Troe v. Colvin

Filing 21

ORDER by Magistrate Judge Michael E. Hegarty on 05/30/2017. The decision of the ALJ that Plaintiff Mark Ronald Troe was not disabled since 3/1/2011 is AFFIRMED IN PART as to Plaintiffs physical impairments, REVERSED IN PART as to Plaintiffs mental impairments, AND REMANDED to the Commissioner for further consideration in accordance with this order. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02794-MEH
MARK RONALD TROE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff Mark Ronald Troe appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying his application for disability and disability insurance benefits
(“DIB”), originally filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433.
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 affirms in part and
reverses in part the ALJ’s decision, and remands the matter to the Commissioner for further
consideration.1

1

The parties consented to this Court’s jurisdiction on January 27, 2017. ECF No. 13.

BACKGROUND
I.

Procedural History
Plaintiff seeks judicial review of the Commissioner’s decision denying his application for

DIB filed on August 9, 2013. [Administrative Record (“AR”) 164-165] After the application was
denied on March 13, 2014 [AR 103-109], an Administrative Law Judge (“ALJ”) scheduled a hearing
upon the Plaintiff’s request for April 17, 2015 [AR 125-151], at which Plaintiff was represented by
counsel, and the Plaintiff and a vocational expert testified. [AR 38-73] The ALJ issued a written
ruling on July 14, 2015 finding Plaintiff was not disabled starting on March 1, 2011 through June
30, 2014 because considering Plaintiff’s age, experience, and residual functional capacity, he could
successfully adjust to other work existing in significant numbers in the national economy. [AR 2032] On September 13, 2016, the SSA Appeals Council 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 1-6]. See 20 C.F.R. § 404.981. Plaintiff timely filed his complaint with this
Court seeking review of the Commissioner’s final decision.
II.

Plaintiff’s Alleged Conditions
Plaintiff was born on September 30, 1965; he was 47 years old when he filed his application

for DIB on August 9, 2013. [AR 164] Plaintiff claims he became disabled on January 1, 2010 [AR
183] and reported that he was limited in his ability to work due to “occular migraines, degenerative
disc disease, back injury, ‘ADD,’ sciatica, and migraines.” [AR 206] Plaintiff completed a
“Function Report” in tandem with his application, in which he explained that he was “unable to
complete job tasks and be a reliable employee” because he “would miss many days of work due to
2

[his] condition” and he was “not able to determine when [his] condition will limit [him] or act up.”
[AR 223] He also stated that he had difficulty sleeping due to pain; he could prepare easy meals,
do laundry and dishes, shop for groceries, and drive; physical and mental activity were difficult due
to pain; and ocular migraines made seeing difficult at times. [AR 224-230]
The record dates back to 2011, at which time Plaintiff was treated by Usama Ghazi, M.D.
for lumbar back pain. Plaintiff had reported a back injury at work from an incident in July 2005
when he was carrying a spool of wire with a partner, and the partner dropped the spool. [AR 290]
An MRI taken on June, 27 2011 revealed “an L4-5 disk protrusion which measure[d] 7 mm; . . . at
L5-S1, however, there is a 7mm right lateral disk osteophyte complex encroaching the right foramin,
contacting the S1 nerve root.” [AR 335] During 2011-2012, Dr. Ghazi performed rhizotomies on
the Plaintiff’s spine, prescribed him pain medication, and ordered physical therapy.
On February 28, 2013, Plaintiff presented to the emergency department at Longmont United
Hospital complaining of high blood pressure and increasing fatigue, lethargy, and exertional
dyspnea. [AR 366] The attending physician, Andrew Johanos, M.D., found no renal insufficiency,
brain bleed, or abnormal EKG, and encouraged Plaintiff to be admitted “for control of his blood
pressure,” but Plaintiff refused. [AR 368] Thereafter, Plaintiff began treating with Murry Drescher,
M.D. for his “benign” hypertension and with Matthew Brett, M.D. as his “primary care provider”
(PCP). On May 17, 2013, Plaintiff reported to Dr. Brett that he had “been on [Adderall] for 25
years” to treat his Attention Deficit Disorder (ADD) and dyslexia, and asked for a prescription,
which Dr. Brett granted. [AR 490-491] Plaintiff also reported his pain was under “good control”
with the medication, Avinza. [AR 479, 482, 485] However, on October 21, 2013, Plaintiff
3

