Guidry V. Colwin

Filing 18

ORDER affirming the Commissioner's final order, by Judge Lewis T. Babcock on 5/11/2017. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 16-cv-02107-LTB
SUZANNE GUIDRY
v.

Plaintiff,

NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
Plaintiff Suzanne Guidry appeals the final decision of the Acting
Commissioner of Social Security (“SSA”) denying her application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq.
I have considered the parties’ briefs (ECF Nos. 12–14) and the administrative
record (ECF No. 9) (“AR”). Oral argument would not materially assist me in
determining this appeal.
Ms. Guidry argues the Administrative Law Judge (“ALJ”) improperly
weighed the medical opinion evidence, should have found her disabled based on
SSA’s “grid rules,” erred in evaluating her credibility, and inadequately accounted
for her mental impairments and work absenteeism. As I describe below, I disagree
with these arguments. Accordingly, I AFFIRM SSA’s decision.

I. Background
A.

Facts
1.

Mental Impairments

Ms. Guidry has bipolar disorder. E.g., AR 308. Her treatments have
included medication, hospitalization, various forms of psychotherapy, and electroconvulsive treatment (“ECT”). Despite her mental illness, Ms. Guidry earned a
college degree in computer information systems and worked as an information
technology support engineer before filing for disability. AR 41.
Ms. Guidry was hospitalized in late November 2012, her first psychiatric
hospitalization in 20 years. AR 1540. She was depressed, overwhelmed at work,
and had passive suicidal ideation. Id. She was seeing her primary care physician
for psychiatric medications, and he had referred her to the hospital. AR 1540. At
the hospital, she started a new antipsychotic medication to address her paranoia,
which helped. AR 1541. When she was discharged a few days later, she planned to
request medical leave from her job so she could work six hours a day instead of
eight, a plan her treating psychiatrist thought “quite appropriate.” AR 1541. At
discharge, she was “feeling much better.” AR 1541.
She participated in group therapy at Centennial Peaks after her discharge.
She often described her job as a significant source of anxiety and stress. E.g., AR
1528, 1531, 1533, 1535, 1564. Despite being depressed and having mood swings
during the therapy, she was an “emotional leader” among the group. AR 1478.
In December 2012, she started seeing Dr. Susan Ryan, a clinical psychologist,
2

for individual psychotherapy. AR 1661. Dr. Ryan’s treatment notes reflect Ms.
Guidry’s struggles at work and with anxiety during that time. Id.
Ms. Guidry saw Dr. Gerald Chitters, a psychiatrist, for medication
management beginning in March 2013. Her mood was “bleak,” and she was “very
seriously suicidally depressed.” AR 904, 908. He adjusted her medications, e.g., AR
904, and she improved by late April, AR 719, and continued to do well in May, AR
718. In June, she took a turn for the worse. AR 717. In July, she reported she
couldn’t get out of bed and was “completely uninterested in life.” AR 715–16. She
continued to struggle in August, reporting that she couldn’t get up and was
“actively suicidal.” AR 711. In early September, her mood was unstable and she
was “sobbing” at her appointment. AR 710. Dr. Chitters raised the possibility of
electroconvulsive therapy (ECT) treatments with Ms. Guidry. Id. ECT is a
procedure, done under general anesthesia, where electric currents are passed
through the brain, intentionally triggering a brief seizure. See Mayo Clinic,
Electroconvulsive therapy (ECT) Definition, http://www.mayoclinic.org/testsprocedures/electroconvulsive-therapy/basics/definition/prc-20014161 (visited April
28, 2017). It “seems to cause changes in brain chemistry that can quickly reverse
symptoms of certain mental illnesses.” Id. But Ms. Guidry started to do much
better later in September, and while she didn’t rule out ECT, she also didn’t start it.
AR 709. She did see a doctor at Centennial Peaks Hospital, who believed ECT could
“really help her” and that she had “few other options.” AR 924.
When her mental health declined again in November 2013, she decided to try
3

