Harman v. Colvin

Filing 26

ORDER re: 9 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin. IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not disabled is AFFIRMED. IT IS FURTHER ORDERED that each party shall bear its own costs and attorneys fees, by Magistrate Judge Kristen L. Mix on 9/29/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00349-KLM
MARK A. HARMAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#9],2 filed on May 8, 2014, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Carolyn Colvin, Acting Commissioner of the Social Security
Administration (“Defendant” or “Commissioner”) denying Plaintiff’s claim for supplemental
security income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq. (the “Act”). See generally Compl. [#1]. On July 9, 2014, Plaintiff filed an
Opening Brief [#17] (the “Brief”). Defendant filed a Response [#20] in opposition and
Plaintiff filed a Reply [#21]. The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g). The Court has reviewed the entire case file and the

1

The parties consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c)
and D.C.COLO.LCivR 72.2. See Consent Form [#24]; Order of Reference [#25].
2

“[#9]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

1

applicable law and is sufficiently advised in the premises. For the reasons set forth below,
the decision of the Commissioner is AFFIRMED.
I. Factual and Procedural Background
Plaintiff alleges that he became disabled on August 16, 1999, at the age of thirtytwo. Tr. 218.3 On April 27, 20094, he filed for Title XVI supplemental security income. Tr.
218. On October 24, 2011, an Administrative Law Judge (the “ALJ”) issued an unfavorable
decision. Tr. 76-85. Plaintiff appealed the decision to the Appeals Council, which vacated
the October 24, 2011 decision and remanded for further proceedings. Tr. 91-96. On
October 18, 2012, the ALJ entered a second decision, finding that Plaintiff was “not
disabled under section 1614(a)(3)(A) of the Social Security Act.” Tr. 22.
The ALJ determined that Plaintiff had not engaged in substantial gainful activity
since May 27, 2008 (the date of Plaintiff’s initial application for benefits). Tr. 12. The ALJ
found that Plaintiff suffers from the following severe impairments: (1) mild degenerative
changes of the lumbar spine; left hand pain with findings of reduced grip strength; a major
depressive disorder; an anxiety disorder; a learning disorder; and borderline intellectual
functioning. Tr. 12. However, the ALJ also found that these impairments, individually or
in combination, do not meet or medically equal “the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and

3

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 9-1, 9-2, 9-3, 9-4, 9-5, 9-6, and 9-7 by the sequential transcript numbers instead of the
separate docket numbers.
4

Plaintiff previously filed an application for supplemental security income benefits on May
27, 2008. Tr. 10. That application was reopened by the ALJ and discussed in his October 18, 2012
decision. Tr. 10 (citing 20 § C.F.R. 416.1488).

2

416.926).” Tr. 13. The ALJ next concluded that Plaintiff has the residual functional
capacity (“RFC”)
to perform medium work as defined in 20 CFR 416.967(c) except he should
be allowed to alternate between sitting, standing and walking, every 30 to 60
minutes; he should never climb ladders, ropes or scaffolds and should
occasionally [climb] stairs and ramps, balance, stoop, kneel, crouch or crawl;
he should avoid concentrated exposure to extreme cold, vibration and
hazards; the work should be unskilled (SVP 1 or 25); and he should have
decreased interpersonal contact with the general public, coworkers and
supervisors because he is moderately impaired with regard to these social
interactions, and he would be moderately impaired in the ability to maintain
attention and concentration for extended periods of time.
Tr. 14. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the
ALJ found that Plaintiff was unable to perform any past relevant work but that “there are
jobs that exist in significant numbers in the national economy that [Plaintiff] can perform .
. . .” Tr. 20-21. Specifically, based on the testimony of the VE, the ALJ concluded that
Plaintiff could perform the representative occupations of cleaner, hand packer, and
machine packager. Tr. 21. He therefore found Plaintiff not disabled at step five of the
sequential evaluation. Tr. 22. The ALJ’s decision has become the final decision of the
Commissioner for purposes of judicial review. 20 C.F.R. § 416.1481.
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such

5

“SVP of 2" refers to a “specific vocational preparation” of up to 30 days, while “SVP of 1"
refers to a short demonstration. This is the amount of lapsed time required by a typical worker to
learn techniques, acquire the information, and develop the facility needed for average performance
in a specific job. (Dictionary of Occupational Titles, United States Department of Labor, 4th Edition,
Revised 1991). (footnote in original).