complained of increased back pain to Dr. Brett and requested “another rhizotomy,” but the doctor
“adjusted” his Percocet dosage and refilled his Avinza. [AR 529-530] Plaintiff reported the same
pain complaints the following November, December, and January. [AR 544-554]
On March 10, 2014, Plaintiff presented to John Mars, M.D. for a physical consultative
examination. Plaintiff reported he developed migraines in 2007 after a head trauma; he was
diagnosed by a “specialist” with ocular migraines, which he experienced twice a month for one-totwo days each time; he avoided television and computer screens, which seemed to trigger the
migraines; he injured his back in 2005 when he lifted a large spool of wire while working as an
electrician; he was treated for back pain with medication, physical therapy, and four-to-five
rhizotomies; he was diagnosed with ADD as a child and graduated from high school; and, he was
able to dress, bathe, drive, cook simple meals, shop for groceries, and perform limited household
chores. [AR 555-556] After a thorough physical examination, Dr. Mars diagnosed Plaintiff with a
history of migraine headache, low back pain, ADD, and obesity, and found Plaintiff should avoid
ladders and scaffolds due to medications, but he could stand, walk, climb stairs, and sit without
limitations; could handle objects and use his feet for foot controls; could kneel, stoop, crawl and
crouch on occasion; and could lift and carry twenty pounds. [AR 558] An x-ray of the Plaintiff’s
lumbar spine that same day revealed “degenerative disc disease at T11-T12 and L4-L5.” [AR 568]
In the spring 2014, Dr. Brett expressed his concerns to Plaintiff regarding his weight, blood
sugar levels, and the amount of pain medication Plaintiff was taking; Dr. Brett encouraged diet and
exercise and adjusted Plaintiff’s medication. [AR 600-613] By September 2014, Plaintiff was only
on dilaudid for pain and “doing well” [AR 590]; however, in October 2014, Plaintiff had an
4

“episode” of severe back pain, and Dr. Brett placed Plaintiff on his original medication regimen.
[AR 589] In 2015, Plaintiff complained of a head injury and increased headaches [AR 688], but a
CT scan of his brain revealed “no evidence of acute intracranial abnormality.” [AR 691]
In March 2015, Dr. Brett referred Plaintiff to the Salud Family Health Center for treatment
of Plaintiff’s depression. [AR 700] Alfonso Cappa assessed Plaintiff with “bipolar NOS” and
suggested a prescription of “mood stabilizers.” [AR 695-696] Dr. Brett prescribed Depakote starting
on March 30, 2015. [AR 694]
On April 2, 2015, a Medical Consultant for the SSA, K. Terry, completed a physical residual
functional capacity assessment for Plaintiff finding that Plaintiff could occasionally lift and/or carry
twenty pounds and frequently lift and/or carry ten pounds; sit, stand, and/or walk for six hours of
an eight-hour workday; had no postural, manipulative, visual, or communicative limitations; and was
to avoid concentrated exposure to extreme cold, noise, and machine hazards. [AR 668-675]
Plaintiff presented to Stuart L. Kutz, Ph.D. on May 6, 2015 for a psychological consultative
examination at the ALJ’s request following the hearing in this case. [AR 702-710] Concerning his
mental health, Plaintiff reported that he was assessed with ADHD as a child, first prescribed
psychoactive medication in the 1980s for depression, never had any inpatient mental health
treatment, and his symptoms became worse over time since his 2005 back injury. Plaintiff stated
that he had no friends, his ex-wife helped him with cleaning, he had “become a recluse,” he lived
in a home owned by his parents, he last worked full-time in 2005 and performed some work as an
electrician for a short period in 2011 or 2012. Dr. Kutz diagnosed Plaintiff with mood disorder NOS

5

and anxiety disorder NOS, and assessed a Global Assessment of Functioning (GAF) score of 60.2
2

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
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
6

[AR 707]
III.

