her ability to sit, stand, move
about, carry, or handle objects,” has no “inflammatory or deformity of her back and
spine,” has a normal gait, and has no impairment with fine manipulations. R. at 260.
Because the examination report’s overall conclusion was that plaintiff had no functional
limitations, the ALJ was not required to discuss and/or reconcile specific exam findings
set forth in the examination report that allegedly undercut such a conclusion.
Second, to the extent plaintiff argues that the ALJ failed to adequately reconcile
the limitations expressed in the medical source document with her RFC findings, the
Court disagrees. The ALJ explained that the limitations expressed in the medical
source document were unsupported by Dr. Quintero’s clinical findings set forth in the
examination report, with the exception of those limitations pertaining to plaintiff’s seizure
disorder. See R. at 40. Substantial evidence supports this explanation. Based upon
his examination and clinical findings, Dr. Quintero concluded that plaintiff had no
functional impairments related to sitting, standing, walking, moving, carrying, or fine
manipulation. R. at 260. Yet, in the medical source statement completed two weeks
later, Dr. Quintero contradicted those conclusions by indicating, without explanation,
that plaintiff was limited in several of those areas. R. at 261-66. It was well within the
ALJ’s discretion to recognize this discrepancy, credit the former opinion because it was
more consistent with the clinical findings therein, and reject the latter opinion as
unsupported by the former. This is not, therefore, a case where the ALJ rejected an
uncontradicted medical opinion without sufficient explanation. Cf. Haga v. Astrue, 482
F.3d 1205, 1208 (10th Cir. 2007) (“[T]he ALJ did not state that any evidence conflicted
with Dr. Rawlings’ opinion or mental RFC assessment. So it is simply unexplained why
the ALJ adopted some of Dr. Rawlings’ restrictions but not others.”).
Plaintiff suggests that the ALJ should have considered the fact that Dr. Quintero
is a neurological specialist and given his opinions greater weight as a result. Docket
No. 18 at 23. However, the ALJ appears to have given considerable weight to the
opinions Dr. Quintero expressed in the examination report; thus, plaintiff’s argument is
essentially an assertion that the ALJ should have given greater weight to the limitations
Dr. Quintero expressed in the medical source statement. For the reasons discussed
above, the Court rejects this argument. Moreover, the fact that a physician is a
specialist is one of the considerations in evaluating a medical opinions, and ALJ is not
required to expressly apply such consideration. See Oldham, 509 F.3d at 1258.
Plaintiff appears to contend that Dr. Quintero’s medical source document should have
been given greater weight because it is the only medical opinion in the record explicitly
setting forth any physical functional limitations. Docket No. 18 at 24. However, “there
is no requirement in the regulations for a direct correspondence between an RFC
finding and a specific medical opinion on the functional capacity in question.” See
Chapo v. Astrue, 682 F.3d 1285, 1288-89 (10th Cir. 2012). 2 For the foregoing reasons,
plaintiff has failed to identify reversible error in the ALJ’s treatment of Dr. Quintero’s
2. GAF Score
On February 20, 2008, plaintiff underwent a consultative examination with
psychologist Dr. Dianne Guerra. R. at 244. Dr. Guerra diagnosed plaintiff with
“Schizophrenia, provisional,” “Major depressive disorder, mild, recurrent,” “Epilepsy,
neuropathy, client reported,” “Adult antisocial behavior,” and assigned plaintiff a Global
Assessment Functioning (“GAF”) score of 45. R. at 247. Dr. Guerra noted that plaintif f
could manage money and appeared to give full effort during the evaluation, though her
responses were sometimes non-spontaneous and vague, and she complained of
physical pain. Id. Dr. Guerra recommended that plaintiff undergo a medical evaluation.
Id. Dr. Guerra noted that plaintiff had just been released from the Colorado Department
of Corrections and did not have any structure in her life. Id. at 247-48. Dr. Guerra
suggested that plaintiff “ find some sort of structured activities to do during the day if
she is unable to work, perhaps participating in a day program for adults.” R. at 248.
Although plaintiff complained of concentration problems, no such problems presented
during the evaluation and Dr. Guerra stated that vocational training may be beneficial “if
it is determined that her medical conditions do not interfere with her ability to work.” Id.