3

benefits, “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.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.

42 U.S.C. §§ 423(d)(3),

423(d)(5)(A).
“When a claimant has one or more severe impairments the Social Security [Act]
requires the [Commissioner] to consider the combined effects of the impairments in making
a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)
(citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or
combination of impairments does not require a finding that an individual is disabled within
the meaning of the Act. To be disabling, the claimant’s condition must be so functionally
limiting as to preclude any substantial gainful activity for at least twelve consecutive
months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
4

applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
A.

Legal Standard
The Social Security Administration uses a five-step framework to determine whether

a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through
four, and if the claimant fails at any of these steps, consideration of any subsequent steps
is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“If a determination
can be made at any of the steps that a claimant is or is not disabled, evaluation under a
subsequent step is not necessary.”). The Commissioner bears the burden of proof at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
5

perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next,
at step three, the ALJ considers whether a claimant’s medically severe impairments are
equivalent to a condition “listed in the appendix of the relevant disability regulation,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent [him] from performing [his] past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether [he] possesses the sufficient [RFC] to perform
other work in the national economy.” Id.
B.

Substantial Evidence
An ALJ must consider all evidence and explain why he or she finds a claimant not

disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence “must be based upon the
record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “if the ALJ failed to apply the
6

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
Plaintiff requests judicial review of the ALJ’s decision denying him supplemental
security income. Brief [#17] at 12. Specifically, Plaintiff argues that: (1) the ALJ’s definition
of the term “moderate” is unsupported by substantial evidence, (2) the ALJ improperly
rejected the opinions of Carlos Rodriguez, Ph.D. (“Dr. Rodriguez”) and Richard Madsen,
Ph.D. (“Dr. Madsen”), and (3) the ALJ failed to account for Plaintiff’s alleged reading and
writing limitations. Id. at 18. The Court addresses each argument in turn.
A.

The ALJ’s Definition of the Term “Moderate”
As Plaintiff explains, as part of the RFC determination, the ALJ “made a finding that

[P]laintiff is moderately impaired with regard to social interactions and in [his] ability to
maintain attention and concentration for extended periods of time.” Brief [#17] at 22.
Specifically, the ALJ explained
[Plaintiff’s] desire for social avoidance and his lack of hygiene would
necessitate decreased interpersonal contact at a moderate degree of
impairment. The variable mental status testing results and complaints of
anxiety are the basis for the moderate degree of impairment in the ability to
maintain attention and concentration for extended periods of
time—conclusions which are consistent with the most severe limitations
imposed by any State agency psychological expert [ ]. When using the
“moderate” modifier, the undersigned defines this term to mean [Plaintiff]
would have more than mild restrictions in these particular functions, such that
he would be subject to difficulties for up to 15% of the workday, but he would
retain the capacity to perform those functions.
Tr. 20. Plaintiff argues that the ALJ came up with the number “15%” “out of thin air” and
that this number is not supported by substantial evidence in the record. Brief [#17] at 23.
In short, as Plaintiff clarifies in his Reply, Plaintiff’s argument is that the ALJ did not link his
7

conclusion to evidence from the record. Reply [#21] at 6 (“It is unclear from the decision
what evidence formed the basis of the ALJ’s conclusion that [P]laintiff would have
difficulties for 15% of the workday, but no less or no more.”).
The ALJ “is charged with determining a claimant’s RFC from the medical records.”
Chapo v. Astrue, 682 F.3d 1285, 1289 (10th Cir. 2012). An RFC is “an administrative
assessment of the extent to which an individual’s medically determinable impairment(s),
including any related symptoms such as pain, may cause physical or mental limitations or
restrictions that may affect his or her capacity to do work related physical or mental
activities.” SSR 96-8p, 1996 WL 374184 at * 2. It is assessed “based on all of the relevant
evidence in the case record, including information about the individual’s symptoms and any
‘medical source statements.’” Id. “[T]here 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.” Chapo, 682 F.3d at 1288.
Recognizing that “a moderate impairment is not the same as no impairment at all,”
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.2007), and “supports the conclusion that the
individual’s capacity to perform the activity is impaired,” the Tenth Circuit has required that
such limitations be accounted for with precision in the ultimate determination of the
claimant’s residual functional capacity. Jaramillo v. Colvin, 576 F.App’x. 870, 876 (10th Cir.
2014) (internal quotation marks and citation omitted). This requirement in turn “demands
that the ALJ express plaintiff’s moderate impairments in mental functioning ‘in terms of
work-related functions’ or ‘[w]ork-related mental activities.’” Id. at 876 (quoting Social
Security Ruling 96-8p, 1996 WL 374184 at *6 (SSA July 2, 1996)). A residual functional
capacity expressed as being limited only to unskilled work requiring simple, repetitive tasks
8