Hearing Testimony
At a hearing on April 17, 2015, Plaintiff (who appeared with counsel) and a vocational

expert, William Tisdale, testified. [AR 38-73] During opening remarks, Plaintiff’s counsel
expressed Plaintiff’s desire to amend the disability onset date from January 1, 2010 to March 1,
2011. [AR 40] Plaintiff testified that he had pain all day long in his lower back that radiated down
his right leg and into his foot; he could lift ten pounds, sit for an hour, stand for forty-five minutes
to an hour, and walk thirty to forty-five minutes; he never left his home without his cane; the
medication prescribed for his diabetes made him feel unwell; he did not know whether his diabetes
affected his ability to work; he was suffering migraines once a week that lasted a day, and occular
migraines every other day that lasted an hour; he slipped and fell during a recent ice storm, which
caused ringing in his ears and cognitive issues; the medications he took for back pain, diabetes, high
blood pressure, migraines, ADD, and depression caused him to feel drowsy and sleep during the
day; he lived in a mobile home owned by his parents; his ex-wife cleaned the home once a month,
but he did his own laundry and shopped for groceries; he drove “a little bit”; his ADD caused him
to become distracted and unable to finish projects; he became “short-tempered” and blunt with
people; he had no friends, but socialized some with family; he became anxious and claustrophobic
in restaurants, but not in the grocery store; he was able to stay focused for hours and, sometimes,
days; television and computer screens aggravated his migraines, so he listened to the radio; he lost
inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of
death.”
• 0: “Inadequate information.”
7

his friends due to pain; bending is the primary cause of his back pain/spasms; to alleviate the pain,
he would lie down in a “Joe Namath pose”; he also positioned his clothes dryer up and ate off of
paper plates, so he would not have to bend to fold clothes or load a dishwasher; he could sleep only
two hours at a time before the pain awakened him; and, the combination of the pain, medications,
and lack of sleep made him feel unwell all of the time. [AR 41-62]
The ALJ then turned to the vocational expert, Mr. Tisdale, who testified that an individual
with Plaintiff’s age, experience and education and the following limitations— occasionally lift and
carry twenty pounds; frequently lift and carry ten pounds; sit, stand and walk six hours in an eighthour workday; avoid concentrated exposure to extreme cold, noise, fumes, odors, dusts, gasses,
unprotected heights, and moving machinery— could not perform the Plaintiff’s past jobs but could
perform the jobs of “routing clerk,” “mail clerk,” and “cashier”; if the limitations were further
restricted to the use of a case for ambulation, the routing clerk and mail clerk would be eliminated
and the cashier would be eroded by one half. [AR 66-67] At the sedentary level, such individual
could perform the jobs of “document specialist” and “addressing clerk.” If the individual were
limited further to avoiding crawling, ladders, scaffolds and only occasionally stoop, kneel, and
crouch, he would be able to perform any of the listed jobs. [AR 67-68] If such individual were
required to nap twice a day or to be absent three days per month on a consistent basis, there would
be no work available.
The ALJ issued an unfavorable decision on July 15, 2015. [AR 17-33]
LEGAL STANDARDS
To qualify for benefits under sections 216(i) and 223 of the SSA, an individual must meet
8

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.
I.

SSA’s Five-Step Process for Determining Disability
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 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. § 423(d)(1)(A); 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. 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). 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. Id. 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). 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 him from performing work
that he has performed in the past. If the claimant is able to perform his previous work, the claimant
9

is not disabled. See 20 C.F.R. § 404.1520(e), (f). Finally, if the claimant establishes a prima facie
case of 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).
II.

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); see also Bradley v. Califano, 573 F.2d
28, 31 (10th Cir. 1978).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. . . . However, [a] decision is not based on substantial evidence if
it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence
supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (citations omitted). In
addition, reversal may be appropriate when the ALJ either applies an incorrect legal standard or fails
to demonstrate reliance on the correct legal standards. Id. (citing Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996)). But, in all cases, the Court may not re-weigh the evidence nor substitute its
10

