Vasquez v. Colvin

Filing 22

ORDER re: 11 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin, by Magistrate Judge Michael E. Hegarty on 3/11/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01198-MEH
MICHELLE L. VASQUEZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.

ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff, Margaret E. Perez, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying her application for disability and disability insurance
benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and her
application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). The
parties have not requested oral argument and the Court finds it would not materially assist the Court
in its determination of this appeal. After consideration of the parties’ briefs and the administrative
record, the Court REVERSES AND REMANDS the Commissioner’s final order.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the Commissioner’s decision denying her applications for
DIB [Administrative Record (“AR”) 148-149] and for SSI [AR 150-154] filed on July 21, 2011.

After the application was initially denied on August 31, 2011 [AR 72-75], an Administrative Law
Judge (“ALJ”) scheduled a hearing upon the Plaintiff’s request for October 2, 2012 [AR 90-96].
Although Plaintiff and a vocational expert were scheduled to testify at the hearing, the ALJ
determined he needed to secure additional evidence from a physical examination of the Plaintiff to
which the parties did not object. [AR 40-44] Plaintiff underwent the examination and the ALJ
rescheduled the hearing for March 11, 2013. [AR 117-122] A vocational expert, Bruce Magnuson,
testified at the hearing. [AR 28-37] The ALJ issued a written ruling on March 20, 2013 finding
Plaintiff was not disabled since April 30, 2011, because considering Plaintiff’s age, education, work
experience and residual functional capacity, Plaintiff could perform her past relevant work as a mail
handler, mail carrier, school bus driver, and data entry clerk . [AR 17-22] The SSA Appeals
Council subsequently denied Plaintiff’s administrative request for review of the ALJ’s
determination, making the SSA Commissioner’s denial final for the purpose of judicial review [AR
1-5]. See 20 C.F.R. § 416.1481. Plaintiff timely filed her complaint with this Court seeking review
of the Commissioner’s final decision.
II. BACKGROUND
Plaintiff was born on December 23, 1962; she was 48 years old when she filed her
applications for disability and supplemental security income benefits on July 21, 2011. [AR 148156] Plaintiff claims she became disabled on April 30, 2011 [id.] and reported that she was limited
in her ability to work by “diabetes, neuropathy, and back pain.” [AR 186] Plaintiff asserts she
“cannot walk, drive or sit[;] [her] whole right side is in constant pain from [the] waist down[;] right
foot is numb. Also I have diabetic neuropathy in my feet[;] cannot feel gas and break [sic].” [AR
2

200] According to her application, Plaintiff’s last day of work was April 30, 2011, because “of her
condition(s).” [AR 186] Plaintiff states that she takes three medications for her diabetes and
neuropathy, two medications for her pain, one medication for anxiety and one medication for blood
pressure. [AR 189]
Plaintiff’s work history included a bank check encoder from 1994 to 1999, a school bus
driver from February 1999 to June 1999, and a mail handler/carrier from September 1999 - April
2011. [AR 187, 196] Her earnings ranged from $8,269.36 to $19,761.70 during the period 19961999, and from $29,075.48 to $38,812.77 during the period 2000-2010; Plaintiff earned $16,870.74
in 2011. [AR 176]
Plaintiff provides copies of medical records dating back to May 2010; however, like the ALJ,
the Court will review only those records concerning the identified disabilities for the relevant time
period. A medical record from May 19, 2010 reflects that Plaintiff was seen for an office visit at
Kaiser Permanente where Dr. Foley diagnosed Plaintiff with sciatica; diabetic neuropathy,
peripheral; smoker and hypertension. [AR 276-281] Dr. Foley noted that Plaintiff also had the
following relevant “active problems”: radiculopathy lumbar; history of medical noncompliance;
hyperlipidemia; diabetes mellitus (DM) 2, uncontrolled; depression, major, recurrent. [AR 278]
The doctor prescribed Cyclobenzaprine and Hydrocodone for Plaintiff’s sciatic pain. [AR 276]
On October 12, 2010, Plaintiff presented to Dr. Schlicht of Lakewood Family Medicine
(Kaiser) apparently for an initial visit and management of medication. Dr. Schlicht diagnosed
Plaintiff with DM2 with diabetic peripheral neuropathy; hyperlipidemia; sciatica; anxiety disorder;
thyroid nodule; and DM2 with diabetic chronic kidney disease. [AR 266-272] Dr. Schlicht advised
3

Plaintiff to stop taking numerous medications and prescribed Glipizide and Meformin for diabetes;
Gabapentin for neuropathy; Hydrocodone for sciatic pain; Lisinopril for hypertension; Simvastatin
for cholesterol; and Alprazolam for anxiety. [AR 267-268] In addition, the record indicates that
Plaintiff takes a “medical marijuana pill at night for neuropathy” prescribed by an “outside
provider.” [AR 269-270]
Three days later, a physician’s assistant (PA) noted, and notified Plaintiff, that her blood test
results indicated chronic kidney disease, stage 3, and that her A1C and blood pressure results were
“not at goal.” [AR 262-265] The PA also noted that “pt has been noncompliant and getting some
prescriptions filled outside of KP ... (obtaining Xanax, Glipizide, Metformin and Lisinopril
externally).” [AR 263] Then, on November 3, 2010, the PA described a telephone call with Plaintiff
in which she reported low blood pressure the previous day, but was feeling better after stopping
“HCTZ” medication; Plaintiff stated “it could be that her pain had caused the elevated b/p and now
that her pain has improved, her b/p has improved.” [AR 249]
On January 12, 2011, Plaintiff reported to Dr. McGrath at Kaiser that she was suffering
depression; she “lost her daughter 8 weeks ago” due to a heart transplant failure. [AR 244] The
doctor gave Plaintiff some suggestions for support groups and prescribed Sertraline for the
depression. [AR 243-247] Plaintiff saw a counselor on January 18, 2011, who educated Plaintiff on
self care and support groups. [AR 240-242] Plaintiff again spoke with the counselor on January 26,
2011 saying that she had returned to work and met with an “EAP” therapist for continuing care. [AR
238]
Plaintiff next saw Dr. McCaffrey at Kaiser for a “follow up” appointment on April 18, 2011;
4

Plaintiff complained about swelling in her feet for the past three days, noted that she “walks a lot”
as a mail carrier, and “mention[ed] some sciatica of the right leg.” [AR 234-237] The doctor noted
that Plaintiff’s diabetic neuropathy and chronic kidney disease were stable and that he would adjust
her Lisinopril to relieve any resulting edema. [AR 234]
Plaintiff saw Dr. McCaffrey again on May 13, 2011 for another follow-up regarding
Plaintiff’s diabetes and chronic back pain. [AR 225-229] Plaintiff reported that her chiropractor
suggested she see a surgeon regarding her back pain and herniated disc. [AR 227] In addition,
Plaintiff conceded that her diabetes was not under control “due to her admitted poor compliance.”
[Id.] Dr. McCaffrey referred Plaintiff to “Physical Medicine” for her back pain and neuropathy. [AR
227-228]
On May 24, 2011, Plaintiff saw Joseph Illig, M.D. for “low back pain.” [AR 365-366] Dr.
Illig assessed Plaintiff with lumbosacral radiculopathy, found a “right S1 radiculopathy” and
determined that due to the degree and magnitude of compression, conservative treatment would not
be beneficial and may aggravate her diabetes, so suggested “surgical intervention” in the form of
a “microlumbar discectomy.” [Id.] Plaintiff agreed to proceed with the surgery. [Id.]
Plaintiff met with Dr. Illig again on June 10, 2011 to discuss lab results and a pre-operative
course of action. [AR 363-364] The doctor changed his finding to a “right L5 radiculopathy” and
noted that he discussed with Plaintiff the implications as to her work as a mail carrier, saying that
“she may not be able to pursue her present position”; Plaintiff then asked about Social Security
disability and Dr. Illig responded, “I indicated quite frankly that total disability from a microlumbar
discectomy is not likely.” [AR 364] The doctor proceeded with surgery on June 13, 2011
5