ECT. AR 706. In late November 2013, Ms. Guidry saw Dr. Leon Que at Boulder
Community Hospital to discuss ECT therapy. AR 308–13. She told Dr. Que that
suicide was “an eventuality,” that she had “continuous passive death wishes” and
that she felt as though she had lost 30 IQ points. AR 308. After the appointment,
Dr. Que recommended inpatient admission, but Ms. Guidry refused. AR 313. Dr.
Que ordered a medical work–up to confirm that Ms. Guidry was a candidate for
ECT. Id. Dr. Que also predicted that Ms. Guidry would need to be admitted for
hospitalization in the near future. AR 312.
Dr. Que was right. In early December 2013, not long after her initial
consultation with Dr. Que, she was hospitalized for intrusive suicidal ideation. AR
739. She started bilateral ECT while hospitalized, AR 1611, and Dr. Que adjusted
her medications because one was interfering with the effectiveness of the ECT
treatments, AR 739, 1641. When discharged after about ten days in the hospital,
Ms. Guidry was apprehensive about going back to work. AR 316, 1642. Dr. Que
told her that her “job is not to have a job” because her focus should be on getting her
depression under control before she thought about returning to work. AR 316,
1642. Ms. Guidry never went back to work after this first round of ECT, but she
was paid through April 2014. AR 43.
In January 2014, not long after her discharge from Boulder Community
Hospital, Dr. Chitters reported that Ms. Guidry was “terrible,” felt “dumb,” and
reported that the bilateral ECT did not help. AR 700. Ms. Guidry also described
the bilateral ECT treatment’s cognitive side effects as “unbearable.” AR 429, 919.
4

However, the contemporaneous treatment records do not record any negative
cognitive side effects. See AR 1611–31.
Ms. Guidry was admitted as an in–patient at Centennial Peaks in late
January 2014 because she planned to kill herself. AR 502–04. She also started
unilateral ECT treatment. AR 677. Ms. Guidry reported the unilateral ECT did
not have negative cognitive side effects. AR 429. Her ECT psychiatrist
immediately reported she was “doing better,” with fewer obsessive thoughts, less
irritability, and “much improved” cognition. AR 678. After two treatments, she was
“belly laughing,” “happy,” and her cognition improved again. AR 672. However, a
physician at Centennial Peaks also noted that Ms. Guidry was still “impulsive.” AR
1367. He also remarked that it was “amazing she has done so well professionally”
given the severity of her mental illness. Id. The ECT treatments continued to be
effective, AR 669, and Ms. Guidry was doing “excellent” despite some issues at
work, AR 666. She was discharged from the hospital in early February. AR
1378–79.
In February 2014, Ms. Guidry started dialectical behavior therapy (in
addition to the ECT) to develop more effective coping skills. AR 429, 434. Ms.
Guidry had a history of marijuana and alcohol abuse, impulsive behavior, and
isolative behavior that she hoped the therapy would address. AR 434. She also was
stressed about losing her job, disliking her job, and six–figure student loans. AR
429. She also reported she was very depressed. AR 1369, 1371.
Nevertheless, in early March 2014, Ms. Guidry’s ECT psychiatrist reported
5

she was “doing excellent.” AR 660. He described her as “smiling, bright, cordial,
[and] focused” and noted that he “hope[d] this improvement lasts.” AR 1373.
However, she soon had a relapse, with suicidal ideation and rumination on loss. AR
657. Her doctor increased the frequency of the ECT, id., and Ms. Guidry improved
by late March, AR 654. She expressed concern about the prospect of returning to
work. Id.
Ms. Guidry was “stable” and doing “fairly well” in early April. AR 649.
However, her ECT psychiatrist tempered his description of her progress with an
explanation that she was “still a far cry from when [she] was best” and was not
“able to tolerate work.” AR 645. He further explained that her last relapse was “so
severe, it may never clear to the point of work functioning.” AR 645. But by later
April, he concluded she was doing “phenomenally.” AR 642. She had graduated
from the dialectical behavior therapy program she started in February and reported
she felt joy for the first time in years. Id. Despite this progress, he also concluded
she needed more ECT treatments to prevent another relapse. AR 640. Ms. Guidry
continued to do well throughout May. AR 636-39. Throughout her unilateral ECT
treatments, treatment records revealed normal memory and cognition. See AR
605–79; AR 935–73.
But in early June 2014, she was doing “terribly.” AR 632. She had a “clear
relapse” with suicidal ideation, which her ECT psychiatrist believed was related to
a change in her medications. Id. After adjusting her medications and continuing
ECT, she began to do better. AR 618–30.
6