judgment for that of the ALJ. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity since the onset
date of his disability, March 1, 2011 (Step One). [AR 23] Further, the ALJ determined that Plaintiff
had the following severe impairments: obesity, degenerative disc disease/spondylosis of the lumbar
spine with radiculopathy, migraines, varicose veins, and diabetes mellitus (Step Two). [Id.] He
found Plaintiff’s other medically determinable impairments, including chronic pain syndrome,
ADD/ADHD, hypertension, and/or a head injury were not “severe.” [AR 24-25] Next, the ALJ
found the 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 25]
The ALJ then determined that Plaintiff had the RFC “to perform light work as defined in 20
CFR 404.1567(b) with the following restrictions: lift and carry 20 pounds occasionally and 10
pounds frequently; stand and walk for about six hours in an eight-hour workday; sit for about six
hours in an eight-hour workday; avoid ladders and scaffolds; occasionally stoop, kneel, and crouch;
no crawling; and avoid concentrated exposure to extreme cold, noise, fumes/odors/dust/gases, and
hazards such as unprotected heights and moving machinery.” [AR 25]
The ALJ also found that, considering the Plaintiff’s age, education, work experience, and
residual functional capacity, Plaintiff was unable to perform his past relevant work (Step Four);
however, there were jobs in the national economy that Plaintiff could perform, such as “cashier,”
11

“routing clerk,” and “mail clerk.” [AR 31-32] As a result, the ALJ concluded that Plaintiff was not
disabled at Step Five of the sequential process and, therefore, was not under a disability as defined
by the SSA. [AR 32]
Plaintiff sought review of the ALJ’s decision by the Appeals Council on August 12, 2015.
[AR 15] On September 13, 2016, 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 1-6] Plaintiff timely filed his Complaint in this
matter on November 16, 2016.
ISSUES ON APPEAL
On appeal, Plaintiff alleges the following errors: (1) whether the ALJ erred in finding
Plaintiff’s impairment of attention deficit disorder non-severe; and (2) whether the ALJ erred in
finding Plaintiff could perform light work by failing to properly weigh the medical opinion evidence.
ANALYSIS
The Court will address each of the Plaintiff’s issues in turn.
I.

Whether the ALJ Erred at Step Two
Plaintiff argues that he established the existence of a severe attention deficit disorder (ADD)

as found by Dr. Kutz, the consultative examining physician, but the ALJ found the ADD not to be
severe and, thus, he improperly afforded the impairment no further analysis and included in the RFC
no mental limitations. Opening Br., ECF No. 15 at 9-10.
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 an impairment is medically determinable, whether
12

the 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.
“A physical or mental impairment must be established by medical evidence consisting of
signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of symptoms.” 20
C.F.R. § 404.1508. Section 404.1508 provides that a claimant’s “impairment must result from
anatomical, physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” More specifically, “symptoms” are the
claimant’s description of his/her own physical or mental impairments; “signs” are anatomical,
physiological, or psychological abnormalities that can be observed apart from symptom descriptions
and must be shown by medically acceptable clinical diagnostic techniques; and “laboratory findings”
are anatomical, physiological or psychological phenomena that can be shown by use of medically
acceptable laboratory diagnostic techniques. 20 C.F.R. § 404.1528.
An ALJ’s omission of an impairment altogether could be reversible error. “It is beyond
dispute that an ALJ is required to consider all of the claimant’s medically determinable impairments,
singly and in combination; the statute and regulations require nothing less. ... Further, the failure to
consider all of the impairments is reversible error.” Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006) (citations omitted); see also Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013) (citing

13

20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)) (“In his RFC assessment, the ALJ must consider the
combined effect of all medically determinable impairments, whether severe or not.”) (emphasis in
original).
Here, the ALJ did not omit consideration of Plaintiff’s ADD/ADHD altogether; rather, he
found that a medical record nearly devoid of mental health records prior to the date last insured,
Plaintiff’s “good response to medications for ADD/ADHD,” and the May 15, 2015 report by Dr.
Kutz demonstrated Plaintiff’s mental health was “largely normal.” [AR 24] This finding indicates
that the ALJ recognized Plaintiff’s ADD/ADHD as a medically determinable impairment.
Plaintiff argues that the ALJ erred by failing to find the ADD/ADHD “severe” and ignored
Dr. Kutz’s actual “opin[ion] that Mr. Troe’s attention, concentration, persistence, pace, task
completion, and social adaptation would be mildly to moderately impaired” . . . which “suggests that
Mr. Troe’s attention deficit disorder would have more than a minimal impact on his concentration,
persistence, pace, and social functioning in the workplace.” Op. Brief 9-10. However, “the failure
to find a particular impairment severe at step two is not reversible error when the ALJ finds that at
least one other impairment is severe.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In
this case, the ALJ found five severe impairments and proceeded with the analysis as required. Id.
(“As long as the ALJ finds one severe impairment, the ALJ may not deny benefits at step two but
must proceed to the next step.”). Therefore, the ALJ did not err at Step Two by failing to find
Plaintiff’s ADD/ADHD was “severe.”3
3