confirming what the MRI showed as “subligamentous herniation L4, L5 on the right compressing
the L5 root” and noting that after the procedure, “the L5 root was nicely decompressed and
pulsatile.” [AR 317-318] Plaintiff was discharged the next morning on a regular diet and activity “as
tolerated” with no bending, twisting or lifting. [AR 310-311]
Plaintiff followed up with Dr. Illig on June 20, 2011 reporting that her right leg pain
(sciatica) and buttock and hamstring pain were better since the surgery, but she still had some “right
lumbar sacral paraspinal” pain. [AR 362] Dr. Illig noted that the post operative course was
“satisfactory.” [Id.] Then, on July 18, 2011, Dr. Illig noted “some L5 radicular irritation” and
advised Plaintiff to start physical therapy, including pool exercises. [AR 361]
Plaintiff filed the present applications for DIB and supplemental security income benefits
on July 21, 2011. [AR 148-156] Plaintiff claims that she stopped work on April 30, 2011 due to her
diabetes, neuropathy, and back pain. [AR 186]
Plaintiff called a nurse at Kaiser on August 2, 2011 complaining of “back pain/hip pain”; the
nurse set an appointment the following day. [AR 383-384] Plaintiff then saw Richard Stiphout,
M.D. on August 3, 2011 to whom she reported a recurrence of sciatica “just like before” and stated
that she was “using a cane to get around - helps decr[ease] the pain.” [AR 386-390] Plaintiff also
noted “issues” with diabetic neuropathy and depression. [AR 389] Dr. Stiphout adjusted Plaintiff’s
Gabapentin medication and added Percocet for acute pain. [AR 390]
Plaintiff saw Dr. Illig for a follow up appointment on August 11, 2011 complaining of
continued pain in her right leg, buttocks and back [AR 485-486] Dr. Illig noted a “possible recurrent
disc herniation” and ordered an MRI; the doctor also prescribed Vicodin for Plaintiff’s pain. [Id.]
6

The MRI taken on August 22, 2011 reflects “postoperative changes of L5-S1 without evidence of
recurrent disk herniation or stenosis.” [AR 487]
On August 22, 2011, Plaintiff completed a Personal Pain Questionnaire and a Function
(activities) Report for SSA Disability Determination Services. [AR 199-208] Plaintiff reported that
she had constant sharp pain in her back and right leg; her right foot was numb; she could not walk
more than 10 feet or sit for longer than 30 minutes; she could not go anywhere or stand long enough
to cook or clean; and she took Vicodin which did not alleviate the pain. [AR 199] Plaintiff also
reported for her daily activities that she “sit[s] for about ½ hour then I have to lay down for about
½ hour[;] I try to walk for about ½ hour throughout the day”; she got only about six hours of
“broken” sleep; her boyfriend helped her with personal care; she cooked meals such as soup and
frozen dinners because she could not stand long enough for a regular meal; she sat on the porch
outside about ½ hour per day; she could no longer drive because of back pain and numbness in her
right foot; she was able to clean the dishes and shop for groceries once per month; she was able to
watch television “all day” if she could “sit comfortab[ly]”; she could talk on the telephone with
others every other day, but did not go out to visit family and friends and could do nothing with them
when they visited her; she could walk for 5-10 minutes with a cane; and she used the cane for
stability and a wheelchair when she attended a graduation. [AR 200-208]
On August 31, 2011, the SSA sent to Plaintiff a Notice of Disapproved Claim informing her
that her claims for DIB and SSI were denied. [AR 72-75]
On September 6, 2011, Plaintiff returned to Dr. Illig for a follow up appointment post
surgery; she reported having continued pain in her back, right buttock and thigh, and that she was
7

“dealing with a lot of stressful issues” including the death of her daughter, hospitalization of her
father, and fight with her boyfriend. [AR 483] Dr. Illig assessed “residual L5 radicular symptoms”
noting that Plaintiff had “a considerable amount of factors increasing stress levels which contribute
to her somatic pain, I suspect.” [AR 483-484] He discussed the MRI’s negative finding, prescribed
pain medication, advised Plaintiff to “use a pool” for exercises, and “sent a note indicating she is
unable to return to work at his point given her continued pain.” [Id.]
On September 19, 2011, a nurse from Kaiser called Plaintiff asking her to come in for fasting
lab work so that the doctor could continue to refill her medication; Plaintiff responded that she did
not know when she could come in, since she lived in Walsenberg. [AR 402-403] Plaintiff then
presented to Dr. McGrath on October 4, 2011 complaining of low back pain and worsening
neuropathy in both feet; she reported that she had been taking her Gabapentin regularly but not her
diabetes medication. [AR 407-412] Dr. McGrath increased the dosage of Gabapentin and discussed
Plaintiff’s history of noncompliance with her course of medication. [AR 410]
Plaintiff returned to Dr. Illig on October 10, 2011 for a post surgery follow up appointment;
she reported the same pain and “stressful issues” as those reported in September and stated that she
was tolerating the pain medication well. [AR 481-482] Dr. Illig found Plaintiff was walking more
and felt some slight improvement since last month, but she was not able to return to work “at this
point”; the doctor “changed” Plaintiff (referred her back) to her primary care physician. [AR 482]
On October 12, 2011, Dr. Whalen (who counseled Plaintiff previously in January) called the
Plaintiff to follow up regarding Plaintiff’s depression; Plaintiff reported her stressors and that she
“hurt back and has been unable to work since April”; she also reported that she was having trouble
8

paying copays for her medication. [AR 414-415] Dr. Whalen suggested certain financial programs
and recommended Plaintiff keep regular contact with her family and friends. [Id.; AR 418] Plaintiff
also spoke with Dr. McGrath about completing forms to get medications for free. [AR 424]
On October 18, 2011, Plaintiff completed an Appointment of Representative form, which
identifies Michael Seckar as her attorney [AR 77] and a Request for Hearing by Administrative Law
Judge form [AR 78-79]. On October 20, 2011, Dr. McGrath noted that she reviewed Dr. Illig’s
records and determined “there is not much else to do besides treat it with medications,” and “we
need to give the new medication some time to kick in.” [AR 433] On October 25, 2011, Plaintiff
spoke with Dr. Whalen again by telephone reporting frustration with needing to see physicians in
Denver, but stating that she did not want to transfer care to Pueblo because she “saw 2 different
doctors there and had a bad experience.” [AR 441]
On November 2, 2011, Plaintiff saw C. David Neece as a new patient and reported the onset
of back problems that year while working as a letter carrier; she stated that she was “on medical
leave” since 5/1/11 and “now has constant back pain.” [AR 510] Dr. Neece assessed Plaintiff as
follows: lumbar herniated disc and radiculopathy; type 2 diabetes mellitus “fair control”;
hypertension “good control”; diabetic neuropathy; depression; and GERD. [Id.] Dr. Neece
completed a Med-9 form stating that he believed Plaintiff would be disabled for 6 months from the
onset of her disability on 5/1/11. [AR 491]
On November 3, 2011, the Office of Disability Adjudication and Review (ODAR) sent
Plaintiff and her counsel a letter confirming receipt of the request for hearing, informing Plaintiff
of hearing procedures and explaining that a Notice of Hearing will be sent at least 20 days before
9