But in August 2014 she had yet another relapse, and her ECT psychiatrist
concluded that she probably could not function without weekly ETC and likely could
never return to work. AR 614–15. This news upset Ms. Guidry, and it spurred her
to try and prove him wrong. AR 611. She was doing well in September and
October, AR 605–08, and told Dr. Ryan that her “thinking was somewhat better
than the months after bilateral ECT,” but she still was not as “sharp” as before
those treatments, AR 1676.
She went to Florida for part of the winter and told Dr. Ryan that she
functioned relatively well there, despite issues with obtaining treatment. AR 1677
(notes indicating that “trip went pretty well” but describing problems obtaining
medications and ECT); AR 1679–82. She said that once she returned and restarted
ECT, she felt better even though she was “zonked out” from the treatments. AR
1683.
Dr. Stuart Kutz, a psychologist, examined Ms. Guidry in May 2015 and
reviewed some medical records. AR 849–55. He concluded her attention,
concentration, persistence and pace were moderately to markedly impaired, and he
questioned whether her memory and “perhaps other cognitive functions” were
mildly impaired. AR 855. Dr. Kutz did not specify where he believed she fell on the
spectrum from moderate to marked impairment. Id.
Dr. Sara Sexton, a psychologist, reviewed some of Ms. Guidry’s medical
records in May 2015, as well as Dr. Kutz’s opinion. She generally agreed with Dr.
Kutz’s assessment but opined that Ms. Guidry’s impairments were on the moderate
7

end of the spectrum rather than the marked end. AR 72, 73–75. She concluded
that Ms. Guidry could do work that did not involve significant complexity or
judgment, had limited interaction with the general public, and did not involve
prolonged contact with co–workers or supervisors. AR 75.
In August 2015, Ms. Guidry reported she was doing well, with more energy
and fewer suicidal thoughts. AR 858–61; AR 1697–98. In October 2015, she was
walking daily, feeling a “creative spark” for the first time in years, and trying to
take an online course. AR 1701.
In November 2015, Dr. Chitters completed a medical source statement. He
opined that Ms. Guidry had some moderate and some marked impairment in
understanding and memory, in sustaining concentration and persistence, and in
social interaction. AR 1703–04.
2.

Physical Impairments

Ms. Guidry has fibromyalgia, joint pain, lower back pain related to
degenerative disc disease, and is obese. In May 2015, she saw Laura Moran, D.O.,
for an agency–ordered physical consultative examination. AR 840–45. Dr. Moran’s
examination findings and the imaging she reviewed revealed no significant
abnormalities. AR 840, 842-45. Dr. Moran concluded that Ms. Guidry could
alternate sitting, standing, and walking for eight hours a day, carry and lift about
20 pounds, bend (but not repeatedly), and do all daily self–care activities, and
perform repetitive motion and fine motor manipulation with her hands. AR 845. At
the administrative hearing, Ms. Guidry testified that nerve pain medication
8

alleviated her fibromyalgia pain throughout the day. AR 45.
B.

Procedural History
Ms. Guidry filed her claim for disability and disability insurance benefits

with SSA in June 2014, alleging disability beginning May 1, 2014. AR 150–56. Ms.
Guidry later amended the onset date to December 1, 2013. AR 43. After SSA
initially denied her claim, AR 62–78, Ms. Guidry requested a hearing, AR 88. The
hearing took place on December 18, 2015, before an ALJ. AR 37–61. On January
20, 2016, the ALJ denied Ms. Guidry’s claim, concluding that Ms. Guidry was not
disabled within the meaning of the Social Security Act. AR 17–36. Ms. Guidry
asked SSA’s Appeals Council to review the ALJ’s decision. AR 12. On June 23,
2016, the Appeals Council denied review, AR 1–6, making the ALJ’s decision the
final decision of SSA, see Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On
August 19, 2016, Ms. Guidry timely filed this appeal. (ECF No. 1.) I have
jurisdiction pursuant to 42 U.S.C. § 405(g).
II. Legal Standards
A.

