Terrell v. Colvin

Filing 19

ORDER that the decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter is REMANDED for further proceedings, by Magistrate Judge Scott T. Varholak on 3/16/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02907- STV
YVONNE MARIE TERRELL,
Plaintiff,
v.
NANCY A. BERRYHILL, 1 Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff Yvonne Marie Terrell’s Complaint
seeking review of the Commissioner of Social Security’s decision denying Plaintiff’s
application for disability insurance benefits (“DIB”) under Title II of the Social Security
Act (“SSA”), 42 U.S.C. § 401 et seq., and supplemental security income benefits (“SSI”)
under Title XVI of the SSA, 42 U.S.C. § 1381 et seq. [#1] The parties have both
consented to proceed before this Court for all proceedings, including the entry of final
judgment, pursuant to 28 U.S.C. 636(c) and D.C.COLO.LCivR 72.2. [#13] The Court
has jurisdiction to review the Commissioner’s final decision pursuant to 42 U.S.C. §§

1

Carolyn W. Colvin is the named Defendant in the Complaint as she was the
Commissioner of Social Security at the time the Complaint was filed. [#1] Nancy A.
Berryhill currently serves as the Acting Commissioner of Social Security. [#16 at 1 n.1]
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill, as Commissioner
Colvin’s successor, “is automatically substituted as a party.” See also 42 U.S.C. §
405(g) (“Any action instituted in accordance with this subsection shall survive
notwithstanding any change in the person occupying the office of Commissioner of
Social Security or any vacancy in such office.”)

405(g) and 1383(c)(3). This Court has carefully considered the Complaint [#1], the
Social Security Administrative Record [#11], the parties’ briefing [#15, 16], and the
applicable case law, and has determined that oral argument would not materially assist
in the disposition of this appeal. For the following reasons, the Court REVERSES the
Commissioner’s decision and REMANDS this matter for further proceedings.
I.

LEGAL STANDARD
A.

Five-Step Process for Determining Disability

The Social Security Act defines disability 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.” 2 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This
twelve-month duration requirement applies to the claimant’s inability to engage in any
substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at
1084.

“In determining whether an individual’s physical or mental impairment or

impairments are of a sufficient medical severity that such impairment or impairments
could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined
effect of all of the individual’s impairments without regard to whether any such
impairment, if considered separately, would be of such severity.”

42 U.S.C. §§

423(d)(2)(B), 1382c(a)(3)(G).

2

“Substantial gainful activity” is defined in the regulations as “work that (a) [i]nvolves
doing significant and productive physical or mental duties; and (b) [i]s done (or
intended) for pay or profit.” 20 C.F.R. §§ 404.1510, 416.910; see also 20 C.F.R. §§
404.1572, 416.972.
2

“The Commissioner is required to follow a five-step sequential evaluation process
to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171
(10th Cir. 2005). The five-step inquiry is as follows:
1. The Commissioner first determines whether the claimant’s work activity, if
any, constitutes substantial gainful activity;
2. If not, the Commissioner then considers the medical severity of the claimant’s
mental and physical impairments to determine whether any impairment or
combination of impairments is “severe;” 3
3. If so, the Commissioner then must consider whether any of the severe
impairment(s) meet or exceed a listed impairment in the appendix of the
regulations;
4. If not, the Commissioner next must determine whether the claimant’s residual
functional capacity (“RFC”)—i.e., the functional capacity the claimant retains
despite her impairments—is sufficient to allow the claimant to perform her
past relevant work, if any; 4
5. If not, the Commissioner finally must determine whether the claimant’s RFC,
age, education and work experience are sufficient to permit the claimant to
perform other work in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F. Supp. 3d 782, 784 (D. Colo. 2017).
The claimant bears the burden of establishing a prima facie case of disability at steps
one through four, after which the burden shifts to the Commissioner at step five to show
that claimant retains the ability to perform work in the national economy.

Wells v.

Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
3

The regulations define severe impairment as “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
4
Past relevant work is defined as “work that [the claimant] ha[s] done within the past 15
years, that was substantial gainful activity, and that lasted long enough for [the claimant]
to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1); 416.960(b)(1); see also 20 C.F.R. §§
404.1565(a); 416.965(a).
3

and terminates the analysis.” Ryan v. Colvin, 214 F. Supp. 3d 1015, 1018 (D. Colo.
2016) (citing Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
1991)).
B.

Standard of Review

In reviewing the Commissioner’s decision, the Court’s review is limited to a
determination of “whether the Commissioner applied the correct legal standards and
whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill,
849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th
Cir. 1994)).

“With regard to the law, reversal may be appropriate when [the

Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance
on the correct legal standards.”

Bailey, 250 F. Supp. 3d at 784 (citing Winfrey v.

Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla, but less
than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting
Lax, 489 F.3d at 1084).