the hearing notifying him of the time and place. [AR 80-81]
Plaintiff next saw Dr. Neece on March 2, 2012 for a “check up” and reported she had
“muscle spasms across her abdomen.” [AR 509] Dr. Neece adjusted Plaintiff’s medication for her
diabetes and referred her to a podiatrist for the neuropathy. [Id.] Dr. Neece also completed a Med-9
form stating that he believed Plaintiff would be disabled for 6 months. [AR 489] Plaintiff returned
to see Dr. Neece on March 19, 2012 reporting a “rapid pulse.” [AR 508] Dr. Neece found, inter alia,
that Plaintiff “amb[ulated] well without assistance,” and he discussed a “low fat diet and exercise”
regarding her hypertension, the “importance of good BG [blood glucose] control” for her diabetic
neuropathy,” and cessation of her smoking. [Id.] Plaintiff saw Dr. Neece again on April 2, 2012
reporting she was dizzy “a couple of nights ago” when her blood pressure was 99/60. [AR 507] The
doctor discussed insulin for Plaintiff’s rising blood sugar levels, but “she doesn’t want it.” [Id.]
Plaintiff returned to Dr. Neece on May 24, 2012 “need[ing] paperwork done” and reporting
seeing shadows in her left eye with no pain but some blurriness. [AR 505] The doctor ordered labs
for her diabetes and hypertension and advised rest, physical therapy and no lifting for Plaintiff’s
lower back pain. [Id.] Plaintiff saw Dr. Neece again on June 13, 2012 reporting that insurance would
not cover medications for depression and diabetes. [AR 504] The doctor noted that Plaintiff had tried
to control her blood glucose on current medications and she lost weight, but BG “still running high”;
he determined that if her attempts to get medications through insurance “totally fails she will have
to go on insulin.” [Id.]
On July 19, 2012, the ODAR sent Plaintiff a Notice of Hearing informing the Plaintiff that
the hearing would occur on October 2, 2012 in Pueblo, Colorado. [AR 90-96] A representative of
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Fastrak Rehabilitation Services was requested to appear as a vocational expert at the hearing. [AR
108-109]
Plaintiff presented to Spanish Peaks Behavioral Heath Center (“SPBHC”) on July 31, 2012
for an “initial emergency assessment.” [AR 513-518] She reported to a therapist, Michelle
Morrissey, that she had suffered depression since childhood and it got worse in 2003 after she
learned her husband had cheated; she suffered anxiety since 2006 when her husband asked for a
divorce; she had gotten “hurt at work and had to have back surgery ... [d]ue to diabetes I didn’t heal
the way the doctor expected”; and she had not “really grieved” for her daughter or father and was
not “dealing with [her] son’s issues” because she was “kind of in a zone.” [AR 513] She denied
suicidal ideation and hallucinations but felt hopeless that things would get better, and reported issues
with her short-term memory and concentration. [AR 516-517] The therapist diagnosed Plaintiff with
general anxiety disorder and major depressive disorder, recurrent, moderate, and assessed her a
global assessment functioning (GAF) score of 53.1
1

In Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012), the Tenth Circuit
describes the GAF as follows:
The GAF is a 100-point scale divided into ten numerical ranges, which permits clinicians to
assign a single ranged score to a person’s psychological, social, and occupational functioning.
See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32, 34
(Text Revision 4th ed. 2000). GAF scores are situated along the following “hypothetical
continuum of mental health [and] illness”:
• 91–100: “Superior functioning in a wide range of activities, life’s problems never seem to get
out of hand, is sought out by others because of his or her many positive qualities. No symptoms.”
• 81–90: “Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in
all areas, interested and involved in a wide range of activities, socially effective, generally
satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument
with family members).”
• 71–80: “If symptoms are present, they are transient and expectable reactions to psychosocial
stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in
11

Plaintiff saw Ms. Morrissey again on August 9, 2012 and reported that her son was not doing
well in ICU following an auto accident; she was at the hospital in Denver four days a week; agreed
to therapy weekly for 50 minutes each. [AR 511] Plaintiff also saw a podiatrist, Dr. Gordon
Rheaume, on August 9, 2012 and was fitted for “diabetic shoes.” [AR 493-495, 497] Plaintiff
returned to see Ms. Morrissey on September 5, 2012 at which time they discussed methods to help
Plaintiff relax and sleep better so to allow Plaintiff to deal with her needs and son’s long-term care.
[AR 511]
social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).”
• 61–70: “Some mild symptoms (e.g., depressed mood and mild insomnia), OR some difficulty
in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal
relationships.”
• 51–60: “Moderate 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 co-workers).”
• 41–50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).”
• 31–40: “Some impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and
is unable to work; child beats up younger children, is defiant at home, and is failing at school).”
• 21–30: “Behavior is considerably influenced by delusions or hallucinations OR serious
impairment in communication or judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in
bed all day; no job, home, or friends).”
• 11–20: “Some danger of hurting self or others (e.g., suicide attempts without clear expectation
of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal
personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely
incoherent or mute).”
• 1–10: “Persistent danger of severely hurting self or others (e.g., recurrent violence) OR
persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear
expectation of death.”
• 0: “Inadequate information.”
12

She then saw Dr. Neece on September 5, 2012 complaining of a lump in her abdomen and
knee pain; the doctor discussed Plaintiff’s constipation and ordered a “CT when she can”; he also
noted discussing with Plaintiff her “disability paperwork.” [AR 503] That same day, Dr. Neece
completed a Mental RFC Evaluation in which he noted that he had provided Plaintiff mental health
treatment since May 2012 and diagnosed Plaintiff with depression and anxiety. [AR 498-500] After
listing none to marked limitations in certain areas, the doctor estimated Plaintiff would be “off task”
for 30% of a work week and she has suffered her impairments since 2008. [Id.] Dr. Neece also
completed a physical RFC evaluation in which he found Plaintiff could lift and carry 10 pounds; sit
for 30 minutes at a time during a 10-hour day; stand for one hour during an 8-hour day; elevate her
feet for 15 minutes every 2-3 hours; and lie down for 15 minutes every 2 hours. [AR 501-502]
The records indicate Plaintiff met with Ms. Morrissey approximately twice per month from
September 2012 through January 2013 and primarily discussed the issues Plaintiff encountered in
caring for and finding caregiving assistance for her son; in the last record dated January 29, 2013,
Ms. Morrissey described Plaintiff’s progress as: “Michelle has looked into services for her son, she
has made appts for in-home care, long term care, SSI, divorce, etc. She has accepted the help of case
mgr to assist her and son with SSI and other needs. She has someone coming over Thursday to talk
about son’s in-home care needs.” [AR 541-546]
Meanwhile, Plaintiff returned to Dr. Neece on October 1, 2012 for a follow up after blood
work (A1C), but the doctor’s notes are mostly illegible; however, he notes that Plaintiff had been
“off Metformin due to renal function and states she hasn’t been using the [illegible] and she lost her
BG meter.” [AR 567]
13

The following day, on October 2, 2012, Plaintiff and her counsel, Michael Seckar, appeared
for the disability benefits hearing, and the ALJ opened the proceeding stating his concerns about the
reliability of Dr. Neece’s inconsistent findings and the inconsistencies he perceived in the record.
[AR 40-44] The ALJ determined “when I’ve got a conflict in the evidence, it really is incumbent
upon me to take reasonable steps to clarify the inconsistency,” and continued the hearing pending
a consultative physical examination. [AR 44] Plaintiff did not object. [Id.]
Plaintiff presented to the consultative examiner, Adam Summerlin, M.D., on October 20,
2012 complaining chiefly of back pain and diabetic neuropathy. [AR 522-527] After noting certain
medical findings in the record, Dr. Summerlin noted Plaintiff’s reports that she experienced “some
improvement in the pain” radiating into her right leg, though she continued to have back pain,
particularly in cold weather or when walking for a long time period; the pain and burning from
neuropathy in Plaintiff’s feet had moved up to her knees and she suffered a mild imbalance from
numbness in her feet; she was currently caring for her son who suffered injuries from a crash; and
she recently lost her father and daughter. [AR 523-524] Dr. Summerlin found Plaintiff “independent
in her self-care” and able to cook, clean, crochet and drive short distances, and she sat comfortably
on the examination table and got on and off without assistance. [Id.] After a thorough physical
examination, Dr. Summerlin diagnosed Plaintiff with diabetic neuropathy and a lumbar strain
without definite radiculopathy, and completed a Medical Source Statement of Ability to Do WorkRelated Activities (Physical) form reflecting his opinion that Plaintiff can lift up to 20 pounds
continuously and up to 100 pounds occasionally; carry up to 20 pounds continuously, up to 50
pounds frequently and up to 100 pounds occasionally; sit, stand and walk for 4 hours at a time in an
14

