DeHerrera v. Colvin

Filing 19

ORDER: The decision of the Commissioner is REVERSED and REMANDED for further findings. by Judge R. Brooke Jackson on 9/15/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 16-cv-02293-RBJ
JUSTIN J. DEHERRERA
Plaintiff,
v.
NANCY A. BERRYHILL, * Acting Commissioner of Social Security
Defendant.

ORDER

This matter is before the Court on review of the Social Security Administration (“SSA”)
Commissioner’s decision denying claimant Justin J. DeHerrera’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the Social
Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below,
the Court reverses and remands the Commissioner’s decision.
STANDARD OF REVIEW
This appeal is based upon the administrative record and the parties’ briefs. In reviewing
a final decision by the Commissioner, the District Court examines the record and determines
whether it contains substantial evidence to support the Commissioner’s decision and whether the
Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th
Cir. 1996). A decision is not based on substantial evidence if it is “overwhelmed by other
*

Effective January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. Pursuant to
rule 25(d) of the Federal Rules of Civil procedure, Nancy A. Berryhill is therefore substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.

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evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial
evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may also be appropriate if
the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal
standards have been followed. Winfrey, 92 F.3d at 1019.
BACKGROUND
Mr. DeHererra was born in 1976 and is now 40 years old. See R. 25. He has a high
school education. R. 60. He has worked as a day laborer, construction laborer, truss laborer,
restaurant dishwasher, and golf course laborer. R. 174.
In March 2009 Mr. DeHerrera was in a car accident. R. 220, 796. He sustained right
shoulder and elbow injuries, along with a neck injury. See R. 796. An MRI following the
accident showed a herniated disc. R. 493, 501–502. Since the accident Mr. DeHerrera’s
resulting neck pain has been treated intermittently with epidural injections. See R. 217–221,
797–801. His neck pain increasingly resulted in pain and numbness in his shoulders and arms,
and occasionally seizure-like symptoms triggered by moving his neck. See, e.g., R. 779–81.
Additionally, Mr. DeHerrera fractured a toe on his right foot in 2012, which affected his
gait. See R. 324, 796. He has used physical therapy intermittently to address the resulting gait
issues. See, e.g., R. 466–77. In 2014 a cut on his right hand became infected and required
surgical debridement. R. 749, 767–68. Since the surgery, Mr. DeHerrera has had difficulty
using and closing his right hand. R. 45, 202.
Mr. DeHerrera also suffers from depression. See, e.g., R. 202. He has suffered from
mental problems since he was 14, and his depression has recently become more severe. R. 18.

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In 2014 he participated in group therapy sessions for three months, and had one individual
therapy session. R. 645–54.
A. Procedural History.
Mr. DeHerrera filed a claim for disability insurance benefits on February 22, 2013 and
supplemental security income benefits on January 15, 2014. See R. 14, 34, 146. Mr. DeHerrera
alleged disability beginning March 16, 2009. R. 14. His claims for disability benefits were
denied on January 17, 2014. R. 66–69. Mr. DeHerrera then requested a hearing, which was held
before Administrative Law Judge (“ALJ”) Earl W. Shaffer on April 16, 2015. R. 32. The ALJ
issued a decision denying benefits on May 5, 2015. R. 11–13. The Appeals Council denied Mr.
DeHerrera’s Request for Review on August 2, 2016, rendering the ALJ’s determination the final
decision of the Commissioner for purposes of judicial review. R. 1–3. Mr. DeHerrera filed a
timely appeal in this Court.
B. The ALJ’s Decision.
The ALJ issued an unfavorable decision after evaluating the evidence according to the
SSA’s standard five-step process. R. 14–26. First, the ALJ found that Mr. DeHerrera had not
engaged in substantial gainful activity since his alleged onset date of March 16, 2009. R. 16. At
step two, the ALJ found that Mr. DeHerrera had the severe impairment of degenerative disc
disease of the cervical spine. Id. The ALJ found that the following alleged conditions or
impairments either did not represent medically determinable impairments or were nonsevere:
seizures/blurred vision/“vertigo cramps;” a broken metatarsal bone in the right foot;
hands/wrist/right arm issues; knee issues; obesity; and mental impairments, including
posttraumatic stress disorder, major depression and cognitive deficits. R. 17–19. At step three,
the ALJ concluded that Mr. DeHerrera did not have an impairment or combination of