SSA’s Five–Step Process for Determining Whether a Claimant Is “Disabled”
A claimant is “disabled” under Title II of the Social Security Act if she is

unable 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. § 423(d)(1)(A); see also Bowen v. Yuckert, 482 U.S.
137, 140 (1987). SSA has established a five–step sequential evaluation process for
9

determining whether a claimant is disabled and thus entitled to benefits. 20 C.F.R.
§ 404.1520.
At step one, SSA asks whether the claimant is presently engaged in
“substantial gainful activity.” If she is, benefits are denied and the inquiry stops. §
404.1520(b). At step two, SSA asks whether the claimant has a “severe
impairment”—that is, an impairment or combination of impairments that
“significantly limits [her] physical or mental ability to do basic work activities.” §
404.1520(c). If she does not, benefits are denied and the inquiry stops. If she does,
SSA moves on to step three, where it determines whether the claimant’s
impairment(s) “meet or equal” one of the “listed impairments”—impairments so
severe that SSA has determined that a claimant who has them is conclusively
disabled without regard to the claimant’s age, education, or work experience. §
404.1520(d). If not, SSA goes to step four. At step four, SSA determines the
claimant’s residual functional capacity (“RFC”)—that is, what she is still able to do
despite her impairments, and asks whether the claimant can do any of her “past
relevant work” given that RFC. § 404.1520(e). If not, SSA goes to the fifth and
final step, where it has the burden of showing that the claimant’s RFC allows her to
do other work in the national economy in view of her age, education, and work
experience. § 404.1520(g). At this step, SSA’s “grid rules” may mandate a finding
of disabled or not disabled without further analysis based on the claimant’s age,
education, and work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2. In contrast
with step five, the claimant has “the burden of establishing a prima facie case of
10

disability at steps one through four.” Doyal, 331 F.3d at 760.
B.

Standard for Reviewing SSA’s Decision
My review is limited to determining whether SSA applied the correct legal

standards and whether its decision is supported by substantial evidence in the
record. Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003). With regard
to the law, reversal may be appropriate when SSA 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). With regard to the
evidence, I must “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 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 record must demonstrate that the ALJ considered all of the evidence,
but an ALJ is not required to discuss every piece of evidence. Clifton v. Chater, 79
F.3d 1007, 1009–10 (10th Cir. 1996). I may not reweigh the evidence or substitute
my judgment for that of the ALJ. Casias v. Secretary of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991).
III. The ALJ’s Decision
The ALJ followed the five–step analysis outlined above. At step one, the ALJ
11

found that Ms. Guidry had not engaged in substantial gainful activity since her
alleged onset date and met the insured requirements of the Social Security Act
through December 31, 2019. AR 19. At step two, the ALJ found Ms. Guidry had
several severe impairments: fibromyalgia, obesity, and bipolar disorder. Id. At step
three, the ALJ concluded that during the relevant period, Ms. Guidry ’s
impairments did not meet or equal any of the “listed impairments” that mandate a
conclusive finding of disability under the social security regulations. AR 19–21. At
step four, the ALJ found that Ms. Guidry had the following RFC:
[T]he claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
except that claimant is limited to unskilled work. She can
frequently handle and occasionally climb, balance, stoop,
kneel, crouch and crawl. Mentally, the claimant should
have limited exposure to the public and co–workers.
AR 21. The ALJ determined that Ms. Guidry was unable to perform any past
relevant work and proceeded to step five. AR 29. At step five, the ALJ determined
that given Ms. Guidry’s age, education, work experience, and RFC, there were jobs
that exist in the national economy that Ms. Guidry can perform, specifically a
housekeeper, laundry worker, and mail room clerk. AR 30. The ALJ accordingly
concluded that Ms. Guidry was not disabled under the Social Security Act during
the relevant period. AR 31.
IV. Analysis
A.