“Evidence is not substantial if it is overwhelmed by other

evidence in the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62
(quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must
“meticulously examine the record as a whole, including anything that may undercut or
detract from the [Commissioner’s] findings in order to determine if the substantiality test
has been met.’” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation
omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment
for the Commissioner’s.” Hackett, 395 F.3d at 1172.

4

II.

BACKGROUND
Plaintiff was born in February 1963.

[AR 142, 145] 5

Plaintiff speaks and

understands English and received her General Equivalency Degree (“GED”). [AR 31,
168; see generally AR 30-48]

On October 28, 2013, Plaintiff protectively filed an

application for DIB and, on December 24, 2013, Plaintiff protectively filed an application
for SSI. [AR 142-50] In both applications, Plaintiff claimed a disability onset date of
September 14, 2013, and thus Plaintiff was 50 years old at the time of the alleged
onset.

[AR 142, 145]

Plaintiff claims disability based upon physical and mental

impairments resulting from strokes Plaintiff suffered in September 2013. [AR 19, 29-30;
#15 at 4-7] Plaintiff had previously worked as a medical clerk, but has not performed
that or any other work since September 2013. [AR 31-35, 175]
A.

Medical Background

In 2009, Plaintiff was hospitalized for hemorrhagic stroke.

[AR 391]

A

conventional catheter arteriography on September 18, 2009 revealed a saccular
aneurysm of the right internal carotid artery. [Id.] Plaintiff elected to have endovascular
treatment—i.e., coiling. [Id.]
In February 2013, Plaintiff was taken to the hospital by ambulance with a severe
headache and was diagnosed with a subarachnoid hemorrhage due to a ruptured
aneurism.

[AR 217-18, 224]

Plaintiff underwent interventional radiology and had

cerebral angiogram with coiling of an ACOM aneurysm as well as a right ICA/superior
hypophyseal aneurysm. [AR 222] Plaintiff spent two weeks in intensive care. [Id.]
Plaintiff was then transferred to the neuro medical floor, which noted that Plaintiff has “a
5

All references to “AR” refer to the sequentially numbered Social Security
Administrative Record filed in this case. [#11]
5

longstanding history of poorly controlled hypertension.” [Id.] Plaintiff was discharged
and was able to return to work. [AR 459]
On or about September 19, 2013, Plaintiff was readmitted to the hospital for
placement of a flow-diverting stent into the right ICA aneurysm; there were several
unsuccessful attempts to place the stent. [AR 273] On September 20, 2013, Plaintiff
was noted to have unexpected left hemiparesis. [Id.] An MRI of her brain showed
multiple right middle cerebral artery borderzone strokes involving the basal ganglia, right
occipital, right cerebellar, and right pons. [AR 272-73] Plaintiff also was noted to have
malignant hypertension that was difficult to control. [AR 273] Plaintiff was admitted to
the ICU for observation and was determined to have left hemiparesis, dysphagia,
cognitive deficit, and abulia. [Id.] Medical personnel determined that Plaintiff “would
require [an] interdisciplinary rehabilitation program prior to her being able to return
home” and she was admitted for rehabilitation. [Id.]
Plaintiff remained in the in-patient rehabilitation program for over a month—until
approximately November 8, 2013.

[AR 272-75]

At the time of admission to the

rehabilitation program, Plaintiff required moderate assistance for transfers from sitting to
standing, maximum assistance for eating and grooming and for upper and lower
extremity dressings, and was dependent on assistance for bathing and toileting. [AR
275]

Plaintiff also had significant neurocognitive deficits, requiring moderate to

maximum cues to correctly answer questions and verbal cues to initiate responses. [AR
458, 460] Plaintiff required a longer processing time and had 57% accuracy in her
answers to problem-solving tasks.

[AR 460]

At admission, Plaintiff had mild-to-

moderate deficits in auditory comprehension, moderate written language and memory

6

deficits, moderate-to-severe pragmatic deficits, and severe reading comprehension,
organization, problem-solving, reasoning and attentional deficits. [AR 274]
At the time of discharge from rehabilitation, Plaintiff was independent in eating,
grooming, upper and lower extremity dressings and had modified independence in
bathing and toileting. [AR 275] Plaintiff’s motor speech was normal, but she continued
to have mild pragmatic, written language, auditory and reading comprehension deficits,
mild-to-moderate memory and attentional deficits, and moderate organizational,
problem-solving, and reasoning deficits. [AR 274] Plaintiff required 24-hour supervision
at home, including supervision for medications, and was not permitted to return to
driving. [AR 275] Plaintiff was instructed to continue physical therapy, occupational
therapy, and speech therapy. [Id.]
On October 18, 2013, Plaintiff had a follow-up appointment to address recurrent
nausea, anorexia, and weight loss. [AR 469] Plaintiff reported that she was not eating
simply because she was not hungry.