is insufficient to meet these requirements. Id.
In this case, the ALJ explained what the term “moderate” meant in terms of Plaintiff’s
RFC in compliance with the Tenth Circuit case law explained above. As the ALJ explained,
in the RFC “moderate” “mean[s] [Plaintiff] would have more than mild restrictions in these
particular functions, such that he would be subject to difficulties for up to 15% of the
workday, but he would retain the capacity to perform those functions.” Tr. 20. Contrary to
Plaintiff’s argument, this definition means that Plaintiff “would be subject to difficulties,” Tr.
20, not that Plaintiff would be off task or unable to perform the job at hand. See Stephens
v. Colvin, 2015 WL 3430586, at *6 (N.D. Cal. May 28, 2015) (“Put differently, being ‘off
task’ and an inability to maintain ‘concentration, persistence or pace’ are not the same
thing. A person could be focused on the task at hand for an entire hour, for example, and
complete only 85% of a project due to reduced pace; this does necessarily mean that the
person was ‘off task’ for 15% of the time.”). Further, contrary to Plaintiff’s assertion, the
ALJ based the RFC on the evidence in the record. In reaching the RFC, the ALJ carefully
summarized the evidence in the record, including both the physical and mental limitations
alleged by Plaintiff; discussed the credibility of the evidence; and explicitly explained his
conclusions regarding Plaintiff’s mental limitations. Tr. 14-20. For example, with regard
to the mental limitations taken into account in the RFC, the ALJ summarized various part
of the record and stated:
the evidence of mental functional difficulties also fails to persuade the
Administrative Law Judge that the claimant lacks the capacity to perform less
complex and less socially engaged tasks on a sustained basis. The most
consistent observations have been of poor hygiene and a blunted or
depressed presentation—which were taken into consideration when
determining the residual functional capacity (Exhs. B6F; B12F; B19F; B21F;
B24F). But there is no intervening evidence to establish whether any of the
9

claimant’s contentions regarding his depression and anxiety symptoms
continue when secondary gain motivation is not at issue. Despite
observations of poor hygiene and allegations of homelessness, there are no
indications he requires supervision to carry out his activities of daily living,
that they are accomplished inappropriately, or that he is unable to sustain
them (Id.). He reports he is socially avoidant and irritable, and his responses
on mental status examination show impaired social judgment, but the
claimant also reports that he has maintained a girlfriend for over a decade.
Interviewers describe him as cooperative and appropriate, and the record
shows he is able to travel within the community and act independently (Exhs.
B6F; B12F; B19F; B21F; B24F). During the hearings, the undersigned
observed that he demonstrated no abnormal social behaviors and was able
to understand and follow the proceedings and all lines of questioning. The
claimant has also shown the capacity to function in an appropriate manner
during consultative evaluations, where there would clearly be more tension.
As for cognitive functioning, his speech was described as “slow” in June
2008, when his intellectual functioning was placed within the borderline
range, but his performance on mental status testing has been erratic,
showing correct responses to only 19 of 30 questions in April 2010, but to 27
of 30 questions in August 2011 and 26 of 30 questions in August 2012 (Exh.
B5F; B12F; B21F; B24F). While the undersigned finds a basis to assign
some degree of limitations in social interactions and in maintaining attention
and focus, there is insufficient basis to conclude the claimant is incapable of
performing the basic mental functional capacities of understanding,
remembering and carrying out instructions, making judgments, responding
appropriately to supervisors, coworkers and usual work situations, and
dealing with changes in work setting.
Tr. 16. The last sentence makes clear that this is the ALJ’s basis for finding “some degree
of limitations” and he later states that this is a moderate limitation defined “to mean
[Plaintiff] would have more than mild restrictions in these particular functions, such that he
would be subject to difficulties for up to 15% of the workday, but he would retain the
capacity to perform those functions.”

Tr. 20.