8-hour day; ambulate without assistance; use both hands continuously; operate foot controls
frequently; climb, balance, stoop, kneel and crawl only occasionally, but crouch frequently; tolerate
unprotected heights and loud noise frequently; operate a motor vehicle frequently; and shop, travel,
ambulate, walk on uneven surfaces, use public transportation, climb a few steps, prepare a simple
meal and feed herself without assistance. [AR 525-533]
Plaintiff returned to Dr. Neece on November 19, 2012 complaining of a swelling in her
abdomen and asking for completion of paperwork. [AR 563] The doctor’s notes are mostly illegible
but he notes Plaintiff continues to have “back pain and right leg and she cont[inues] to struggle with
blood sugars.” [Id.] Dr. Neece completed another Med-9 form that day opining that Plaintiff would
be disabled for a period of six months. [AR 564-565] Plaintiff saw Dr. Neece again on December
10, 2012 following up her A1C labs, but the doctor’s notes are mostly illegible. [AR 562]
The Court notes a Progress Record from January 8, 2013 completed by who appears to be
the podiatrist, Dr. Rheaume, but whose writing is mostly illegible. [AR 538] Plaintiff saw Dr.
Neece again on January 16, 2012 because she “need[ed] paperwork filled out,” and the doctor’s
notes are mostly illegible. [AR 561] A questionnaire provided to Dr. Neece from Plaintiff’s counsel
is dated January 8, 2013, but completed by the doctor that day (January 16, 2013), and reflects the
doctor’s opinions that Plaintiff could lift only 10 pounds due to a “herniated disc”; she needed to
elevate her feet 2-3 times per day for 15-30 minutes each time due to “right leg and foot swells” in
order to reduce swelling and improve circulation and sensation; and she needed to lie down for 15
minutes every 2 hours due to “herniated disc and [illegible] pain” to reduce the pain and muscle
spasms. [AR 539-540] Further, Dr. Neece clarified that he had identified her limitations beginning
15

in 2002 when she first reported a herniated disc, she was on light duty for two years and reported
frequent recurrent back pain and sciatica. [Id.] Dr. Neece opined that Plaintiff was unable to work
starting in March 2011 but his opinion as to whether he believed Plaintiff was capable of full-time
work was illegible. [Id.]
On February 6, 2013, the ODAR issued a notice of the second hearing to be held March 11,
2013 in Pueblo, Colorado. [AR 117-122] The ODAR requested that Bruce Magnuson appear and
give testimony as a vocational expert at the hearing. [AR 135] Plaintiff executed an
Acknowledgment of Receipt of the Notice of Hearing on February 13, 2013. [AR 147]
A questionnaire completed and dated March 8, 2013 by Gordon Rheume, OPM reflects that
he was currently treating Plaintiff for diabetic neuropathy and he opined that Plaintiff could stand
for 1-2 hours during a day for 30 minutes at a time, based upon Plaintiff’s complaints that she could
not “stand or walk long distances; hard to feel gas and brake pedals to drive.” [AR 568] In addition,
an undated report by Dr. Neece reflects a history of Plaintiff’s herniated disc, back pain, diabetic
neuropathy and depression and concludes the following:
4. Assessment to degree of medical condition. Patient has difficulty driving due to
neuropathies, numbness, tingling in her feet, has difficulty standing which effects
[sic] ADL’s [activities of daily living]. She has difficulty fixing meals, unable to do
dishes. She uses a bench for showering. She has difficulty with steps in her home.
She has difficulty doing laundry, she does multiple small loads in order to be able to
carry the laundry. She frequently has to sit down throughout the day.
5. Restrictions. She has driving restrictions due to her neuropathies, inability to
operate gas and brake pedal. She has [a] restriction in lifting 5 pounds repeatedly, by
10 pounds at once. She is not expected to recovery [sic] from this. Diabetic
neuropathies are permanent prior to be [sic] total and completely disabled from being
able to resume previous work requirements.

16

[AR 569-570]
The Plaintiff, her counsel and Mr. Magnuson appeared at the hearing on March 11, 2013.
[AR 28] The Plaintiff testified that she could no longer perform the duties of her previous work as
a bus driver, check encoder, mail handler and mail carrier because she “can’t concentrate.” [AR 3435] Mr. Magnuson then testified that a hypothetical employee – same age (48), education (GED)
and work experience as the Plaintiff, who could stand or walk up to six hours; sit six hours; could
lift 50 pounds occasionally, 25 pounds frequently; only occasionally climb, balance, stoop, kneel,
crouch, or crawl; and they need to avoid exposure to heights on more than an occasional basis –
could perform Plaintiff’s past work activities. [AR 35] When asked whether the employee would
be “off task 30 percent of the time in any given workday,” Mr. Magnuson testified that the employee
could perform none of Plaintiff’s past work activities. [Id.] Further, the ALJ took judicial notice that
a person able only to stand and/or walk for 30 minutes at a time for 2 hours per day could perform
only sedentary work. [AR 36] Mr. Magnuson also testified that a person who needed to elevate
his/her feet 2-3 times per day for 15 minutes at a time at unpredictable intervals could not work, but
a person who could do so during normal breaks could work. [Id.]
The ALJ issued an unfavorable decision on March 20, 2013. [AR 12-23]
III. LAW
To qualify for benefits under sections 216(I) and 223 of the SSA, an individual must meet
the insured status requirements of these sections, be under age 65, file an application for DIB and/or
SSI for a period of disability, and be “disabled” as defined by the SSA. 42 U.S.C. §§ 416(I), 423,
1382. Additionally, SSI requires that an individual meet income, resource, and other relevant
17

requirements. See 42 U.S.C. § 1382.
Here, the Court will review the ALJ’s application of the five-step sequential evaluation
process used to determine whether an adult claimant is “disabled” under Title II and Title XVI of
the Social Security Act, which is generally defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137,
140 (1987).
Step One determines whether the claimant is presently engaged in substantial gainful
activity. If he is, disability benefits are denied. See 20 C.F.R. §§ 404.1520, 416.920. Step Two is
a determination of whether the claimant has a medically severe impairment or combination of
impairments as governed by 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is unable to show
that his impairment(s) would have more than a minimal effect on his ability to do basic work
activities, he is not eligible for disability benefits. See 20 C.F.R. 404.1520(c). Step Three
determines whether the impairment is equivalent to one of a number of listed impairments deemed
to be so severe as to preclude substantial gainful employment. See 20 C.F.R. §§ 404.1520(d),
416.920(d). If the impairment is not listed, he is not presumed to be conclusively disabled. Step
Four then requires the claimant to show that his impairment(s) and assessed residual functional
capacity (“RFC”) prevent her from performing work that he has performed in the past. If the
claimant is able to perform his previous work, the claimant is not disabled. See 20 C.F.R. §§
404.1520(e), (f), 416.920(e) & (f). Finally, if the claimant establishes a prima facie case of
18

disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA
Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work
in the national economy in view of his age, education and work experience. See 20 C.F.R. §§
404.1520(g), 416.920(g).
IV. ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity since the onset
date of her disability, April 30, 2011 (Step One). [AR 17] Further, the ALJ determined that Plaintiff
had the following severe impairments – diabetes mellitus, neuropathy, and disorders of the spine –
and determined that her depression was situational and not severe (Step Two). [AR 17-18] Next,
the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listed impairment deemed to be so severe as to preclude substantial gainful
employment (Step Three). [AR 18]
The ALJ then determined that Plaintiff had the RFC to perform “medium work as defined
in 20 CFR 404.1567(c) and 416.967(c) except the claimant can stand and walk up to six hours per
eight-hour workday; she can sit up to six hours per eight-hour workday; she can frequently lift and
carry 25 pounds and occasionally 50 pounds; she can occasionally climb, balance, stoop, kneel,
crouch and crawl; she should avoid more than occasional exposure to unprotected heights.” [AR
18-22] The ALJ determined that the record reflects Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible.” [AR 19] He further gave some weight to Plaintiff’s podiatrist’s opinion, no weight to
19