Opinion Evidence
Ms. Guidry argues the ALJ improperly discounted the opinions of Ms.

12

Guidry’s treating and examining sources in favor of the opinion of Dr. Sexton, a
consulting source.
The amount of deference due to an opinion about a claimant’s impairments
varies depending on its source. An ALJ should “[g]enerally . . . give more weight to
opinions from [a claimant’s] treating sources.” 20 C.F.R. § 404.1527(c)(2). In
deciding how much weight to give a treating source opinion, an ALJ must complete
a two-step inquiry. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). An
ALJ must first determine whether the opinion qualifies for “controlling weight.” Id.
An opinion from a treating source is entitled to controlling weight if it is both “wellsupported by medically acceptable clinical and laboratory diagnostic techniques”
and consistent with other substantial evidence in the record. See Titles II & XVI:
Giving Controlling Weight to Treating Source Med. Opinions, SSR 96-2P, 1996 WL
374188, at *1 (S.S.A. July 2, 1996). Even if not entitled to controlling weight, a
treating source’s opinion “may still be entitled to deference.” Id. The amount of
deference due depends on weighing several 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.
20 C.F.R. §§ 404.1527(c), 416.927(c). An ALJ uses these same factors to analyze
opinions from examining and consulting medical sources. §§ 404.1527(c),
13

416.927(c). “It is the ALJ’s duty to give consideration to all the medical opinions in
the record. [Sh]e must also discuss the weight [s]he assigns to such opinions.”

Keyes–Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citation omitted).
An ALJ may dismiss or discount an opinion from a treating source only if she
provides “specific, legitimate reasons” for the rejection. Chapo v. Astrue, 682 F.3d
1285, 1291 (10th Cir. 2012).

1.

Dr. Sexton

The ALJ here credited Dr. Sexton’s opinion that Ms. Guidry could do work if
it not involve significant complexity or judgment, involved limited interaction with
the general public, and did not involve prolonged contact with co–workers or
supervisors. AR 75. Ms. Guidry takes issue with the significant weight the ALJ
afforded Dr. Sexton’s opinion because Dr. Sexton did not examine Ms. Guidry and
her records review did not include Dr. Chitters’s or Dr. Ryan’s files.
As for the first argument—Dr. Sexton did not examine Ms. Guidry—I agree
with the Commissioner that this factor is not dispositive. Whether a medical
professional examines a claimant is one of the six factors relevant to weighing an
opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). But even where, as here, that factor
weighs against an opinion, other factors can weigh heavily enough that the opinion
is entitled to great weight.
As for the second argument—that Dr. Sexton’s review of the record was too
limited—it fails because the ALJ considered the entire record in deciding what
14

weight to give Dr. Sexton’s opinion. The weight an ALJ may give to the opinions of
nonexamining sources “depend[s] on the degree to which they provide supporting
explanations for their opinions,” and an ALJ should “evaluate the degree to which
these opinions consider all of the pertinent evidence in [a] claim, including opinions
of treating and other examining sources.” 20 C.F.R. § 416.927(c)(3). The ALJ here
extensively discussed Dr. Chitters’s and Dr. Ryan’s files as well as Dr. Chitters’s
opinion. AR 26–27. She explained that those records did not support a finding of
disability, giving specific reasons, with citations to the record, for her decision. Id.
While Dr. Chitters’s records showed that Ms. Guidry had times when she struggled
significantly with her mental illness, they also reflected times when Ms. Guidry did
well: when she was going to the local YMCA for exercise, reporting good results
from treatment, and taking on–line classes. AR 27. Ms. Guidry argues these
records reflect the waxing and waning of her mental illness rather than evidence
she was not disabled. While this may be a valid view of the record, I may not
substitute my judgment for the ALJ’s. Casias, 933 F.2d at 800.
Additionally, the ALJ discussed Dr. Ryan’s records and gave specific reasons
for finding some of Ms. Guidry’s complaints (which were reflected in Dr. Ryan’s
notes) less than fully credible. AR 26. Thus, nothing in the new records rendered
Dr. Sexton’s opinion stale or unsupported by substantial evidence. See Tarpley v.