In determining the Plaintiff’s ADD/ADHD was not severe, the ALJ noted Dr. Kutz’s
Medical Source Statement of Ability to Do Work-Related Activities (Mental) [AR 708-709]
saying, “the form setting forth those [mild and moderate] limitations defines ‘moderate’ as more
14

However, Plaintiff also argues the ALJ failed to “include any mental limitations” in his RFC
assessment. Op. Brief 10. The Court construes this argument as articulating a failure on the part
of the ALJ to consider all medically determinable impairments, whether severe or not, in formulating
the RFC. See Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“. . . in assessing the
claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s medically
determinable impairments, whether severe or not severe.”) (citing 20 C.F.R. §404.1545(a)(2))
(emphasis in original). Remand is appropriate where it appears from the ALJ’s ruling that he or she
excluded non-severe medically determinable impairments from consideration as part of his or her
RFC assessment. Id.
The record indicates here that Plaintiff had been treated for ADD/ADHD since at least
September 2012 when the worker’s compensation physician, Dr. Ghazi, noted that Plaintiff “does
take Adderall intermittently from his primary care physician.” [AR 323] In May 2013, Plaintiff
initiated care by Dr. Brett and asked to be “re-started on Adderall.” [AR 496] Dr. Brett diagnosed
Plaintiff with ADHD and, after clearing the medication with Plaintiff’s cardiologist, he prescribed
Adderall for Plaintiff’s ADHD starting on May 17, 2013. [AR 491] The record indicates Dr. Brett
continued this diagnosis and prescription through March 2, 2015. [AR 688-689]
Moreover, while Dr. Kutz found no “psychosis” or “mania” in May 2015, he agreed with
Plaintiff’s diagnosis of ADHD (Attention Deficit Hyperactivity Disorder), mood disorder NOS, mild
than a slight limitation in the particular area, but the individual is still ab[l]e to function
satisfactorily, which does not suggest any significant mental limitation. Moreover, the issuance
of the opinion and the exam on which it was based occurred nearly a year after the claimant’s
date last insured of June 30, 2014, giving it limited relevance for the period on and prior to that
date.” [AR 24]
15

to moderate, and anxiety disorder NOS, mild. [AR 707] Dr. Kutz assigned Plaintiff a GAF score
of 60, which indicates “[m]oderate 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).” [Id.; see also Keyes-Zachary, 695 F.3d at 1162 n.1.]
On a SSA Medical Source Statement of Ability to Do Work-Related Activities (Mental), Dr. Kutz
noted that Plaintiff was mildly limited in the ability to make judgments on simple work-related
decisions, to understand and remember complex instructions, and to carry out complex instructions;
mildly to moderately limited in the ability to make judgments on complex work-related decisions,
to interact with supervisors and co-workers, and to respond appropriately to usual work situations
and to changes in a routine work setting; and, moderately limited in the ability to interact
appropriately with the public. [AR 708-709]
Plaintiff also testified that “[t]he ADD just distracts, distracts me. I don’t finish tasks. I start
stuff and can’t seem to get them done. Medicine seems to help a little. . . . I was an electrician most
of my life so I’d have like a normal routine, how I do stuff, but then I’d see something out of the
corner of my eye and stop what I was doing to go do something else and then forget about . . . the
task I originally had because I saw something out of the corner of my eye.” [AR 50]
Despite this record, the ALJ mentioned no mental impairments, including ADD/ADHD, in
his analysis subsequent to Step Two. Without mention of Plaintiff’s ADHD at later steps in the
decision, the Court cannot discern whether the ALJ considered them singly and/or in combination
with the other impairments to determine whether Plaintiff was disabled during the relevant time
period. See Walker v. Colvin, No. 12-cv-235-EJF, 2014 WL 794261, at *7-*8, *12 (D. Utah. Feb.
16