Plaintiff’s primary care physician’s opinions (primarily due to perceived inconsistencies in the
physician’s reports), and great weight to the consultative examiner’s opinion. [AR 19-22]
The ALJ went on to determine that considering Plaintiff’s age, education, work experience
and residual functional capacity, Plaintiff could perform her past relevant work as a mail handler,
mail carrier, school bus driver, and data entry clerk (Step Four). [AR 22] As a result, the ALJ
concluded that Plaintiff was not disabled at Step Four of the sequential process and, therefore, was
not under a disability as defined by the SSA. [Id.]
Plaintiff sought review of the ALJ’s decision by the Appeals Council on April 15, 2013. [AR
6] On April 14, 2014, the Appeals Council notified Plaintiff that it had determined it had “no
reason” under the rules to review the decision and, thus, the ALJ’s decision “is the final decision of
the Commissioner of Social Security.” [AR 1-3] Plaintiff timely filed her Complaint in this matter
on April 29, 2014.
V. STANDARD OF REVIEW
This Court’s review is limited to whether the final decision is supported by substantial
evidence in the record as a whole and whether the correct legal standards were applied. See
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001). Thus, the function of the Court’s review is “to determine whether the
findings of fact ... are based upon substantial evidence and inferences reasonably drawn therefrom.
If they are so supported, they are conclusive upon the reviewing court and may not be disturbed.”
Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970). “Substantial evidence is more than
a scintilla, but less than a preponderance; it is such evidence that a reasonable mind might accept
20

to support the conclusion.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court may not re-weigh the evidence nor
substitute its judgment for that of the ALJ. See Casias v. Secretary of Health & Human Servs., 933
F.2d 799, 800 (10th Cir. 1991) (citing Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir. 1987)).
However, reversal may be appropriate when the ALJ either applies an incorrect legal standard or
fails to demonstrate reliance on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996).
VI. ISSUES ON APPEAL
On appeal, Plaintiff alleges the following issues: (1) the ALJ failed to properly assess
whether plaintiff’s mental disorders persisted for the requisite period of twelve months; (2) the ALJ
did not properly weigh the conflicting opinions of mental impairments; (3) the ALJ failed to
properly weigh the conflicting medical opinions of plaintiff’s physical impairments; (4) the ALJ
failed to weigh the opinion of the agency physician, Dr. Ketelhohn; and (5) the ALJ’s finding that
Plaintiff’s testimony is not entirely credible is not sufficient.
VII. ANALYSIS
The Court will address each of Plaintiff’s issues in turn.
A.

Whether ALJ Properly Assessed Duration of Plaintiff’s Mental Condition
The ALJ in this case considered Plaintiff’s alleged depression to be “situational in nature and

resulting from several events .... She had no long standing history of mental health treatment or
conditions.” [AR 17] In so determining, the ALJ first noted there was nothing in the record
substantiating Dr. Neece’s finding that Plaintiff’s depression began in 2008, then found that Plaintiff
21

was first assessed for mental heath treatment by Spanish Peaks in July 2012. He then concluded,
“Since this condition is not durational in nature, no substantive evidence shows that she has any
long-standing mental health concerns and she is effectively treated with medication and therapy, the
undersigned finds this to be a non-severe impairment and gives great weight to the opinion of Mary
Ann Wharry, Psy.D. [who] characterized her depression as not severe.” [AR 18].
Pursuant to 20 C.F.R. § 404.1520(a)(4)(ii), at the second step of the sequential evaluation
process, an ALJ is required to determine whether a medically determinable impairment may be
classified as severe and whether such impairment meets the duration requirement of 42 U.S.C. §
423(d)(1)(A), which provides:
(1) The term “disability” means-(A) inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.
Here, Plaintiff argues that the ALJ erred by finding “no substantive evidence shows that
[Plaintiff] has any long-standing mental health concerns,” since the medical record indicates that
Plaintiff had been suffering depression and anxiety “for well over twelve months.” Plaintiff
specifically points to the ALJ’s reliance on Dr. Wharry’s speculative finding on August 31, 2011,
based on records from January 2011, that Plaintiff’s depression over her daughter’s death would not
last a year from the disability onset date of April 30, 2011. Opening Brief, docket #14 at 10-11.
However, Plaintiff contends, her mental impairments persisted longer than Dr. Wharry predicted as
indicated by the medical record.

22

Defendant counters that any error by the ALJ in failing to find Plaintiff’s mental impairment
met the durational requirement became harmless when the ALJ considered the impairment in
assessing Plaintiff’s RFC.

Plaintiff replies that the ALJ specifically excluded any mental

impairments from his RFC analysis due to the durational issue by finding “no substantive evidence”
of the impairments in the record and by his reliance on Dr. Wharry’s speculative finding about
Plaintiff’s depression.
There is no dispute in this case that Plaintiff’s depression and anxiety are medically
determinable impairments. The Court agrees with the Plaintiff in part and finds that the ALJ erred
in concluding Plaintiff’s mental impairments are “not severe” due to a lack of the durational
requirement. First, the ALJ was incorrect in finding no substantive evidence of Plaintiff’s “longstanding” depression/anxiety in the record. The ALJ’s decision is vague in this regard; without
specifying a date, the ALJ notes Plaintiff “sought treatment for depression, which was situational
in nature and resulting from several events, the loss of her father, the sudden death of her daughter
and an accident resulting in [severe injuries to] her son.” It is unclear whether the ALJ derived this
information from January 2011 records in which the Plaintiff first reported her daughter’s death in
November 2010 and the depression she suffered, from September 2011 records in which Plaintiff
reported “stress” from the hospitalization of her father, or from July 2012 records in which Plaintiff
reported issues surrounding the deaths of her daughter and father, as well as her son’s automobile
accident.
In any case, it is clear from the record that Plaintiff was treated with medication and/or
counseled for depression/anxiety in October 2010 [AR 267-271]; January 2011 [AR 244]; May 2011
23

[AR 365]; June 2011 [AR 362, 363]; July 2011 [AR 361]; August 2011 [AR 386-388]; September
2011 [AR 395-401; 483], October 2011 [AR 405-409; 414; 422-424; 481], November 2011 [AR
442-447; 510]; December 2011 [AR 449-450]; March/April 2012 [AR 490, 506]; May 2012 [AR
505]; June 2012 [AR 504]; then, July 2012 through January 2013 with Spanish Peaks. There is no
indication in these records, particularly in those from Kaiser Permanente dated October 2010
through December 2011, that Plaintiff’s medications for her mental impairments were discontinued.
Accordingly, the ALJ’s finding that Plaintiff’s mental impairments were not “durational in nature”
at Step 2 is not supported by substantial evidence in the record.
Second, the Court disagrees with the Defendant that the ALJ considered Plaintiff’s mental
impairments in his RFC analysis and, thus, the ALJ’s error was not harmless. Although the ALJ
discusses Dr. Neece’s findings concerning Plaintiff’s mental impairments in his RFC analysis, he
mentions nothing about Plaintiff’s treatment for depression and anxiety at Kaiser Permanente from
approximately October 2010 through December 2011 and at Spanish Peaks from July 2012 through
approximately January 2013. More importantly, at the initial hearing on October 2, 2012, the ALJ
noted the inconsistencies in Dr. Neece’s findings regarding not only Plaintiff’s physical
impairments, but also her mental impairments [AR 42-43]; however, the ALJ ordered a follow-up
consultative evaluation only for her physical impairments [AR 44]. Then, at the March 11, 2013
hearing, the ALJ took no testimony from the Plaintiff or anyone else regarding Plaintiff’s mental
impairments. As noted herein, the ALJ’s RFC contains no limitations concerning Plaintiff’s mental
impairments.
The Court concludes that the ALJ’s finding at Step 2 that Plaintiff’s medically determinable
24

mental impairments were not severe because they were not “durational in nature” is not supported
by the record and, thus, the decision must be remanded to the Commissioner.
B.