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impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. R. 20.
The ALJ then found that Mr. DeHerrera retained the residual functional capacity (“RFC”)
to perform light work at the unskilled level, except that Mr. DeHerrera is able to stand, walk, and
sit for six hours in an eight-hour day. R. 20. The ALJ noted additionally Mr. DeHerrera should
limit pushing and pulling with the upper and lower extremities; should not climb ladders, ropes,
or scaffolds; should not crawl; should limit his overhead reaching; and should avoid exposure to
extreme cold, vibration, unprotected heights and major industrial machinery. Id.
At step four, the ALJ determined that Mr. DeHerrera is unable to perform any of his past
relevant work. R. 25. At step five, the ALJ determined that “there are jobs that exist in
significant numbers that the claimant can perform.” R. 25–26. As a result, the ALJ concluded
that Mr. DeHerrera was not disabled. R. 26
DISCUSSION
Mr. DeHerrera contends that the ALJ lacked valid reasons for rejecting two of Mr.
DeHerrera’s consultative doctors’ opinions at the step three RFC determination phase: Dr.
Rodriguez’s opinion of mental impairments and Dr. Campbell’s opinion of physical
impairments. 1 The Court will address each argument in turn.
A. Dr. Rodriguez’s Opinion.
Mr. DeHerrera contends that the ALJ improperly gave very little weight to Dr.
Rodriguez’s opinion about Mr. DeHerrera’s mental impairments in assigning his mental RFC.
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Mr. DeHerrera’s complaint alleged that the ALJ failed to adequately evaluate and weigh the treating,
examining, and non-examining physicians’ opinions; lacked support for the RFC finding; failed to
adequately develop the record; and failed to properly assess Mr. DeHerrera’s credibility. ECF No. 1 at 2.
However, because Mr. DeHerrera failed to address any of these allegations in his briefing before this
Court, these arguments are deemed waived. See, e.g., Wall v. Astrue, 561 F.3d 1048, 1066 (10th Cir.
2009) (upholding the district court’s finding that an issue was waived when claimant’s counsel “failed to
present any developed argumentation” about that issue).
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ECF No. 14 at 7. During an attorney-requested examination, Dr. Rodriguez diagnosed Mr.
DeHerrera with “posttraumatic stress disorder (related to abuse as a child and witnessing fire that
resulted in the deaths of family and friends) and major depressive disorder.” R. 18; see also R.
789–91. Further, Dr. Rodriguez opined that Mr. DeHerrera “was moderately or markedly
impaired in most areas of mental functioning, and would be off-task thirty percent of the time
and absent from a job at least three days per month.” ECF No. 14 at 7; see R. 792–93.
Despite Dr. Rodriguez’s diagnoses, the ALJ classified any alleged mental impairments
including posttraumatic stress disorder, major depression, and cognitive deficits as non-severe.
R. 18–19. The ALJ accordingly found that Mr. DeHerrera had the mental RFC for unskilled
work. R. 23. In determining Mr. DeHerrera’s level of mental impairment and mental RFC, the
ALJ noted that he was assigning “[v]ery little weight” to Dr. Rodriguez’s medical source
statement. R. 19. In particular, the ALJ noted that:
Although Dr. Rodriquez [sic] is an acceptable medical source, he is not a treating
psychologist and he saw the claimant only one time in the context of an evaluation
set up by the claimant’s attorney. More importantly, the mental status examination
findings of Dr. Rodriquez [sic] are inconsistent with those of the claimant’s
medical care providers . . . and are also inconsistent with the record of minimal
mental health treatment during the period at issue in this case.
R. 19. Mr. DeHerrera contends that the ALJ’s determination of the weight to be given to Dr.
Rodriguez’s opinion was based upon impermissible considerations. ECF No. 14 at 8. The Court
will address each of these considerations in turn.
1. Dr. Rodriguez Was Not a Treating Physician, and Saw Mr. DeHerrera Only Once.
Mr. DeHerrera alleges that the ALJ improperly considered his treatment history with Dr.
Rodriguez. Id. The ALJ is required to evaluate every medical opinion using the factors set out
in SSA regulations, which include whether the medical opinion comes from a treating source.
See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). A treating source is an acceptable medical
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source who has provided medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with the claimant. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An
acceptable medical source is not a treating source if the claimant’s relationship is based solely on
the claimant’s “need to obtain a report in support of [his] claim for disability.” 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2).While an ALJ may consider the existence of a treatment
relationship, the absence of such a relationship may not be the sole reason for rejecting such a
medical opinion. Quintero v. Colvin, 567 F. App’x 616, 620 (10th Cir. 2014) (citing Chapo v.
Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012).
In accordance with the regulatory factors, the ALJ noted that Dr. Rodriguez was not Mr.
DeHerrera’s treating source, but was instead a consultative physician with whom Mr. DeHerrera
met solely for the purposes of his disability determination. R. 19. Mr. DeHerrera disputes this
ground for discounting Dr. Rodriguez’s opinion, arguing that under such logic, “‘the opinions of
consultative examiners would essentially be worthless, when in fact they are often fully relied on
as the dispositive basis for RFC findings.’” ECF No. 14 at 8 (quoting Chapo, 682 F.3d at 1291).
While it is true that the ALJ would not be justified in rejecting Dr. Rodriguez’s opinion solely
because he was a non-treating physician, the ALJ did not do so in this case. See R. 19. Instead,
because he assessed a variety of factors in deciding the weight to assign Dr. Rodriguez’s opinion,
the ALJ was justified in noting that Dr. Rodriguez was merely a consultative physician. See 20
C.F.R. §§ 404.1527(c), 416.927(c).
2. Mr. DeHerrera’s Attorney Hired Dr. Rodriguez.
Second, Mr. DeHerrera contests the ALJ’s reliance on the fact that Mr. DeHerrera’s
attorney requested the consultation with Dr. Rodriguez. ECF No. 14 at 8. An ALJ may not
discount a consulting examiner’s opinion solely because the examination was prepared at