27, 2014) (remanding matter for ALJ’s failure to determine the plaintiff’s migraines were medically
determinable at step 2 and failure to consider them in subsequent steps). The RFC itself appears to
include limitations only for the Plaintiff’s physical impairments [AR 25]; but, without any indication
from the ALJ as to whether he considered Plaintiff’s ADHD, the Court cannot determine whether
the RFC takes such impairment into account. Therefore, the Court must conclude such omission is
reversible error under prevailing law. See Wells, 727 F.3d at1069 (“In his RFC assessment, the ALJ
must consider the combined effect of all medically determinable impairments, whether severe or
not.”) (emphasis in original).
Because there is no indication the ALJ considered the Plaintiff’s ADHD at stages of his
analysis subsequent to Step 2, particularly in formulating the RFC and determining whether the
Plaintiff could perform the jobs of “routing clerk,” “mail clerk,” and “cashier” (including seeking
testimony from the experts), the Court will reverse the ALJ’s decision on this issue and remand to
the Commissioner for further consideration. See Sissom v. Colvin, 512 F. App’x 762, 769 (10th Cir.
2013) (citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir.1988) and Howard v. Barnhart, 379
F.3d 945, 947 (10th Cir. 2004)) (cautioning the ALJ on remand to “make adequate findings” to
assure that the correct legal standards are invoked and to ensure a meaningful appellate review).
II.

Whether the ALJ Properly Weighed the Opinion Evidence
Plaintiff first asserts that the ALJ erred in failing to consider Peter de Jong, a physical