Whether the ALJ Properly Weighed Conflicting Mental Health Opinions
As set forth above, the ALJ determined, “Since [Plaintiff’s depression] is not durational in

nature, no substantive evidence shows that she has any long-standing mental health concerns and
she is effectively treated with medication and therapy, the undersigned finds this to be a non-severe
impairment and gives great weight to the opinion of Mary Ann Wharry, Psy.D. [who] characterized
her depression as not severe.” [AR 18] On the other hand, the ALJ found the following with respect
to Dr. Neece’s opinions of Plaintiff’s mental health:
Dr. Neese completed [ ] mental and physical residual functional capacity evaluations
on September 5, 2012. Mentally, he expressed the opinion that the claimant had
depression and anxiety, [and he] had treated her from May of 2012 to the present.
Her symptoms included loss of interest and low self-esteem. He expressed the
opinion that she had moderate limitations in the ability to understand and remember
detailed instructions, the ability to maintain attention and concentration for extended
periods and the ability to perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerances among others. He also
opined that she had marked limitations in the ability to complete a normal workday
or workweek without interruptions from psychologically based symptoms and that
she would be off task 30% of the week. His ratings were based on clinical exam
findings and he expressed that she had this level of mental impairment since 2008
(10F/3). The undersigned gives no weight to Dr. Neece’s opinions regarding her
mental health. This provider has no expertise in the area of mental health and it is
not clear how he arrived at the conclusions he did, especially given that there are no
objective or clinical findings to support the mental limitations assigned.
[AR 20-21] The ALJ then listed a number of reports and records by Dr. Neece which appear to list
different disability onset dates. The ALJ concluded, “The undersigned finds that [Dr. Neece’s]
reports are far from credible due to the plethora of inconsistent statements regarding the severity of

25

the claimant’s conditions and the onset dates. Consequently, no weight is given Dr. Neece’s opinions
regarding the claimant’s physical or mental functioning or limitations.” [AR 21]
Plaintiff argues that the ALJ failed to perform the required two-step assessment of a treating
physician’s opinion by first failing to determine whether Dr. Neece’s opinions were entitled to
controlling weight. She further contends that the ALJ’s reasons for rejecting Dr. Neece’s opinions
do not warrant total rejection under the law, and the ALJ had no valid reason for elevating Dr.
Wharry’s opinion over Dr. Neece’s.
Defendant counters that while the ALJ did not specify whether he gave Dr. Neece’s opinion
controlling weight, he specified the weight he gave and the reasons therefor, which are sufficient
to affirm. Defendant also contends that the record demonstrates Plaintiff received “sporadic
treatment” for her “situational” mental problems and, thus, the ALJ’s greater weight given to Dr.
Wharry was reasonable.
Plaintiff replies that, of course, a rejection implies the ALJ denied the physician controlling
weight, but in this case, the ALJ’s failure to state reasons for denial of controlling weight prevent
the Court from reviewing whether the ALJ improperly rejected Dr. Neece’s opinion for reasons that
should have only denied controlling weight. Plaintiff contends that the ALJ must expressly state
why he denied controlling weight so the Court would be able to review whether a deficiency (in one
of the two controlling weight factors) merely precludes controlling weight, or whether it can be used
to reject the opinion. Specifically, here, Plaintiff contends that one of the ALJ’s reasons for
rejecting Dr. Neece – lack of “objective or clinical findings to support the mental limitations
assigned” – may be proper for declining to give an opinion controlling weight, but improper for
26

rejecting the opinion altogether. In addition, Plaintiff argues the ALJ’s other reason for rejecting
the opinion – Dr. Neece “has no expertise in the field of mental health” – is merely speculative,
since the record contains no evidence to support such reason. Finally, Plaintiff repeats her
arguments that the ALJ improperly gave greater weight to Dr. Wharry, a non-treating agency
physician, who never saw the Plaintiff and who issued an opinion without seeing all of the mental
health records.
According to the “treating physician rule,” the Commissioner will generally “give more
weight to medical opinions from treating sources than those from non-treating sources.” Langley
v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004); see also 20 C.F.R. § 404.1527(c)(2). In fact, “[a]
treating physician’s opinion must be given substantial weight unless good cause is shown to
disregard it.” Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 289-90 (10th Cir.
1995). A treating physician’s opinion is accorded this weight because of the unique perspective the
doctor has to medical evidence that cannot be obtained from an objective medical finding alone or
from reports of individual examinations. See Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.
2004).
When assessing how much weight to give a treating source opinion, the ALJ must complete
a two-step inquiry, each step of which is analytically distinct. Krauser v. Astrue, 638 F.3d 1324,
1330 (10th Cir. 2011). The ALJ must first determine whether the opinion is conclusive – that is,
whether it is to be accorded “controlling weight” on the matter to which it relates. Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); accord Krauser, 638 F.3d at 1330. To do so, the
ALJ:
27

must first consider whether the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques. If the answer to this question is ‘no,’
then the inquiry at this stage is complete. If the ALJ finds that the opinion is
well-supported, he must then confirm that the opinion is consistent with other
substantial evidence in the record. [...] [I]f the opinion is deficient in either of these
respects, then it is not entitled to controlling weight.
Watkins, 350 F.3d at 1300 (applying Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at
*2) (internal quotation marks and citations omitted); accord Mays v. Colvin, 739 F.3d 569, 574 (10th
Cir. 2014); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
If, however, a treating physician’s opinion is not entitled to controlling weight, the ALJ must
proceed to the next step, because “[t]reating source medical opinions are still entitled to deference
and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Watkins, 350 F.3d
at 1300; see also Mays, 739 F.3d at 574. At the second step, “the ALJ must make clear how much
weight the opinion is being given (including whether it is being rejected outright) and give good
reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight
assigned.” Krauser, 638 F.3d at 1330. If this is not done, remand is mandatory. Id. As SSR 96-2p
explains:
Adjudicators must remember that a finding that a treating source medical opinion is
not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with the other substantial evidence in the case record
means only that the opinion is not entitled to “controlling weight,” not that the
opinion should be rejected. Treating source medical opinions are still entitled to
deference and must be weighed using all of the factors provided in [§§] 404.1527 and
416.927. In many cases, a treating source’s medical opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet the test for
controlling weight.
Id. (citing SSR 96-2p, 1996 WL 374188, at *4). Hence, the absence of a condition for controlling

28

weight raises, but does not resolve the second, distinct question of how much weight to give the
opinion. Krauser, 638 F.3d at 1330-31 (citing Langley, 373 F.3d at 1120) (holding that while
absence of objective testing provided basis for denying controlling weight to treating physician’s
opinion, “[t]he ALJ was not entitled, however, to completely reject [it] on this basis”)). In weighing
the opinion, the ALJ must 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.
Id. at 1331. In applying these factors, “an ALJ must ‘give good reasons in the notice of
determination or decision’ for the weight he ultimatel[y] assign[s] the opinion.” Watkins, 350 F.3d
at 1300 (quoting 20 C.F.R. § 404.1527(d)(2)); see also SSR 96-2p, 1996 WL 374188, at *5; Doyal
v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). Without these findings, remand is required.
Watkins, 350 F.3d at 1300–01; accord Krauser, 638 F.3d at 1330. Finally, if the ALJ rejects the
opinion entirely, he must give “specific, legitimate reasons” for doing so. Watkins, 350 F.3d at
1301.
Here, Defendant contends, and the Court agrees, it can infer from the ALJ’s opinion that he
declined to give Dr. Neece’s mental health opinions controlling weight based on the ALJ’s finding
that “there are no objective or clinical findings to support the mental limitations assigned.” See
Mays, 739 F.3d at 575 (where the ALJ concluded a treating physician’s opinion “was not consistent
with the objective medical evidence,” the ALJ “implicitly declined to give the opinion controlling
29

weight”).
However, the inquiry does not stop there. See Krauser, 638 F.3d at 1330-31 (citing Langley,
373 F.3d at 1120) (holding that while absence of objective testing provided basis for denying
controlling weight to treating physician’s opinion, “[t]he ALJ was not entitled, however, to
completely reject [it] on this basis”)). Once finding that the opinion was not controlling, the ALJ
was required to consider what weight to assign based upon the factors set forth in Krauser, et al.
Here, the ALJ gave Dr. Neece’s opinions no weight based on the additional reasons that Dr. Neece
has “no expertise in the area of mental health” and “his reports are far from credible due to the
plethora of inconsistent statements regarding the severity of the claimant’s conditions and the onset
dates.” [AR 21] The Court construes these reasons as implicating factors (3), (4) and (5); however,
there is no indication in the decision that the ALJ addresses factors (1) and (2). See Robinson, 366
F.3d at 1082 (“Even if a treating physician’s opinion is not entitled to controlling weight, treating
source medical opinions are still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. §§ 404.1527 and 416.927.”) (internal quotations and brackets omitted)
(emphasis added); see also Krauser, 638 F.3d at 1330 (citing SSR 96-2p, 1996 WL 374188, at *4).
Moreover, the reasons the ALJ gives for rejecting Dr. Neece’s opinions must be “specific”
and “legitimate.” Watkins, 350 F.3d at 1301. Plaintiff contends that the ALJ’s stated reason, Dr.
Neece “has no expertise in the area of mental health,” is speculative and not supported by the record.
The Court must agree; although Dr. Neece does not set himself out as an “expert” in mental health,
the record is actually unclear as to what training and experience Dr. Neece may have in mental
health diagnoses and treatment. Nevertheless, there is nothing in the record supporting the ALJ’s
30