In addition, directly before defining

“moderate,” the ALJ states that “[t]he variable mental status testing results and complaints
of anxiety are the basis for the moderate degree of impairment in the ability to maintain
attention and concentration for extended periods of time—conclusions which are consistent
with the most severe limitations imposed by any State agency psychological expert [ ].” Tr.
10

20. Based on all of the above information provided by the ALJ in reaching his RFC,
including the definition of “moderate,” the Court concludes that the RFC is supported by
substantial evidence in the record. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)
(“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” (internal quotation marks omitted)). As a result, the
Court concludes that the ALJ has not committed reversible error in his definition of the term
“moderate.”
A.

Whether the ALJ Failed to Properly Weigh the Opinions of Dr. Rodriguez and
Dr. Madsen
Plaintiff argues that the ALJ failed to adequately weigh the opinions of Dr. Rodriguez

and Dr. Madsen. Brief [#17] at 25-38.
1.

Dr. Rodriguez

With regard to Dr. Rodriguez, Plaintiff maintains that the ALJ rejected this opinion
“because of inconsistencies between his narrative report and testing results, and [P]laintiff’s
lack of treatment.” Id. at 26-27. Plaintiff argues that “[n]either of these is a valid reason to
reject the examining physician’s opinion. Id. at 27.
As an initial matter, the Court notes that the ALJ concluded that Plaintiff “has not
established an ongoing treatment relationship with this doctor, he merely sees him when
he needs to obtain documentation of some type of ongoing disability for State assistance,
or at the request of his attorney.” Tr. 19.6 Plaintiff does not argue that Dr. Rodriguez is a

6

Plaintiff testified that he visits Dr. Rodriguez as ordered by Social Services “to get
recertification.” Tr. 52.

11

treating doctor.7 See generally Brief [#17]. Nonetheless, the opinions of “other sources”
such as Dr. Rodriguez still must be considered, applying the same factors as are generally
used to assess treating source opinions. Social Security Ruling 06-03p, 2006 WL 2329939
at *4 (SSA Aug. 9, 2006); 20 C.F.R. § 416.927(c)(1)-(6). Among these factors are whether
the opinion is supported by relevant evidence and whether the opinion is consistent with
and supported by the other evidence of record. See 20 C.F.R. § 404.1527(c)(3)-(4) (“The
more a medical source presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight we will give that opinion. . . .
Generally, the more consistent an opinion is with the record as a whole, the more weight
we will give to that opinion.”). The regulations do not require the ALJ to discuss all of the
factors. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Here, the ALJ specifically noted that there were “significant inconsistencies between
the narrative and test results when compared to the statement of limitations, the lack of
intervening records, and the absence of even minimal medical management for allegedly
severe symptoms of anxiety and depression.” Tr. 19.

The Court “will not reweigh the

evidence or substitute [its] judgment for the Commissioner’s . . . [and] may not displace the
agency’s choice between two fairly conflicting views, even though the court would justifiably
have made a different choice.” Adams, 659 F.3d at 1301. However, the Court notes that

7

A treating source is a medical professional capable of providing a detailed and longitudinal
picture of a claimant’s medical impairments. 20 C.F.R. § 404.1527(c)(2). It is a relationship that
requires both duration and frequency. Doyal v. Barnhart, 331 F.3d 758, 763 (10th Cir. 2003); see
also Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (“The treating physician doctrine is based
on the assumption that a medical professional who has dealt with a claimant and his maladies over
a long period of time will have a deeper insight into the medical condition of the claimant than will
a person who has examined a claimant but once, or who has only seen the claimant's medical
records.”).

12

the reasons given for the ALJ’s finding of “significant inconsistencies” are supported by the
record.
For example, Dr. Rodriguez met with Plaintiff once in 2011 and twice in 2012 with
no intervening interviews. Tr. 499. In August 2011, Dr. Rodriguez reported that Plaintiff
“talked to the examiner freely and rapport was easily established.” Tr. 485. Dr. Rodriguez
further reported that Plaintiff “did not display any unusual or bizarre behaviors during this
evaluation. His attitude towards this evaluation is appropriate and he is cooperative.” Tr.
485-86. Again, in August 2012, Dr. Rodriguez used the exact same language to describe
their interaction. Tr. 493-94. However, on the Residual Functional Capacity Evaluation
from completed by Dr. Rodriguez after the August 2011 examination, he noted that Plaintiff
had “marked8” or “extreme9” limitations with regard to four of the five social interaction
abilities evaluated. Tr. 491. In August 2012, he indicated that Plaintiff had “marked” or
“extreme” limitations in each of the five abilities evaluated. Tr. 499. This contradiction
between Dr. Rodriguez’s report of his own experience interacting with Plaintiff and his
conclusion regarding Plaintiff’s social limitations was specifically noted by the ALJ. Tr. 19
(“The objective data shows variable performance on memory testing and problems with
social judgment, but also depict the claimant as cooperative, appropriate and able to easily
establish rapport, and without indication of neurocognititve impairment based upon Folstein
testing. (Exhs. B21F; B23F).”). While Plaintiff argues that the ALJ’s conclusion “that