Colvin, 601 F. App’x 641, 644 (10th Cir. 2015) (holding ALJ reasonably gave
significant weight to the opinion of a nontreating agency physician even though the
physician did not review later opinions issued by other physician or subsequent
15

medical records, where ALJ throughly reviewed records and nothing in them
suggested a material change in the claimant’s condition). The ALJ adequately
considered the evidence, sufficiently explained the weight she afforded to Dr.
Sexton’s opinion, and I accordingly decline to reverse her decision on this basis. See

Keyes–Zachary, 695 F.3d at 1166.
2.

Dr. Chitters

In a related argument, Ms. Guidry argues the ALJ should not have
discounted Dr. Chitters’s opinion that Ms. Guidry had some moderate and some
marked impairment in understanding and memory, in sustaining concentration and
persistence, and in social interaction. However, the ALJ gave “specific, legitimate
reasons” for not giving Dr. Chitters’s opinion controlling weight and partially
rejecting it. See Chapo, 682 F.3d at 1291. The ALJ permissibly pointed to evidence
showing Dr. Chitters’s opinion was inconsistent with the record, including his own
treatment notes. For example, Dr. Chitters’s notes reflected “few complaints and no
clinical or objective findings of any significant cognitive or memory problems,” even
though he opined that Ms. Guidry was markedly limited in her abilities to
understand, remember, and carry out short instructions, maintain concentration for
extended periods, complete a normal workday or workweek, and perform at a
consistent pace. AR 27. He also failed to conduct any objective testing to support
his opinion about Ms. Guidry’s impairments. Id. The ALJ also pointed to other
evidence in the record that undermined Ms. Guidry’s allegations of disability and
Dr. Chitters’s opinion: she read a lot, she reported being the most productive worker
16

on her team, and she was interviewed for a promotion. AR 27. The ALJ’s decision
to partially discount Dr. Chitters’s opinion is well–supported by the record, and I
will not disturb it.
3.

Dr. Kutz

Ms. Guidry also takes issue with the weight the ALJ afforded to Dr. Kutz’s
opinion. But as with the other medical opinions, the ALJ supported her assessment
with evidence in the record. She concluded that to the extent Dr. Kutz opined Ms.
Guidry had marked limitations, his opinion was inconsistent with Ms. Guidry’s
activities of daily living. AR 28. That is a valid reason for giving less weight to Dr.
Kutz’s opinion. Newbold v. Colvin, 718 F.3d 1257, 1266 (10th Cir. 2013) (holding
ALJ permissibly rejected limitations imposed by treating physician that were
inconsistent with the claimant’s activities of daily living). Morever, the ALJ did not
discount Dr. Kutz’s opinion in its entirety. Dr. Kutz opined that Ms. Guidry’s
attention, concentration, persistence and pace were moderately to markedly
impaired, and he questioned whether her memory and “perhaps other cognitive
functions” were mildly impaired. AR 855. Dr. Sexton reviewed this opinion (and
many medical records) and agreed that Ms. Guidry was impaired, but she concluded
that the impairments were on the moderate end of the spectrum rather than the
marked end. AR 72, 73–75. The ALJ thus actually credited Dr. Kutz’s opinion to
the extent that it endorsed mild to moderate limitations. Given that Dr. Kutz did
not specify where Ms. Guidry fell on the spectrum from moderate to marked
impairment, it was more than reasonable for the ALJ to credit Dr. Sexton’s
17

well–supported opinion that it was more on the moderate side.
4.

Other Evidence

Finally, Ms. Guidry makes a passing suggestion, in her statement of facts,
that the ALJ improperly weighed the “opinions” of Dr. Que and Dr. Ryan. However,
neither Dr. Que nor Dr. Ryan provided formal opinions. Ms. Guidry presumably
thinks the ALJ should have extrapolated their opinions from their treatment
records. Because Ms. Guidry fails to develop this vague argument in any
meaningful way, I consider it waived. See Keyes-Zachary, 695 F.3d at 1161 (“We
will consider and discuss only those . . . contentions that have been adequately
briefed for our review.”).
B.