Dr. Guerra noted that plaintiff did not provide much information regarding her claims of
To the extent plaintiff argues that Dr. Quintero’s opinion should be analyzed as
though it came from a treating source, see Docket No. 18 at 22-23, plaintiff’s argument
is conclusory and unsupported.
auditory hallucinations and depression, but Dr. Guerra suggested that plaintiff undergo
a psychiatric evaluation and participate in regularly scheduled mental health treatment.
Id. In his decision, the ALJ recounted Dr. Guerra’s examination findings, diagnosis, and
conclusions, including noting that Dr. Guerra assigned plaintiff a GAF score of 45. R. at
39. The ALJ did not further discuss Dr. Guerra’s examination finding or GAF score.
Plaintiff argues that the ALJ failed to properly address plaintiff’s February 20,
2008 GAF score. Docket No. 18 at 24-25. An ALJ is not req uired to discuss every
piece of evidence; rather, he must discuss the evidence supporting his decision and
“the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996).
Plaintiff’s GAF score does not satisfy any of these requirements. The ALJ’s decision
does not indicate that she explicitly or implicitly relied on plaintiff’s February 20, 2008
GAF score in support of her decision. Plaintiff’s February 20, 2008 GAF score is not
uncontroverted as to plaintiff’s functional limitations or lack thereof. A GAF score in the
range of 41-50 indicates “‘[s]erious symptoms . . . [or] serious impairment in social,
occupational, or school functioning.’” Langley v. Barnhart, 373 F.3d 1116, 1123 n.3
(10th Cir. 2004) (quoting American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 34 (text revision 4th ed. 2000)). Thus, a GAF score in the
41-50 range does not necessarily relate to the ability to hold a job. Lopez v. Barnhart,
78 F. App’x 675, 678 (10th Cir. 2003) (unpublished). Even assuming that plaintiff’s
February 20, 2008 GAF suggests some inability to hold a job, such a suggestion is
contradicted by Dr. Quintero’s opinion, R. at 260, the March 3, 2008 m ental residual
functional capacity assessment completed by state agency reviewing physician Dr.
Ellen Ryan, R. at 190-92, and to some extent by Dr. Guerra’s other exam findings,
which imply that plaintiff may be able to work. R. at 248. For the same reasons, the
Court cannot conclude that plaintiff’s February 20, 2008 GAF score is significantly
probative so as to require the ALJ to articulate specific reasons why she chose to
discount it. See Butler v. Astrue, 412 F. App’x 144, 147 (10th Cir. 2011) (unpublished)
(concluding that ALJ did not err in failing to explicitly discuss GAF scores of 44, 45, and
46 in part because scores were not uncontroverted and because they “were not linked
to any work-related limitations [and therefore] are not particularly helpful”).
Plaintiff concedes that failure to discuss a GAF score may not, by itself,
constitute reversible error, but argues that, in light of her physical limitations and the
ALJ’s improper weighing of Dr. Quintero’s opinion, the ALJ’s failure to discuss her
February 20, 2008 GAF score was reversible error. Docket No. 18 at 25. However, as
noted above, the ALJ did not fail to properly consider Dr. Quintero’s opinion. Moreover,
plaintiff’s argument constitutes a request to reweigh the evidence, a request which the
Court declines. See Flaherty, 515 F.3d at 1070. Plaintiff therefore fails to identify
reversible error in this aspect of the ALJ’s decision.
Plaintiff generally argues that the ALJ should have included additional limitations
in her RFC finding. Plaintiff’s arguments on this issue are, in large part, conclusory,
unsupported by citation to the record, and lacking in explanation. See Docket No. 18 at
25-26. For example, to the extent plaintiff suggests that the ALJ should have
incorporated in the RFC physical limitations related to neuropathy and back pain,
Docket No. 18 at 25, the ALJ properly evaluated Dr. Quintero’s opinions and the
opinions, as discussed above, expressed in the examination report constitute
substantial evidence in support of the ALJ’s physical RFC finding. Thus, to the extent
plaintiff challenges the physical limitations contained in the ALJ’s RFC finding, plaintiff
fails to identify reversible error.
With respect to plaintiff’s mental limitations, however, upon review of plaintiff’s
suggestion that the ALJ should have incorporated the functional limitations set forth in
the report of state agency reviewing psychiatrist Dr. Ellen Ryan, see id. at 25-26, the
Court concludes that remand is warranted. Dr. Ryan concluded that plaintiff suffered
from depression with psychotic features, R. at 179, and found that plaintiff was only
moderately limited in her ability to maintain social functioning and concentration,
persistence, or pace and that plaintiff was not limited by episodes of decompensation.