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counsel’s request for purposes of a disability hearing. Quintero, 567 F. App’x at 620. The Tenth
Circuit has rejected the implication that “a consulting examiner’s opinion is necessarily less
trustworthy when it is sought or obtained by the claimant.” Id. Unlike an inquiry into whether a
treating relationship exists, the question of whether a claimant set up a consultative exam is not a
regulatory factor that an ALJ may properly consider. See id. (citing 20 C.F.R. § 404.1527(c)).
The Commissioner concedes that the ALJ’s consideration of this factor may have been
improper, but she argues that any resulting error should be deemed harmless. ECF No. 15 at 11
n.12. I agree that the ALJ erred in considering this factor, but I see no need to address the
Commissioner’s request that the error be deemed harmless in light of other fatal issues with the
ALJ’s consideration of Dr. Rodriguez’s opinion, as discussed below.
3. Comparing Dr. Rodriguez’s Statements to Mr. DeHerrera’s Physicians’ Statements.
Mr. DeHerrera also contends that the ALJ erred by rejecting Dr. Rodriguez’s statements
in favor of contradictory mental health opinions from his medical care providers without
assessing these opinions using the regulatory factors. ECF No. 14 at 9–10. Similarly, although
social worker Thomas Clemens’ findings may have corroborated Dr. Rodriguez’s findings in
some respects, Mr. DeHerrera argues that the ALJ failed to explain the weight that he was
assigning to Clemens’ findings. I agree.
The physicians’ opinions cited by the ALJ are brief mental status statements provided in
the context of Mr. DeHerrera’s medical visits to the Pueblo Community Health Center for other,
generally physical, issues. These opinions include notes that he was “alert and oriented x3,”
“oriented to time, place, person and situation,” and had “[a]ppropriate mood and affect.” See,
e.g., R. 320, 517, 531, 534. The ALJ summarized these assessments in cursory terms, noting that
they showed normal memory, mood, and affect, which contradicted Dr. Rodriguez’s findings. R.