conclusion and, as stated above, while the ALJ determined to clarify Plaintiff’s physical limitations
based on Dr. Neece’s reports, he did nothing to clarify Plaintiff’s mental limitations, if any;
accordingly, the Court must find the conclusion is speculative at best. See Robinson, 366 F.3d at
1082 (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)) (“In choosing to reject
the treating physician’s assessment, an ALJ may not make speculative inferences from medical
reports and may reject a treating physician’s opinion outright only on the basis of contradictory
medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.”).
As for the ALJ’s other reason for rejecting the opinion – Dr. Neece’s reports are inconsistent
and lack credibility – the ALJ came to this conclusion following a discussion primarily of the
Plaintiff’s physical impairments. [AR 21] Nevertheless, it appears that the ALJ discussed two of
Dr. Neece’s reports concerning Plaintiff’s mental impairments, one dated September 5, 2012 [AR
498-500] and another undated report [AR 569-570]. [See AR 20-21] These reports do not appear to
be inconsistent with each other or with the record. The undated report states that Plaintiff had been
treated by a psychiatrist and started on Prozac in 2004, and the September 2012 report states that the
doctor’s noted severity levels of Plaintiff’s mental impairments had lasted since 2008. To the extent
the ALJ construed 2004 and 2008 as inconsistent “onset dates,” the ALJ is incorrect. Moreover, the
undated report states that Plaintiff “also attended counseling. Has records with Kaiser Permanente.
At this time she attends counseling at Spanish Peaks Mental Health. Also receives Xanax for
anxiety.” [AR 569] As set forth above in the previous section, all of these statements are supported
by the medical record. Likewise, the September 2012 report, on which (as the ALJ found) Dr.
Neece expressed mental impairment limitations based on clinical examination findings, stated he
31

had been treating Plaintiff since May 2012 for depression and anxiety; these statements are also
supported in the record through his own examinations in May and June 2012 [AR 504-505] and by
his referral of the Plaintiff to Spanish Peaks Behavioral Health Center in July 2012 [see AR 555].
Although not required to do so, the ALJ also noted two Med-9 forms completed by Dr.
Neece; the ALJ asserted an “inconsistency” in two different disability onset dates listed on the first
pages of these forms, but the Court sees that the portions actually completed by the doctor on the
second pages of the forms both denote “5-1-11" as the disability onset date. [Compare AR 489-490
with AR 564-565; see also AR 491-492] Consequently, the Court finds no inconsistencies in any
of Dr. Neece’s mental health reports reviewed by the ALJ, either with the record or with each other.
Thus, the ALJ’s reasons for rejecting Dr. Neece’s opinions appear to be neither “good” nor
“legitimate.”
Finally, Plaintiff challenges the ALJ’s assignment of “great weight” to Dr. Wharry’s opinion.
Typically, the opinion of a treating physician is “given more weight over the views of consulting
physicians or those who only review the medical records and never examine the claimant.”
Robinson, 366 F.3d at 1084 (internal quotation marks omitted). “[A]n agency physician who has
never seen the claimant is entitled to the least weight of all.” Id. But the opinion of a State agency
psychologist
may be entitled to greater weight than a treating source’s medical opinion if the State
agency ... psychological consultant’s opinion is based on a review of a complete case
record that includes a medical report from a specialist in the individual’s particular
impairment which provides more detailed and comprehensive information than what
was available to the individual’s treating source.
SSR 96-6P, 1996 WL 374180, at *3 (emphasis added).
32

In this case, the ALJ did not discuss Dr. Wharry’s opinion but summarily assigned it “great
weight” after finding insufficient duration, no long-standing concerns, and effective treatment of
Plaintiff’s mental health impairments. [AR 18] The Court finds this assignment to be unsupported
by substantial evidence in the record. Dr. Wharry’s opinion was issued in August 2011 at the time
Plaintiff’s disability claims were first denied; accordingly, Dr. Wharry’s review was not based on
a complete record. Moreover, the record she reviewed did not include a medical report from a
mental health specialist providing more detailed and comprehensive information than that available
to Dr. Neece. Consequently, the ALJ’s reasons for giving more weight to Dr. Wharry than to Dr.
Neece are not supported by the record.
The ALJ erred in failing to address all of the regulatory factors in determining the weight to
give Dr. Neece’s mental health opinions, failing to give “good” and “legitimate” reasons for
rejecting Dr. Neece’s opinions, and giving greater weight to Dr. Wharry’s mental health opinion.
Therefore, the Court must reverse the decision and remand for further consideration and/or
clarification.
C.

Whether the ALJ Properly Weighed Conflicting Physical Health Opinions
For this issue, the Plaintiff actually challenges the ALJ’s decisions regarding two physicians

who treated Plaintiff for her physical impairments, rather than identifies any “conflicting” opinions.
The Court will address each challenged opinion.
1.

Dr. Neece

Like the arguments raised in Section B, the Plaintiff contends the ALJ failed to follow the
sequential two-step inquiry with regard to Dr. Neece’s opinions concerning Plaintiff’s physical
33

impairments. Again, the Court finds the ALJ implicitly declined to give Dr. Neece’s opinions
controlling weight by finding his reports were “not supported by any objective medical evidence.”
[AR 21] As for the second step, the ALJ gave no weight to Dr. Neece’s opinions and, thus, the Court
must determine whether, based on the regulatory factors, the ALJ’s reasons are “good,” “specific”
and “legitimate.”
As with the doctor’s mental health reports, the ALJ determined Dr. Neece’s physical health
reports “are far from credible due to the plethora of inconsistent statements regarding the severity
of the claimant’s conditions and the onset dates.” [AR 21] The Court construes these reasons as
implicating factors (3) and (4); however, there is no indication in the decision that the ALJ addresses
factors (1), (2), (5) or (6) (if any). See Robinson, supra.
The ALJ cited two reports by Dr. Neece, the first dated September 5, 2012 that includes a
January 8, 2013 supplement, and the second undated. Regarding the September 5, 2012 report and
supplement, the ALJ did not explain and the Court cannot discern any “inconsistent statements
regarding the severity of the claimant’s conditions.” To the extent the report itself contains vague
references, they are explained in the supplement, and the ALJ failed to specify otherwise.
Regarding the second report, the Court agrees that, due to the omission of a date, it is unclear
whether there may be inconsistencies in Dr. Neece’s severity statements, or whether, simply, the
Plaintiff’s conditions had changed during a certain time period. In any event, to the extent material
information was missing from the record, it was incumbent upon the ALJ to contact Dr. Neece to
attempt to obtain this information so to develop a complete record. See 20 C.F.R. § 404.1512(d);
see also Fleetwood v. Barnhart, 211 F. App’x 736, 741 (10th Cir. 2007) (“When evidence from the
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claimant’s treating doctor(s) is inadequate to determine if the claimant is disabled, the Commissioner
must contact the treating doctor(s) to determine if additional needed information is available.”).
Instead, the ALJ determined to arrange a consultative examination of the Plaintiff for her
physical impairments. [AR 44] Certainly, the ALJ was authorized to do so; however, such
examination is typically ordered only after the SSA is unable to obtain the needed information from
the treating source. See 20 C.F.R. § 404.1512(d)(1) and (e). And, ordering the examination, in
itself, did not relieve the ALJ from providing “good,” and “legitimate” reasons for rejecting Dr.
Neece’s opinions regarding Plaintiff’s physical impairments.
The Court concludes the ALJ erred by failing to consider all of the regulatory factors for a
treating physician’s opinion, and the ALJ’s decision to give no weight to Dr. Neece’s opinions
regarding Plaintiff’s physical impairments is not supported by substantial evidence in the record.
Thus, the Court must remand to the Commissioner for further consideration and/or clarification.
2.