8

The form defines “marked” as follows: “Serious limitations in this area. The ability to
function in this area is severely limited but not precluded.” Tr. 498.
9

The form defines “extreme” as follows: “Severe limitations in this area. No useful ability
to function in this area.” Tr. 498.

13

[P]laintiff’s ability to easily establish a rapport with Dr. Rodriguez” was incorrect, it is not the
role of the Court to weigh the evidence. Brief [#17] at 29. Plaintiff goes to great pains to
explain that Plaintiff met with Dr. Rodriguez several times prior to the August 2012
evaluation. While this may be true10, the Court cannot substitute its own analysis of the
facts presented, it can only review “whether the [ALJ’s] factual findings are supported by
substantial evidence in the record and whether the correct legal standards were applied.”
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Here, Dr. Rodriguez’s report of his
own interaction with Plaintiff does undermine his conclusion that Plaintiff has limited ability
to interact socially.
Plaintiff also argues that it was improper for the ALJ to “reject Dr. Rodriguez’s
opinion because it was inconsistent with [P]laintiff’s lack of treatment.” Brief [#17] at 30.
As noted above, the ALJ “accord[ed] no weight to Dr. Rodriguez’s assessments” “[g]iven
that there were “significant inconsistencies between the narrative and test results when
compared to the statement of limitations, the lack of intervening records, and the absence
of even minimal medical management for allegedly severe symptoms of anxiety and
depression.” Tr. 19. In challenging the last portion of the ALJ’s conclusion regarding Dr.
Rodriguez’s opinion, Plaintiff cites to Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.
1993), which held that
before the ALJ may rely on the claimant’s failure to pursue treatment or take
medication as support for his determination of noncredibility, he or she
should consider (1) whether the treatment at issue would restore claimant’s

10

According to Dr. Rodriguez’s notes, he met with Plaintiff on the following dates: August
12, 1999; August 7, 2000; October 10, 2001; September 19, 2002; February 28, 2007; February
25, 2008; March 21, 2009; January 28, 2010; May 3, 2011; July 28, 2012; and August 20, 2012.
Tr. 499.

14

ability to work; (2) whether the treatment was prescribed; (3) whether the
treatment was refused; and, if so, (4) whether the refusal was without
justifiable excuse.
987 F.2d 1482, 1490 (internal quotation marks and citations omitted). Thompson focused
on the ALJ’s credibility determination of the claimant, not the weight afforded to an expert
opinion. Id. Here, in contrast, the ALJ made clear that he “accords no weight to Dr.
Rodriguez’s assessments” based on several considerations, including “the absence of even
minimal medical management for allegedly severe symptoms of anxiety and depression.”
Tr. 19. This does not implicate Thompson. Plaintiff offers no argument that it was improper
for the ALJ to reject Dr. Rodriguez’s opinion for this reason, among the other reasons
provided. As a result, the Court concludes that the ALJ has not committed reversible error
with respect to his treatment of Dr. Rodriguez’s opinions. Glenn v. Shalala, 21 F.3d 983,
988 (10th Cir. 1994) (explaining that the Court must affirm if, considering the evidence as
a whole, there is sufficient evidence which a reasonable mind might accept as adequate
to support a conclusion).
B.

Dr. Madsen

With regard to Dr. Madsen’s opinion, Plaintiff argues that “[t]he ALJ essentially
rejected Dr. Madsen’s opinion because he found it ‘vague and not sufficiently defined.’”
Brief [#17] at 32. Plaintiff argues that “[t]he ALJ cannot simply reject the opinion of his own
consultative examiner because his opinion is vague or lacks sufficient definition. Rather,
the ALJ has an obligation to properly develop the record by recontacting Dr. Madsen.” Id.
The ALJ did conclude that Dr. Madsen’s analysis was “vague and [was] not sufficiently
defined for [the ALJ] to determine functional capacity.” Tr. 18. As a result, the ALJ
afforded “little weight” to the opinion “and only to the extent [Dr. Madsen] indicates there
15