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19. However, the ALJ failed to consider other regulatory factors that might call these
contradictory findings into question, such as the nature and extent of the treatment relationship
(e.g., “the kinds and extent of examinations and testing the source has performed”); the amount
of relevant evidence provided to support the opinions; whether the physicians were specialists in
the field of mental health; and other factors, potentially including the brevity of the opinions and
the context in which they were made. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Because the opinions at issue came from Mr. DeHerrera’s treating medical sources, they
should have been weighed accordingly. Under SSA regulations, a treating source’s opinion
merits controlling weight if it is supported by diagnostic techniques and is not inconsistent with
other substantial evidence. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, if such an
opinion does not merit controlling weight, the ALJ must determine the weight assigned to the
opinion using the regulatory factors. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003) (quoting Social Security Ruling (“SSR”) 96–2p, 1996 WL 374188 at *4). The ALJ’s
decision about the weight he assigns to a treating source’s opinion must be “sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” SSR 96–2p at *5. Additionally, “to
the extent there are differences of opinion among the medical sources, the ALJ must explain the
basis for adopting one and rejecting another, with reference to the factors governing the
evaluation of medical-source opinions set out in 20 C.F.R. §§ 404.1527(d)–(f).” Reveteriano v.
Astrue, 490 F. App’x 945, 948 (10th Cir. 2012).
In this case, the ALJ failed to provide any rationale for the weight he assigned to the
treating physicians’ opinions about Mr. DeHerrera’s mental health. The ALJ simply noted that
these opinions contradicted Dr. Rodriguez’s. R. 19. Because this Court “cannot simply presume

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the ALJ applied the correct legal standards in considering [the other sources’] opinion[s],”
remand is appropriate because the Court “cannot meaningfully review the ALJ’s determination
absent findings explaining the weight assigned to the treating physician[s’] opinion[s].” See
Watkins, 350 F.3d at 1301.
Similarly, the ALJ failed to explain how he was factoring in Mr. Clemens’ mental health
findings in his decision to reject Dr. Rodriguez’s statements. Mr. Clemens is a social worker, so
he would not be considered “an ‘acceptable medical source,’ but would instead be an ‘other
source.’” Crowder v. Colvin, 561 F. App’x 740, 744 (10th Cir. 2014) (quoting 20 C.F.R. §
416.913(a), (d)). However, an ALJ may not ignore a social worker’s opinion entirely, but
instead must apply the same factors to opinion evidence from “other sources” as he does to
“acceptable medical sources.” Id.; see also 20 C.F.R. §S 404.1527(f)(2), 416.927(f)(2) (“The
adjudicator generally should explain the weight given to opinions from [“other”] sources or
otherwise ensure that the discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning.”).
Some of Mr. Clemens’ mental health findings contradicted Dr. Rodriguez’s findings
(including that “the claimant was fully oriented”), but others may have corroborated Dr.
Rodriguez’s findings, including the diagnostic impressions of “unspecified personality disorder,
[and] unspecified episodic mood disorder.” R. 18, 646, 648, 650, 652, 653. However, aside
from providing cursory summaries of these findings, the ALJ did not explain how he was
accounting for or weighing such findings. Because Mr. Clemens’ findings may have
substantiated Dr. Rodriguez’s findings, the ALJ should have articulated his reasons for
discounting these findings. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th
Cir. 2001) (“Although the ALJ need not discuss all of the evidence in the record, he may not

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ignore evidence that does not support his decision, especially when that evidence is ‘significantly
probative.’”) (quoting Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996)).
Without more explanation, I am unable to discern either the weight assigned to Mr.
DeHerrera’s medical examiners’ or Mr. Clemens’ opinions, or the reasoning for that weight.
Thus, the ALJ’s decision to accord very little weight to Dr. Rodriguez’s opinion in favor of the
medical care providers’ contrary opinions, and despite Mr. Clemens’ potentially corroborating
statements, is not supported by substantial evidence.
4. The ALJ Compared Mental Status Exam Findings to the Amount of Treatment Obtained.
Mr. DeHerrera further argues that the ALJ erred by comparing the amount of mental
health treatment Mr. DeHerrera received with Dr. Rodriguez’s more extreme mental health
findings. ECF No. 14 at 11. Mr. DeHerrera cites Grotendorst, which provides that
“consideration of the amount of treatment received by a claimant does not play a role” in the
ALJ’s determination of severity of an impairment. 370 F. App’x 879, 882–83 (10th Cir. 2010).
However, the determination of severity cited in Grotendorst occurs at step two in the ALJ’s
sequential process, which is not at issue in this case. Instead the parties are disputing Mr.
DeHerrera’s mental RFC, which is determined at step three in the ALJ’s process.
As discussed above, in determining a claimant’s RFC, the ALJ weighs medical opinion
evidence using the regulatory factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c). One such
factor is the opinion’s consistency with the record as a whole, which may include the amount of
treatment a claimant has received. See, e.g., Harman v. Colvin, 2015 WL 5693559 at *7 (D.
Colo. Sept. 29, 2015) (upholding the ALJ’s determination that a medical source’s opinion was
inconsistent with the rest of the record, including “‘the absence of even minimal medical
management for allegedly severe symptoms of anxiety and depression.’”). Thus, in determining