R. at 186. Dr. Ryan concluded that plaintiff was moderately limited in her ability to carry
out detailed instructions, maintain attention and concentration, interact appropriately
with the general public, and get along with co-workers, but was otherwise not
significantly limited. R. at 190-91. Dr. Ryan did not credit plaintiff’s previous diagnosis
of schizophrenia due to a lack of explanation in the record, but concluded that plaintif f
can do work requiring little judgment and simple tasks learned in one month and can
appropriately interact with supervisors, but should have less interaction with co-workers
and the public. R. at 192. The ALJ recounted Dr. Ryan’s findings and gave her opinion
great weight. R. at 41. The only mental functional limitation the ALJ included in her
RFC finding, however, was restricting plaintiff to “only occasional interactions with
coworkers and the general public.” R. at 37.
Although the ALJ adopted Dr. Ryan’s conclusion that plaintiff was limited in her
ability to interact with coworkers and the general public, the ALJ’s RFC findings suggest
that the ALJ implicitly rejected Dr. Ryan’s findings that plaintiff was moderately limited in
her ability to carry out detailed instructions and maintain attention and concentration for
extended periods, R. at 190, as well as Dr. Ryan’s conclusion that plaintiff could do
work requiring little judgment and simple tasks that could be learned in one month. R.
at 192. Despite giving Dr. Ryan’s opinion great weight, the ALJ did not explain her
decision to adopt certain of Dr. Ryan’s suggested limitations and implicitly reject others,
and, in so doing, failed to resolve the apparent conflict between Dr. Ryan’s opinion and
the ALJ’s RCF assessment. See SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996);
see Robinson, 366 F.3d at 1083. Because the Court cannot appropriately resolve this
conflict in the context of this appeal, the ALJ must do so on remand.
The Commissioner argues that, because the ALJ’s step five findings limited
plaintiff to unskilled work and because Dr. Ryan’s suggested limitations are not
inconsistent with the mental function required for unskilled work, any failure by the ALJ
to incorporate all of Dr. Ryan’s suggested limitations in her RFC finding is immaterial.
Docket No. 19 at 13. The Commissioner appears to be correct that the ALJ’s findings
at step five necessarily limited plaintiff to unskilled work. The Grids3 reflect only the
availability of jobs at the unskilled level. See Ortiz v. Sec’y of Health & Human Servs.,
890 F.2d 520, 526 (1st Cir. 1989) (“the Grid rules are directly premised on the
availability of jobs at the unskilled level” (citing 20 C.F.R. pt. 404, subpt. P, app. 2)).
The grids consist of tables addressing whether a claimant is disabled based
upon an RFC category (e.g., sedentary, light) as well as claimant’s age, education, and
work experience. See 20 C.F.R. pt. 404, subpt. P, app. 2.
Thus, by utilizing the Grids and finding that plaintiff “has not had a substantial loss in
the ability to meet one of the mental activities required by competitive unskilled work,”
the ALJ appears to have limited plaintiff to unskilled jobs. R. at 42. However, as the
Tenth Circuit has recognized, there is a difference between issues of skill transfer and
mental functions, “which are not skills, but, rather, general prerequisites for most work
at any skill level.” Chapo, 682 F.3d at 1290 n.3. “A limitation to ‘simple work’ or
‘unskilled jobs’ is generally insufficient to address a claimant’s mental impairments.”
Groberg v. Astrue, 505 F. App’x 763, 770 (10th Cir. 2012) (unpublished). Nonetheless,
there are exceptions to this general rule. SSR 85-15 states that the basic dem ands of
competitive, remunerative, unskilled work include the abilities (on a sustained
basis) to understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work situations;
and to deal with changes in a routine work setting. A substantial loss of
ability to meet any of these basic work-related activities would severely limit
the potential occupational base.
SSR 85-15, 1985 WL 56857, at *4 (1985). A limitation to unskilled tasks can therefore
be used “as shorthand for the specific mental abilities described in SSR 85-15.” See
Jaramillo v. Colvin, 576 F. App’x 870, 875 (10th Cir. 2014) (unpublished). Even if the
Court were to assume that, by limiting plaintiff to unskilled work, the ALJ implicitly
limited plaintiff to the specific mental demands of unskilled work as described in SSR
85-15, inconsistencies persist between those mental demands and Dr. Ryan’s opinion.