would be some declination of function in the areas of focus, concentration and social
interaction, which are supported by the claimant’s statements to consulting sources and his
variable performance on mental status testing (Exhs. B6F; B12F; B19F; B24F).” Tr. 18-19.
Pursuant to 20 C.F.R. § 416.919p, the Commissioner reviews the report of a
consultative examination to determine whether specific information has been furnished.
20 C.F.R. § 416.919p(a). If the report is “inadequate or incomplete,” the Commissioner will
contact the medical source who performed the consultative examination, give an
explanation of the agency’s evidentiary needs, and ask the medical source to furnish the
missing information or prepare a revised report.

Id. § 416.919p(b).

A complete

consultative examination report includes the following: (1) the claimant’s major or chief
complaints; (2) a detailed description of the claimant’s history of the major complaints; (3)
a description of pertinent positive and negative detailed findings based on the history,
examination, and lab tests related to the major complaints and any other abnormalities or
lack thereof found during the exam or lab tests; (4) the results of the lab tests; (5) the
diagnosis and prognosis for the claimant’s impairment; (6) a statement about what the
claimant can still do despite the impairments; and (7) an explanation or comment by the
medical source on the claimant’s major complaints. Id. § 416.919n(c)(1)-(7). According
to the applicable regulations, the ALJ must only request a revised medical opinion if the
original one is “inadequate or incomplete.” 20 C.F.R. § 416.919p(b). Here, the ALJ did not
find Dr. Madsen’s opinion to be either inadequate nor incomplete, he simply gave it less
weight, while still relying on certain aspects of it, because he found it “vague” and “not
sufficiently defined.” Tr. 18. Although Plaintiff disagrees with the ALJ’s decision to give
less weight to Dr. Madsen’s opinion, the ALJ was permitted to do so. See Chavez v.
16

Colvin, 2015 WL 1733767 at *14 (N.D. Ind. Apr. 15, 2015) (“The ALJ found Dr. Shamberg's
statements regarding Chavez’s abilities despite her impairments vague and non-specific.
Because a report is not rendered incomplete if it is missing a statement regarding the
claimant’s abilities despite her impairments, the ALJ was not required to contact Dr.
Shamberg to revise his report.”); see also Haddock v. Astrue, No. 09-cv-01922-LTB, 2010
WL 2197403, at *6 (D. Colo. May 28, 2010) (remanding on other grounds and noting that
“the ALJ did not err in failing to seek further clarification from Dr. Madsen for his opinions
since Dr. Madsen’s report was neither incomplete nor inadequate, see 20 C.F.R. §
416.919p(b), but merely inconsistent with other evidence in the record.).
To the extent Plaintiff argues that the ALJ committed legal error by not fully and fairly
developing the record because he did not contact Dr. Madsen to obtain an additional report,
Plaintiff’s argument also fails because, as explained above, Dr. Madsen’s report was not
found to be “incomplete or inadequate.” Although the nonadversarial nature of social
security proceedings “imposes a duty on the ALJ ‘to ensure that an adequate record is
developed . . . consistent with the issues raise,’” the ALJ met that duty here. Jimenez v.
Astrue, 385 F. App'x 785, 788 (10th Cir. 2010) (quoting Flaherty v. Astrue, 515 F.3d 1067,
1071 (10th Cir. 2007)). Furthermore, in cases such as this one, where Plaintiff was
represented by an attorney at the disability hearing, “the ALJ should ordinarily be entitled
to rely on the claimant’s counsel to structure and present claimant’s case in a way that the
claimant's claims are adequately explored,” and the ALJ “may ordinarily require counsel to
identify the issue or issues requiring further development.” Hawkins v. Chater, 113 F.3d
1162, 1167 (10th Cir. 1997). In this case there were two hearings held by the ALJ and
Plaintiff's counsel made no indication at either hearing that further development of the
17

record was necessary to decide the matter. Tr. 26, 47. In addition, even in the absence
of Plaintiff’s attorney raising this issue, “‘[t]he standard’ for determining whether the ALJ
fully developed the record ‘is one of reasonable good judgment.’” Segura v. Barnhart, 148
F. App'x 707, 710 (10th Cir. 2005) (quoting Hawkins v. Chater, 113 F.3d 1162, 1168 (10th
Cir. 1997)). The ALJ's “starting place must be the presence of some objective medical
evidence in the record suggesting [the] existence of a condition which could have a material
impact on the disability decision requiring further investigation.” Howard v. Barnhart, 379
F.3d 945, 949 (10th Cir. 2004) (citing Hawkins, 113 F.3d at 1167) (emphasis in Howard).
If there is sufficient information to make a disability determination, the record is sufficiently
developed.

Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008); 20 C.F.R. §

404.1520b. Here, even with a vague report from Dr. Madsen, there is no argument from
Plaintiff regarding the existence of a condition that required further development. The ALJ's
findings are supported by substantial evidence and Plaintiff has not shown that the ALJ
committed a legal error. Therefore, the Court finds that the ALJ has not committed
reversible error with respect to his treatment of Dr. Madsen’s opinion. Glenn, 21 F.3d at
988.
C.

Dr. Wharry

Plaintiff argues that it was improper for the ALJ to use “evidence from the examining
physician reports to bolster Dr. Wharry’s opinion despite rejecting those opinions . . . .”
Brief [#17] at 34. Plaintiff also maintains that the ALJ “did not offer a valid reason for giving
more weight to the nonexamining physician’s opinion than was given to the examining
physicians[’].” Id. With regard to Dr. Wharry, the ALJ found that her opinion was
well supported and consistent with the record as a whole, based on rare,
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subjective complaints of social avoidance, impaired social judgment on
mental status examinations, and observations of poor hygiene, but with
maintenance of appropriate interaction with all interviewers, and the ability
to travel within the community and interact sufficiently to obtain services and
meals (Exhs. B5F; B6F; B12F; B19F; B21F; B24F).
Tr. 19. As a result, the ALJ “accorded great weight to the opinion of” Dr. Wharry. Tr. 19.
As Plaintiff notes, Dr. Wharry was an examining psychologist, not a treating doctor. Her
assessment, therefore, was based on the entire record provided to her as of the date of her
assessment, April 23, 2010. Tr. 353. Therefore, it is not possible that Dr. Wharry relied on
either of Dr. Rodriguez’s assessments concluded in August 2011 and August 2012,11 which
were rejected by the ALJ, because they were completed after Dr. Wharry rendered her
opinion.12 With regard to Plaintiff’s argument that it was improper for the ALJ to give Dr.
Wharry’s opinion “great weight,” Tr. 19, even though the ALJ allegedly “rejected” Dr.
Rodriguez’s opinion, as explained above, the ALJ gave Dr. Rodriguez’s opinion “little
weight,” he did not reject it in its entirety. Tr. 18.
Plaintiff also appears to argue that because Dr. Wharry was a nonexamining doctor,
her opinion should not have been afforded more weight than an examining doctor. Brief
[#17] at 35. Plaintiff is correct to note that the type of evidence available to an expert

11

To the extent Plaintiff believes that Dr. Wharry’s opinion relied on Dr. Rodriguez’s and
Dr. Madsens’ opinions because the ALJ cited to records provided by them when explaining why he
afforded “great weight” to Dr. Wharry’s opinion, the ALJ’s analysis does not imply that Dr. Wharry
did rely on them. Instead, the ALJ cited to Exhibits B6F, B12F, B19F, B21F, and B24F in support
of his statement that Dr. Wharry’s conclusion was consistent with the record as a whole. This, for
example, relates to the ALJ’s conclusion that Plaintiff “interact[ed] sufficiently to obtain services,”
Tr. 19, which is reflected in those exhibits because they show Plaintiff obtaining services from Dr.
Rodriguez.
12

As Defendant notes, “Plaintiff appears to only challenge the ALJ’s findings regarding the
2011 and 2012 mental functional capacity forms” completed by Dr. Rodriguez. Response [#20] at
13 n.14.

19

should be taken into account when considering the weight to be given to that doctor’s
opinion. For example, the Tenth Circuit has explained that
The opinion of an examining physician is generally entitled to less weight
than that of a treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of all. 20 C.F.R. §§
404.1527(d)(1), (2) and 416.927(1), (2); Soc. Sec. R. 96–6p, 1996 WL
374180, at *2.
Robinson v. Barhart, 366 F.3d 1078, at 1084 (10th Cir. 2004). However, as the Tenth
Circuit further explained, the ALJ can assign less or more weight to any expert opinion so
long as the ALJ provides “a legally sufficient explanation for doing so.” Id. The ALJ
provided such an explanation in this case. As noted above, the ALJ explained that Dr.
Wharry’s opinion was “well supported and consistent with the record as a whole” and then
provided specific citations to the record. Tr. 19. For these reasons, the Court rejects
Plaintiff’s argument that “[t]he ALJ improperly afforded more weight to Dr. Wharry’s opinion
than was given to the opinions of Drs. Rodriguez and Madsen without a compelling
reason.” Brief [#17] at 38. Therefore, the Court finds that the ALJ has not committed
reversible error with respect to his treatment of Dr. Wharry’s opinion. Glenn, 21 F.3d at
988.
C.