therapist, as a treating physician. The Court disagrees.
“An ALJ must evaluate every medical opinion in the record, although the weight given each
opinion will vary according to the relationship between the disability claimant and the medical
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professional.” Hamlin, 365 F.3d at 1215 (citing 20 C.F.R. § 401.1527(d)). The ALJ must “give
consideration to all the medical opinions in the record” and “discuss the weight he assigns to them.”
Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) (internal quotation marks omitted). The
applicable regulations governing the SSA’s consideration of medical opinions distinguish among
“treating” physicians, “examining” physicians, and “nonexamining” (or “consulting”) physicians.
See 20 C.F.R. § 416.927(c).
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. If the opinion
is not supported by medically acceptable evidence, then the inquiry at this stage is complete.
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Watkins, 350 F.3d at 1300. However, 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 .” Id. If not,
the opinion is not entitled to controlling weight. Id. In contrast, if the medical opinion of a treating
physician is well supported by medically acceptable evidence and is not inconsistent with the other
substantial evidence in the record, an ALJ must give it controlling weight. Sedlak v. Colvin, No. 11cv-01247-PAB, 2014 WL 717914, at *10 (D. Colo. Feb. 24, 2014) (citing 20 C.F.R. §
416.927(c)(2)).
Here, Plaintiff contends the ALJ should have considered Mr. de Jong as a treating physician.
However, Plaintiff cites no binding case law, and the Court has found none, finding that a nonphysician can be considered a “treating source” under the treating physician rule. Thus, the Court
finds the ALJ did not err in this regard.
Plaintiff also argues that the ALJ “should have adopted” Mr. de Jong’s opinion, because Mr.
de Jong is a “specialist” in his field, the testing he performed on the Plaintiff was “typical” for
determining a patient’s functional abilities, and the opinion is consistent with the medical evidence.
Op. Brief, 12.
If the opinion of a treating physician does not merit controlling weight or if there is no
opinion by a treating physician, the ALJ must move to step two and consider the following factors
in determining how to evaluate other medical opinions in the record: length of the treating
relationship, frequency of examination, nature and extent of the treating relationship, evidentiary
support, consistency with the record, medical specialization, and other relevant considerations. Id.
“An ALJ may dismiss or discount an opinion from a medical source only if his decision to do so is
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‘based on an evaluation of all of the factors set out in the cited regulations’ and if he provides
‘specific, legitimate reasons’ for [the] rejection.” Id. (quoting Chapo v. Astrue, 682 F.3d 1285, 1291
(10th Cir. 2012)).
It is error for an ALJ not to adequately state and explain what weight he gives to medical
opinions. See Langley, 373 F.3d at 1119. The ALJ must give “good reasons” for the weight he
ultimately assigns each medical opinion. Watkins, 350 F.3d at 1301. The ALJ’s decision must be
sufficiently specific to make clear to any subsequent reviewer the weight given to the medical
opinion, and the reason for that weight. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007). Even though an ALJ is not required to discuss every piece of evidence, it must be clear that
the ALJ considered all of the evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
“[I]n addition to discussing the evidence supporting his decision, the ALJ also must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he
rejects.” Id. at 1010. Boilerplate language, unconnected to any evidence in the record, will not
suffice to support an ALJ’s conclusion. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
An ALJ may reasonably give less weight to a medical opinion that differs from that same doctor’s
notes. See Newbold v. Colvin, 718 F.3d 1257, 1266 (10th Cir. 2013).
Here, the ALJ stated the following concerning Mr. de Jong’s evaluation:
Based on a September 2011 functional capacity evaluation, the claimant was
recommended for light work activities with no frequent lifting, carrying, pushing, or
pulling, performance of upper extremity tasks with an equal work/rest ratio, sitting
for "less than the usual requirement" of six hours in an eight-hour workday, changes
in posture every 45 minutes, and no climbing (Id. at 16; see ex. l F). However, the
limitations were based, in part, on the claimant’s self-report (see ex. 3F at 17). Later
that month, his treating physician, Usama Ghazi, D.O, gave the claimant work
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restrictions of lifting up to 20 pounds, frequently lifting 10 pounds, bending,
stooping, and climbing for one hour a day each, and no crawling (Id.). At a
November 201l physical therapy intake evaluation, the claimant described having
pain at level "3" or "4" out of 10 and being able to sit for one hour at a time, stand
for two hours at a time, and walk three-quarters of a mile at a time (ex. 2F at 3),
which indicates greater capacity than did his self-reports that resulted in the
functional capacity evaluation recommendations.
***
The undersigned finds much less persuasive the recommendation, based on a
September 2011 functional capacity evaluation, that the claimant be limited to light
work activities with no frequent lifting, carrying, pushing, or pulling, performance
of upper extremity tasks with an equal work/rest ratio, sitting for "less than the usual
requirement" of six hours in an eight-hour workday, changes in posture every 45
minutes, and no climbing ([s]ee ex. 3F at 16; see ex. l F). The undersigned accords
this recommendation little weight because it is not from an “acceptable medical
source” (see 20 CFR 404.1513(a)), it was based, in part, on the claimant’s own
self-report (see ex. 3F at 17), it was inconsistent with his report just a couple of
months later of having greater capacity than he described at the functional capacity
evaluation (see ex. 2F at 3), it is inconsistent with the work restrictions issued by his
treating physician, Dr. Ghazi, after his review of the functional capacity evaluation
report (see ex. 3F at 17), and it is inconsistent with the persuasive opinions of an
examining physician, Dr. Mars (see ex. 8F), and a Social Security medical consultant
([s]ee ex. 14F).
[AR 27, 29-30] The Court finds that the ALJ’s findings concerning Mr. de Jong’s opinion to be
thorough and supported by the applicable law. Plaintiff’s unsupported contention that “Mr. de
Jong’s opinion was the only opinion that was not inconsistent with the medical records” is not
persuasive; Plaintiff provides an example that, “[a]s recently as December 2013, [Plaintiff’s] treating
physician recommended surgery to treat [Plaintiff’s] degenerative disc disease. R. 548.” Reply 4.
However, the record dated December 18, 2013 and authored by Dr. Brett actually states, “p[atien]t
is needing referral to get repeat evaluation from back surgeon and can’t afford it. Will get into
physical therapy to see if helpful.” [AR 548] Other than this reference to an evaluation by a “back
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surgeon,” there is no mention of “surgery” in this record nor that Dr. Brett “recommended surgery
to treat” the Plaintiff. Id.
Finally, the Plaintiff argues that the ALJ erred by according more weight to the opinions of
the consulting and reviewing physicians than to the treating physician’s opinion concerning
Plaintiff’s postural limitations (stoop, kneel, crouch, and crawl).
The ALJ found the following regarding the three physicians’ opinions:
Several opinions of the claimant’s functioning have been issued in this case. Based
on the March 2014 consultative exam, the examining physician, John Mars, M.D.
opined that the claimant could lift and carry up to 20 pounds, should avoid ladders
and scaffolds, and could occasionally stoop, kneel, crouch, and crawl, but otherwise
had no significant physical limitations (See ex. 8F at 4). Subsequently, a Social
Security medical consultant similarly opined that during the period through his date
last insured of June 30, 2014, the claimant was capable of light work activities with
no concentrated exposure to extreme cold, noise, fumes/odors/dusts/gases, or hazards
(See ex. 14F). The undersigned finds these opinions persuasive and accords them
substantial weight because they are supported by the detailed and largely normal
consultative exam findings, which are generally consistent with those documented
in the treatment records during the period relevant to this decision, they are
otherwise consistent with the medical evidence documenting numerous reports of
good pain control and only a few indications of use of a cane, they are both based,
at least in part, on review of some of the medical evidence of record, they are largely
consistent with each other, and they are supported by the September 2011 work
restrictions issued by a treating physician, Dr. Ghazi, indicating that the claimant
could lift up to 20 pounds maximum, frequently lift 10 pounds, bend/stoop and climb
for one hour a day each, and do no crawling (See ex. 3F at 17). However, the
undersigned does not accord Dr. Ghazi’s work restrictions controlling weight and
gives them slightly less weight than the opinions of Dr. Mars and the Social Security
medical consultant because they are not fully consistent with the objective medical
findings, which were largely normal during the period relevant to this decision and
support the existence of somewhat greater capacity for bending/stooping and
climbing.
[AR 30]
The ALJ refers to a medical record dated September 23, 2011, by Dr. Ghazi, the worker’s
22