In Jaramillo, the ALJ gave great weight to the opinion of examining psychiatrist
Dr. Charles Mellon, who concluded that the claimant was moderately limited in his
ability to carry out instructions, attend and concentrate, and work without supervision,
but otherwise had no mental limitations. 576 F. App’x at 872. The ALJ did not explicitly
incorporate Dr. Mellon’s suggested limitations into the RFC, instead concluding that
plaintiff was limited to simple, routine, repetitive and unskilled tasks. 576 F. App’x at
872. Based upon this RFC, the vocational expert (“VE”) identified three jobs that the
claimant could perform. Id. After concluding that the ALJ intended to use the phrase
“unskilled tasks” as a shorthand for the mental functions set forth in SSR 85-15, the
Tenth Circuit found that “[n]one of the basic mental abilities of unskilled work described
in SSR 85-15 captures any of the three moderate limitations Dr. Mellon found . . . nor
do the additional limitations to simple, routine, and repetitive tasks.” Id. at 876. As a
result, the RFC the ALJ related to the VE “did not clearly relate the moderate
impairments Dr. Mellon found. Rather, the ALJ was required to express those
impairments ‘in terms of work-related functions’ or ‘[w]ork related mental activities.’” Id.
(quoting SSR 96-8p, 1996 WL 374184, at *6 (July 2, 1996)).
Here, the mental abilities described in SSR 85-15 do not capture the m oderate
limitations Dr. Ryan found in plaintiff’s ability to maintain attention and concentration
and Dr. Ryan’s opinion that plaintiff could do work requiring “little judgment.” See R at
190, 192; see also SSR 96-8p, 1996 WL 374184, at *6 (“Work-related mental activities
generally required by competitive, remunerative work include the abilities to:
understand, carry out, and remember instructions; use judgment in making work-related
decisions; respond appropriately to supervision, co-workers and work situations; and
deal with changes in a routine work setting.”).4 As a result, the ALJ’s determination at
Dr. Ryan opined that plaintiff could perform “simple tasks learned in 1 month,”
R. at 192, but it is not entirely clear whether this opinion relates to skill transfer or
mental functions. Chapo, 682 F.3d at 1290 n.3. Assuming it relates to the latter, such
an opinion would appear to conflict with the mental abilities described in SSR 85-15.
step five that plaintiff could perform unskilled work is not supported by substantial
evidence. See Jaramillo, 576 F. App’x at 876.5
On remand, the ALJ may wish to resolve an additional conflict between her RFC
finding and implicit conclusion that plaintiff can perform unskilled work. Although SSR
85-15 states that unskilled work requires the mental ability to respond appropriately to
coworkers, the ALJ’s RFC states that plaintiff is limited in this regard. In light of this
conflict, it is not clear whether, at step five, the ALJ appropriately relied on the Grids or
should have instead relied on the testimony of a VE. The Court does not reach the
remaining issues raised in plaintiff’s brief, as the ALJ’s analysis on remand may impact
how such issues will be resolved. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th
Cir. 2003) (“We will not reach the remaining issues raised by appellant because they
may be affected by the ALJ’s treatment of this case on remand.”).6
On remand the ALJ is directed to reevaluate plaintiff’s mental limitations, resolve
any inconsistencies between Dr. Ryan’s opinion and the RFC, and reevaluate her
conclusion at step five. In addition, the ALJ shall reevaluate her finding that plaintiff is
“frequently noncompliant in taking her medications,” R. at 41, in light of SSR 96-7p,
The parties completed briefing on this case before Jaramillo was decided; thus,
neither party addresses it.
In her brief’s statement of facts, plaintiff criticizes the ALJ’s credibility
determination, but does not raise the issue in the argument section of her brief or
otherwise assert that the ALJ’s credibility assessment constitutes reversible error. See
Docket No. 18 at 19. Thus, the Court does not find that plaintiff has appropriately
raised an alleged error in the ALJ’s credibility determination and will not consider the
1996 WL 374186, at *7-*8 (July 2, 1996) (“the adjudicator must not draw any inferences
about an individual’s symptoms and their functional effects from a failure to seek or
pursue regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical treatment”), and any
evidence in the record that plaintiff could not afford medications. See, e.g., R. at 59.
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner denying disability benefits to
plaintiff is REVERSED and REMANDED for additional proceedings consistent with this
DATED September 30, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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