Reading and Writing Limitations
Finally, Plaintiff argues that the ALJ committed legal error because the “RFC finding

does not account for plaintiff’s deficits in reading and writing without a proper explanation.”
Brief [#17] at 38. First, Plaintiff argues that “[t]he ALJ did not state any reason for failing
to account for plaintiff’s reading and writing deficits in the RFC finding.” Id. at 39. This is
incorrect. The ALJ noted in his Decision that Plaintiff alleged “a limited capacity to read and
write.” Tr. 14. Later, when evaluating the evidence in the record, the ALJ explained that
20

despite the claimant’s allegations that he is unable to read or write, he
completed his own function report, with spelling errors, but in an
understandable manner, with answers appropriate to questions (Exh. B5E).
Thus, the evidence of mental functional difficulties also fails to persuade the
Administrative Law Judge that the claimant lacks the capacity to perform less
complex and less socially engaged tasks on a sustained basis.
Tr. 16. Because Plaintiff is simply incorrect when he argues that the ALJ “did not state any
reason for failing to account for plaintiff’s reading and writing deficits in the RFC finding,”
Brief [#17] at 39, this argument fails.
Second, Plaintiff argues that the ALJ “failed to explain why his findings changed from
the initial hearing to the remand hearing.” Id. In the ALJ’s initial Decision, he included a
limitation regarding Plaintiff’s ability to read and write. Specifically, he found that Plaintiff
could perform a job “requiring little independent reading and writing (meaning a job with low
general educational demands) . . . .” Tr. 80. As noted above, this first Decision was
vacated and remanded for further proceedings. Tr. 91-96. Thus, it was never a final
decision by the Commissioner and was not binding. Social Security regulations provide
that, in the event the Appeals Council orders a remand, the ALJ “shall initiate such
additional proceedings and take such other action . . . as is directed by the Appeals Council
in its order of remand. The Administrative Law Judge may take any additional action not
inconsistent with the order of remand.” 20 C.F.R. § 410.665(b); see also 20 C.F.R. §
416.1477(b) (noting that an ALJ “shall take any action that is ordered by the Appeals
Council and may take any additional action that is not inconsistent with the Appeals
Council's remand order”). The argument made by Plaintiff is similar to an argument
addressed by the Seventh Circuit in Key v. Sullivan, 925 F.2d 1056 (7th Cir. 1991). As the
Seventh Circuit explained, “[a] recommended decision never becomes final and binding
21

unless and until it expressly is adopted by the Council.” Id. at 1060; see also Gibbs v.
Barnhart, 130 F.App’x 426, 430 (11th Cir. 2005) (“[plaintiff’s] contention that the second
ALJ was legally bound by the first ALJ's findings that [minor's] ADHD and anemia were
‘severe’ impairments is without merit.”); Cunningham v. Colvin, 2014 WL 4458894, at *3
(N.D. Ala. Sept. 9, 2014) (“[B]ecause the Appeals Council vacated the first ALJ's written
decision, the specific findings contained in that first written decision were never conclusively
established and were subject to modification”). Here, the initial Decision was explicitly
vacated by the Appeals Council. As a result, it did not become final and was not binding
on the ALJ. Further, the ALJ’s action of reviewing the evidentiary record as a whole and
concluding that he did not need to include the same reading and writing limitation in the
RFC was “not inconsistent with the Appeals Council's remand order.”

20 C.F.R. §

416.1477(b). The remand order required the ALJ to take five specific steps and “issue a
new decision.” Tr. 94. Therefore, the ALJ was not bound by the prior Decision and it was
not improper for him to reach a different RFC in the second Decision. As a result, the Court
concludes that the ALJ did not commit reversible error with respect to this issue.
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is AFFIRMED.

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IT IS FURTHER ORDERED that each party shall bear its own costs and attorney’s
fees.
Dated: September 29, 2015

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