compensation doctor treating Plaintiff at that time, who imposed the following work restrictions: “I
will modify the patient’s work restrictions to light or sedentary category of work. His maximum lift
is now 20 pounds based on the valid FCE that was completed. I will allow a frequent l[i]ft of 10
pounds, which I think is both reasonable and appropriate. I will also limit bending and stooping to
1 hour per day and no crawling. The patient may climb for 1 hour per day total.” [AR 334] Similarly,
the ALJ found Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, and
he was limited to no crawling. [AR 25] Apparently, the Plaintiff challenges the “difference” between
Dr. Ghazi’s limitations of bending, climbing, and stooping to one hour per day and the ALJ’s
limitations of “occasionally” stooping, kneeling, and crouching, and no climbing ladders or
scaffolds. However, the Court finds no significant difference between the two.
First, within the Social Security disability context, “occasionally” means “from little to up
to one third of the day, generally totaling less than two hours in an eight hour work day.” See Social
Security Ruling 96-6p, 1996 WL 374185, at *3 (SSA 1996). The Honorable Robert E. Blackburn
from this District has determined that a requirement to crouch and stoop no more than one hour per
day is consistent with a limitation on those activities to “occasionally.” Rosado v. Astrue, No. 07cv-01758-REB, 2008 WL 2999300, at *4 (D. Colo. Aug. 1, 2008). The Court agrees.
Second, the ALJ properly notes that he declines to accord Dr. Ghazi’s opinion controlling
weight and his reasons for doing so and for according the opinion “slightly less” than substantial
weight are supported by the record. The Plaintiff does not convince the Court otherwise.
Therefore, the Court finds the ALJ did not err in finding Plaintiff “could perform light work”
based on his legally supported analysis of the medical evidence in this case.
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CONCLUSION
In sum, the Court concludes that, while the ALJ did not fail to properly weigh the medical
opinions concerning Plaintiff’s physical impairments, he failed to consider Plaintiff’s medically
determinable mental impairment of ADD/ADHD in his analysis subsequent to Step Two and, thus,
the Court cannot discern whether the ALJ properly formulated the RFC in this case. Accordingly,
the decision of the ALJ that Plaintiff Mark Ronald Troe was not disabled since March 1, 2011 is
AFFIRMED IN PART as to Plaintiff’s physical impairments, REVERSED IN PART as to Plaintiff’s
mental impairments, AND REMANDED to the Commissioner for further consideration in
accordance with this order.
Dated at Denver, Colorado this 30th day of May, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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