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the weight to assign to Dr. Rodriguez’s opinion, it was proper for the ALJ to consider—as a part
of the record as a whole—the amount of treatment Mr. DeHerrera obtained.
B. Dr. Campbell’s Opinion.
At the request of Mr. DeHerrera’s attorney, Dr. Campbell conducted a medical evaluation
of Mr. DeHerrera on March 26, 2015. R. 24. She concluded that Mr. DeHerrera should lift only
ten pounds, avoid lifting weights over his shoulder, avoid climbing, limit his standing and
walking to three hours a day, and limit other activities such as stooping, squatting, kneeling,
crawling, and bending. R. 804. The ALJ assigned “very little weight” to Dr. Campbell’s
medical source statement in determining Mr. DeHerrera’s physical RFC, noting that:
Dr. Campbell is not a treating physician. She saw the claimant one time shortly
before the hearing . . . [Her] normal to mildly impaired findings do not match the
extreme functional limitations offered by Dr. Campbell. Furthermore, the sporadic
treatment record, showing significant gaps in medical care, is inconsistent with the
restrictions indicated by Dr. Campbell.
R. 24. In his appeal, Mr. DeHerrera contends that the ALJ lacked valid reasons for rejecting Dr.
Campbell’s opinion of physical impairments. ECF No. 14 at 14. As with the ALJ’s treatment of
Dr. Rodriguez’s statement, Mr. DeHerrera disputes each of the ALJ’s reasons for assigning very
little weight to Dr. Campbell’s statement. I will address each reason in turn.
1. Dr. Campbell Was Not a Treating Physician and Saw Mr. DeHerrera Only Once.
Mr. DeHerrera argues that the ALJ impermissibly considered the fact that Dr. Campbell
only saw Mr. DeHerrera once and never treated him. ECF No. 14 at 14. However, as noted
above with respect to Dr. Rodriguez, the ALJ is permitted to consider the existence and length of
a treatment relationship in determining the weight to assign to a medical opinion. See 20 C.F.R.
§§ 404.1527(c), 416.927(c). Thus, the ALJ properly considered whether Dr. Campbell provided
treatment for the impairment in question and the number of times she saw the claimant.

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2. Dr. Campbell’s Exam Findings Do Not Match Her Extreme Functional Limitations.
Mr. DeHerrera also argues that the ALJ impermissibly misinterpreted certain of Dr.
Campbell’s findings while ignoring others. ECF No. 14 at 14. An ALJ may not substitute his
medical judgment for that of a physician. Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir.
1996). An ALJ will be found to have overstepped his bounds by assessing whether the results of
medical tests are an adequate basis on which to make a diagnosis. Id. Moreover, an ALJ “may
not pick and choose which aspects of an uncontradicted medical opinion to believe, relying on
only those parts favorable to a finding of nondisability.” Hamlin v. Barnhart, 365 F.3d 1208,
1219 (10th Cir. 2004) (citing Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir. 1984)).
In deciding to assign very little weight to Dr. Campbell’s statements, the ALJ highlighted
the doctor’s findings that Mr. DeHerrera’s cervical range of motion was only mildly reduced; his
gait was normal without an assistive device; and he had normal reflexes, nondermatomal
diminished sensation, and a mild reduction in grip strength. R. 24. Mr. DeHerrera argues that
the ALJ misinterpreted some of Dr. Campbell’s exam results and ignored others that supported
her recommended functional limitations. ECF No. 14 at 16–17. As a result, he argues that the
ALJ erred in concluding that the doctor’s “normal to mildly impaired” findings did not match the
“extreme” functional limitations she recommended. ECF No. 14 at 17; R. 24. I agree.
With respect to Mr. DeHerrera’s cervical range of motion, the Commissioner now
concedes that the ALJ misinterpreted Dr. Campbell’s measurements. ECF No. 15 at 17 n.13.
The Commissioner does not dispute that the doctor’s range of motion measurements in fact