Step Three
Ms. Guidry argues the ALJ should have found that Ms. Guidry’s bipolar

disorder met or equaled Listing 12.04, the listing for depressive, bipolar, and
related disorders. The listings at 20 C.F.R. pt. 404, subpt. P, app. 1 are examples of
medical conditions which ordinarily prevent an individual from engaging in any
gainful activity. Each impairment is defined in terms of several specific medical
signs, symptoms, or laboratory test results. Id. For a claimant to show that her
impairment matches a listing, it must meet all of the specified medical criteria. See
Titles II and XVI: Finding Disability on the Basis of Med. Considerations Alone-the
Listing of Impairments and Med. Equivalency, SSR 83-19 (1983), 1983 WL 31248,
at *2 (“An impairment ‘meets’ a listed condition . . . only when it manifests the
specific findings described in the set of medical criteria for that listed
18

impairment.”). An impairment that manifests only some of those criteria, no matter
how severely, does not qualify. See id.
At the time of the ALJ’s decision in January 2016, the criteria for Listing
12.04 were:
A.

Medically documented persistence, either continuous or intermittent, of one
of the following:
1.

Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or

2.

Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful
consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or

3.

Bipolar syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes (and
currently characterized by either or both syndromes);

AND
B.

Resulting in at least two of the following:
1.
2.

Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
19

3.
4.

Marked difficulties in maintaining concentration, persistence, or pace;
or
Repeated episodes of decompensation, each of extended duration;

OR
C.

Medically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to
do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
1.
2.

3.

Repeated episodes of decompensation, each of extended duration; or
A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the individual
to decompensate; or
Current history of 1 or more years’ inability to function outside a
highly supportive living arrangement, with an indication of continued
need for such an arrangement.

20 C.F.R. Pt. 404, subpt. p, app. 1 (effective August 12, 2015 to May 23, 2016).
The ALJ concluded that Ms. Guidry did not meet the paragraph B or paragraph C
criteria. AR 20. She did not discuss the paragraph A criteria. Id.
With respect to the paragraph B criteria, the ALJ concluded that Ms. Guidry
did not have any extreme or marked limitations in her ability to (1) understand,
remember, or apply information; (2) interact with others, concentrate, persist, or
maintain pace, or (3) adapt or manage herself. In making this conclusion, she
credited Dr. Sexton’s opinion that Ms. Guidry had only mild to moderate
impairments. Id. The ALJ also credited Dr. Sexton’s opinion that Ms. Guidry had
one to two episodes of decompensation when she was hospitalized but concluded
those isolated instances were insufficient to meet the requirement of “repeated”
episodes. Id. at 20–21. As I already described above, the ALJ gave good reasons for
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the weight she assigned to these opinions, including describing in detail the
evidence suggesting Ms. Guidry did not have extreme or marked impairments in
these areas. Thus, substantial evidence—“more than a scintilla, but less than a
preponderance”—supports the ALJ’s decision on this point. Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007).
With respect to the paragraph C criteria, the ALJ concluded that because Ms.
Guidry could not meet the requirement for “[r]epeated episodes of decompensation,
each of extended duration” under paragraph B, she also could not meet that same
requirement under paragraph C. AR 21. She also concluded that Ms. Guidry could
not show a residual disease process or a current history of one or more years’
inability to function outside a highly supportive living arrangement. Id. These
conclusions find support in Ms. Guidry’s testimony about her activities of daily
living, which include driving and handling finances, in Dr. Sexton’s opinion, and in
medical records that show substantial improvement in Ms. Guidry’s condition with
treatment. Accordingly, the ALJ pointed to substantial evidence to support her
interpretation of the record, and I will not disturb her conclusion that Ms. Guidry
did not meet Listing 12.04.
C.

Credibility Determination
Ms. Guidry also challenges the ALJ’s assessment of her credibility.