Dr. Rheaume

The ALJ found the following with respect to Plaintiff’s podiatrist, Gordon Rheaume, DPM:
The claimant’s podiatrist characterized her neuropathy as severe (9F, 14F). Gordon
Rheume [sic], DPM, completed a form on March 8, 2013 indicating that he provided
medical treatment to the claimant for her diabetic neuropathy. He limited the
claimant to walking only 30 minutes at a time due to her diabetic neuropathy and
could work from one to two hours on her feet during an eight-hour workday if done
in 30 minute increments. The objective medical findings sited [sic] that supported
the restrictions were, “patient complains of neuropathy, cannot stand or walk long
distances, hard to feel gas and brake pedals to drive.” (18F). From the record, it
appears that Dr. Rheume only saw the claimant on three occasions. While he
characterized her neuropathy as severe, it appears that he based the opinion on the
claimant’s subjective reports versus his own objective findings. The undersigned
gives this opinion some weight and finds that it is consistent with a functional
limitation that the claimant should only occasionally he exposed to unprotected
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heights due to neuropathy in her feet, potentially causing gait instability.
[AR 19-20] Plaintiff contends that the ALJ erred in failing to complete the two-step inquiry for
treating physicians and in providing improper reasons for giving only “some weight” to the doctor’s
opinion. Defendant counters arguing Dr. Rheaume is “not a treating physician,” and the Tenth
Circuit has repeatedly affirmed discounting a doctor’s opinion based merely on a claimant’s
subjective beliefs. Plaintiff replies that Defendant improperly makes a post hoc argument regarding
Dr. Rheaume’s treating physician status and inconsistently promotes the ALJ’s decision regarding
Plaintiff’s subjective beliefs despite the ALJ’s finding that Plaintiff’s neuropathy is a severe
medically determinable impairment.
First, the Court agrees that the ALJ neither challenged, nor even mentioned, whether Dr.
Rheaume was a treating physician merely because he saw the Plaintiff 2-3 times over the relevant
period. He did not question whether Dr. Rheaume treated the Plaintiff for neuropathy; accordingly,
it appears that the ALJ properly considered Dr. Rheaume a treating physician. And, as with Dr.
Neece, the Court finds the ALJ implicitly declined to give Dr. Rheaume’s opinion controlling weight
by finding his report was “based ... on the claimant’s subjective reports versus his own objective
findings.” See Mays, 739 F.3d at 575. Accordingly, the ALJ was required to proceed to step 2 to
determine what weight to assign Dr. Rheaume’s opinion using all regulatory factors.
The ALJ gave Dr. Rheaume’s opinion “some” weight because the doctor “only saw the
claimant on three occasions” and “based the opinion on the claimant’s subjective reports versus his
own objective findings.” [AR 19-20] The Court construes these reasons as implicating factors (1),
(2) and (3); however, there is no indication in the decision that the ALJ addresses factors (4), (5) or
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(6) (if any). See Robinson, supra.
In defining a “treating source,” the SSA provides, “We may consider an acceptable medical
source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a
year) to be your treating source if the nature and frequency of the treatment or evaluation is typical
for your condition(s).” 20 C.F.R. § 404.1502. In concluding that the Plaintiff saw Dr. Rheaume,
a podiatrist, “only” three times between August 2012 and March 2013 [AR 493-494; 538; 568], the
ALJ made no mention whether seeing a podiatrist three times over the course of seven months is
“typical” or whether it would be in this case. Moreover, the ALJ failed to explain his rationale for
discounting Dr. Rheaume’s opinion characterizing Plaintiff’s neuropathy as severe based “on the
claimant’s subjective reports,” when the ALJ himself characterized the Plaintiff’s neuropathy as
severe. The ALJ’s conclusion in this instance also appears to contradict the doctor’s exam notes
[AR 493; 538] and, perhaps, the ALJ’s notation concerning “monofilament tests” [AR 19].
The Court concludes the ALJ erred by failing to consider all of the regulatory factors for a
treating physician’s opinion, and the ALJ’s decision to discount Dr. Rheaume’s opinion is not
supported by substantial evidence in the record. Thus, the Court must remand to the Commissioner
for further consideration and/or clarification.
D.

Whether the ALJ Improperly Failed to Weigh the Agency Physician’s Opinion
Plaintiff contends that the ALJ failed to weigh the opinion of the agency physician, Dr.

Ketelhohn. [See AR 69] Defendant counters that any error is harmless because “even if the ALJ had
given the doctor greater weight, [Plaintiff] still would not be disabled.” Response, docket #15 at 17.
Plaintiff replies that had the ALJ even considered Dr. Kelehohn’s more restrictive opinion, he may
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have come to different conclusions about Plaintiff’s credibility or the adoption of Dr. Neece’s
opinions. Plaintiff asserts that SSA’s regulation make consideration of all physician’s opinions
mandatory.
It is undisputed in this case that the ALJ failed to weigh, or even to mention, Dr. Ketelhohn’s
opinion. However, “[a]n ALJ must evaluate every medical opinion in the record.” Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)); see also 20 C.F.R.
§ 416.927(c). Furthermore, the social security regulations state that, unless the treating source
opinion is given controlling weight (which did not occur here), the ALJ “must” explain in the
decision the weight given to the opinions of state agency medical or psychological consultants. 20
C.F.R. § 404.1527(e)(2)(ii). The social security rulings require that an ALJ “may not ignore [the
opinions of state agency consultants,] and must explain the weight given to these opinions in their
decisions.” SSR 96-6P, 1996 WL 374180, at *1 (July 2, 1996).
In failing to even mention Dr. Ketelhohn’s opinion in his decision, it is clear that the ALJ
did not satisfy these requirements. The parties and the Court can only speculate as to how the ALJ
may have considered the other evidence in the case if he had taken Dr. Ketelhohn’s opinion under
consideration. Therefore, the Court must remand the decision to the Commissioner for further
consideration. See Threet v. Barnhart, 353 F.3d 1185, 1192 (10th Cir. 2003) (failure to consider all
relevant evidence in accordance with the regulations necessitates remand).
E.

Whether the ALJ Sufficiently Found the Plaintiff’s Testimony Not Entirely Credible
Plaintiff argues that the ALJ’s “credibility finding is far too conclusory (or even boilerplate)

to provide any significant assistance in determining which parts of plaintiff’s testimony are credible
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and which are not.” Opening Brief, docket #14 at 46. Because the Court remands the ALJ’s
decision for further consideration and clarification as to missing information and application of the
law, the agency physician’s opinion on Plaintiff’s physical impairments and the weight of certain
doctor’s opinions, the Court need not decide whether the ALJ’s credibility analysis is flawed.
Rather, the Court directs that, upon remand, the ALJ re-evaluate Plaintiff’s credibility after fully
considering all relevant evidence and applying the correct legal standards. See Fleetwood, 211 F.
App’x at 741.
CONCLUSION
In sum, the Court must conclude that the ALJ’s decisions to find Plaintiff’s mental
impairments “not severe” based on duration, to reject Dr. Neece’s opinions concerning Plaintiff’s
mental and physical impairments, and to discount Dr. Rheaume’s opinion concerning Plaintiff’s
neuropathy are not supported by substantial evidence in the record as a whole. Further, the ALJ
failed to apply the correct legal standards in omitting any consideration of the agency physician’s
opinion concerning Plaintiff’s physical impairments.

Upon remand, the Court directs the

Commissioner to reconsider the decision in light of these deficiencies and to reassess the Plaintiff’s
credibility based on any new findings.
Therefore, the decision of the ALJ that Plaintiff Michelle Vasquez was not disabled is
REVERSED AND REMANDED to the Commissioner for further consideration and/or clarification
in accordance with this order.

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Dated at Denver, Colorado this 11th day of March, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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