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varied from “less than half of normal” to “two-thirds of normal,” despite the ALJ’s interpretation
that these results indicated only a “mildly reduced” range of motion. 2 ECF No. 14 at 16.
Mr. DeHerrera further argues there is no evidence that Dr. Campbell relied on her
observations about Mr. DeHerrera’s gait, reflexes, sensation, and grip strength in determining her
recommended functional limitations. ECF No. 14 at 15; ECF No. 16 at 6. Indeed, Dr.
Campbell’s recommended functional limitations appear to be based more on the “combined
effects of the neck and back disorders with the right foot deformity” and “the index finger
deformity” than on any of the observations with which the ALJ takes issue. See R. 804, 806–08.
The Commissioner counters that the ALJ properly considered these observations in determining
how well-supported Dr. Campbell’s opinion was. ECF No. 15 at 17. Be that as it may, it was
improper for the ALJ to consider these observations—which he claimed did not “enhance” the
doctor’s opinion—while ignoring other observations that did support Dr. Campbell’s opinion.
ECF No. 15 at 18.
The ALJ ignored Dr. Campbell’s review of Mr. DeHerrera’s previous medical records,
including an MRI showing disc herniations and canal stenosis, which may have corroborated her
functional restrictions. R. 797–803. Additionally, the ALJ ignored Dr. Campbell’s finding of
positive Spurlings and Lehermitte’s tests (designed to indicate nerve irritation in the spine). R.
803. Though the Commissioner now points out previous contradictory and inconclusive
Spurlings and Lehermitte’s test results, her post-hoc analysis cannot replace the ALJ’s missing
analysis in the first instance. ECF No. 15 at 18–19 n.15. The Commissioner may bolster the
ALJ’s position with “additional support,” but she may not “invent a new ground of decision” that

2

I decline the Commissioner’s request to find harmless the “ALJ’s summary/use of shorthand.” ECF No.
15 at 17 n. 13. Instead I note that, as one of the few ostensibly “normal to mildly impaired” findings the
ALJ relied upon to effectively dismiss Dr. Campbell’s opinion, this mischaracterization was material.
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the ALJ ignored. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 n.3 (9th Cir.
2006). Thus, with respect to Dr. Campbell’s review of Mr. DeHerrera’s medical records and her
positive test results, the ALJ overlooked evidence that may have supported Dr. Campbell’s
recommended functional limitations. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235,
1239 (10th Cir. 2001) (“Although the ALJ need not discuss all of the evidence in the record, he
may not ignore evidence that does not support his decision, especially when that evidence is
‘significantly probative.’”) (quoting Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996)).
Because the ALJ ignored potentially probative evidence and misinterpreted test results
that may have supported Dr. Campbell’s recommended restrictions, the only evidence on which
he can rely for his conclusion that Dr. Campbell’s test results do not match her functional
limitations are several “normal” results that the doctor may not have relied upon at all to make
her recommendations. These results do not amount to substantial evidence supporting the ALJ’s
decision to ignore Dr. Campbell’s opinion.
3. Dr. Campbell’s Restrictions Are Inconsistent with the Amount of Treatment Obtained.
Finally, Mr. DeHerrera contests the ALJ’s consideration of the amount of treatment Mr.
DeHerrera obtained as compared to Dr. Campbell’s recommended limitations. ECF No. 14 at
18. As discussed above, however, an ALJ may consider the amount of treatment a claimant
received as part of the record against which a medical opinion is compared. Thus, it was proper
for the ALJ to consider this factor in deciding the weight to assign to Dr. Campbell’s opinion.
ORDER
For the reasons described above, the ALJ’s decision to accord very little weight to the
opinions of Dr. Rodriguez and Dr. Campbell was not supported by substantial evidence.
Although I will not opine about whether the ALJ should come to a different conclusion upon

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remand and further review, I will note that such review could impact the ALJ’s determination of
Mr. DeHerrera’s RFC and, subsequently, the ALJ’s determination at step five of other
employment for which Mr. DeHerrera might be eligible.
As a result, the Court REVERSES and REMANDS the Commissioner’s decision denying
claimant Justin J. DeHerrera’s application for disability insurance and supplemental security
income.

DATED this 15th day of September , 2017.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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