“Credibility determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence.
However, findings as to credibility should be closely and affirmatively linked to
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substantial evidence and not just a conclusion in the guise of findings.” Newbold v.

Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (quotation omitted).
The ALJ gave several reasons, with specific support from the record, for
finding Ms. Guidry less than fully credible. She accurately pointed out that Ms.
Guidry had made inconsistent statements about her disability, testifying she could
not get out of bed four days a week but never reporting this to her providers. AR
23. Ms. Guidry insists she did actually report this to her providers, pointing to a
record where she once reported she could not get out of bed. But once saying she
couldn’t get out of bed—before the alleged disability onset date—is not the same as
reporting she regularly remains in bed four days a week, and the ALJ’s
determination her testimony was inconsistent with the record is supported by
substantial evidence in the record.
Even if that particular finding was inconsistent with the record, it would not
alter my decision because the ALJ provided several additional reasons for her
credibility determination. See Pickup v. Colvin, 606 F. App’x 430, 433 (10th Cir.
2015) (unpublished) (affirming ALJ’s credibility determination despite some
“problems” with it because substantial evidence supported the ALJ’s determination
that the claimant was not fully credible). She reported only a “little” memory
impairment from her ECT treatments to Dr. Kutz but testified to significant
problems. AR 23. She testified she could not get along with others, but she was an
“emotional leader” in group therapy, found the group supportive, and reported it
was “exactly what I needed.” Id. Despite struggling for years with mental illness,
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Ms. Guidry was able to get a college degree and work at highly skilled jobs. Id.
These are all legitimate reasons for the ALJ’s credibility assessment.
Morever, I disagree with Ms. Guidry’s suggestion that the ALJ improperly
considered that her depressive symptoms were related to distaste for her job and
financial concerns. The ALJ did not, as Ms. Guidry suggests, dismiss Ms. Guidry’s
impairments because of their source. Instead, the ALJ concluded that her
impairments were mild to moderate rather than severe, and she observed that they
were triggered by job and financial stress. AR 23. This accurate observation does
not undermine the ALJ’s findings.
D.

Mental Limitations and Absenteeism
Ms. Guidry also argues that the ALJ’s RFC determination failed to account

for all her mental impairments and the fact that, in Ms. Guidry’s view, her mental
illness would require her to regularly miss work. RFC represents “the most [the
claimant] can still do despite [her] limitations,” 20 C.F.R. § 404.1545(a)(1), and
must include “all of [the claimant’s] medically determinable impairments,” id. §
404.1545(a)(2). An RFC determination is an administrative assessment based on
all the evidence of how the claimant’s impairments and related symptoms affect his
or her ability to perform work-related activities. Young v. Barnhart, 146 Fed. App’x
952, 955 (10th Cir. 2005) (unpublished). The final responsibility for determining
the claimant’s RFC rests with the Commissioner and is based upon all the evidence
in the record. Id.; see also Titles II & XVI: Assessing Residual Functional Capacity
in Initial Claims, SSR 96-8P 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (indicating
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that the RFC assessment by the ALJ must include a discussion of why reported
symptom-related functional limitations and restrictions can or cannot reasonably be
accepted as consistent with the medical and other evidence).
As I already explained above, the ALJ gave good reasons for the weight she
assigned to medical opinions and to her credibility assessment. Using those
reference points, she asked the vocational expert whether jobs existed that someone
with Ms. Guidry’s limitations could perform. Among other things, the ALJ included
a limitation to unskilled jobs, which accounted for her mild to moderate mental
impairments. See Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016) (“[W]e have
held in a published opinion that an administrative law judge can account for
moderate limitations by limiting the claimant to particular kinds of work activity.”).
While Ms. Guidry argues this limitation was insufficient, I may not reweigh the
evidence. Instead, I look only to whether substantial evidence supports the ALJ’s
decision. Lax, 489 F.3d at 1084. The ALJ’s lengthy and detailed opinion here easily
meets that standard.
V. Conclusion
For the reasons described above, I AFFIRM the Commissioner’s final order.
Dated: May 11 , 2017 in Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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