[Id.]

The doctor noted that Plaintiff was

“[d]epressed-appearing.” [Id. at 470]
On December 9, 2013, Plaintiff had an initial evaluation following her release
from rehabilitation. [AR 404-05] Plaintiff reported an aggressive rehabilitation regimen,
including physical therapy several times a week at her home. [AR 404] Plaintiff noted
significant improvement in her strength though she was not yet back to her baseline.
[Id.] Plaintiff’s hypertension was identified, but the report notes that Plaintiff was not
currently experiencing any symptoms. [Id.] The report further notes that Plaintiff had
become significantly depressed during her hospital stay and was started on Celexa.
[Id.] Plaintiff reported that her mood had improved from where it was several months

7

ago and the doctor described her depression as “well controlled” on the medication.
[AR 404-05] The doctor noted that it remained to be seen what Plaintiff’s full recovery
would be but that he suspected it would be “quite a bit less than her baseline.” [AR 405]
On January 6, 2014, Plaintiff saw a doctor and reported persistent weakness on
her left side with instances of falling over the course of the prior two weeks. [AR 402]
Plaintiff noted that her physical therapy had ended several weeks ago and that she felt
like she had actually been doing worse. [Id.] Plaintiff also reported that she had fallen
in the bathtub recently, though the report notes that she did not have adaptive devises
in her bathtub. [Id.] The doctor concluded that the falling likely was a consequence of
Plaintiff’s left-sided weakness; though her strength was normal, the doctor suspected it
related more to coordination issues. [Id.] Plaintiff’s sister told the doctor that she was
concerned that Plaintiff was not continuing to improve, but Plaintiff stated that she did
not feel like she was doing that bad and did not believe she needed further therapy.
[Id.]

Plaintiff also reported a poor appetite and the report references continued

hypertension. [Id.] The report from a February 6, 2014 follow-up visit indicates that
Plaintiff had normal strength but that she continued to experience fatigue and a loss of
appetite. [AR 401]
On or about July 16, 2014, Plaintiff was readmitted for a cerebral angiogram and
stent/coil retreatment of her anterior communicating artery aneurysm. [AR 437, 439,
446, 449] It was noted that Plaintiff had a history of neurocognitive deficits as a result of
her condition and, upon examination, Plaintiff was found to have left upper and lower
extremity weakness from the prior MCA stroke and a medially deviated left eye. [AR
439-40, 444] Plaintiff reported that she had started to ambulate with a walker, but she

8

still was unable to walk with a cane. [AR 442] On or about January 15, 2015, a followup diagnostic cerebral angiogram was administered. [AR 430, 433-34] The doctor’s
notes from her visit indicated that Plaintiff continued to experience minimal left-sided
weakness. 6 [AR 429]
On the Function Report form, which Plaintiff completed on December 17, 2013,
Plaintiff reported that her condition limited her ability to work because her balance was
off, she was very tired and weak all the time, and she needed to use a walker to walk.
[AR 183, 190] Plaintiff stated that she was able to address her personal hygiene needs,
but that it took her longer to do because of fatigue. [AR 184] Plaintiff stated that she is
unable to use the stove to prepare meals, because she would forget to turn it off. [AR
185] Plaintiff stated that her sister and niece do all the chores around the house due to
Plaintiff’s balance issues and weakness. [Id.] Plaintiff reported that her ability to handle
money was not as good as it used to be and that she has to do it slowly because of her
memory deficits. [AR 186-87] Plaintiff stated that she was only able to pay attention for
30-minute intervals of time. [AR 188] She reported that she was “ok” with written
instructions but could only follow short spoken instructions. [Id.]
At the July 20, 2015 hearing, Plaintiff testified that she continues to use a walker
whenever she leaves her house, that she is unable to cook meals other than warming
things up in the microwave, and that she is unable to do her own laundry. [AR 36-37]
Plaintiff stated that she has deficiency with her concentration and memory and provided
a recent example of forgetting that she had filled out a form requested by her attorney.
6

At the July 20, 2015 hearing, Plaintiff testified that she had an additional coiling
procedure in April 2015. [AR 30, 38-39] The last appointment reflected in the medical
records submitted by Plaintiff’s counsel following the hearing, however, was on January
15, 2015. [AR 423]
9

[AR 37] Plaintiff testified that she was able to do some reading and to pay attention and
focus on the television shows she watched and remember them the following day. [AR
37-38] Although Plaintiff has not gone to the movies since her strokes, she testified that
she did not think she would have a difficult time sitting through a two-hour movie
because she watches television at home. [AR 44] Plaintiff testified that she has not
had cognitive therapy to help with her memory loss, but that she has tried memory
games recommended by her doctor, which she finds difficult. [AR 38] Plaintiff testified
that she has not driven since her strokes, because she does not feel safe to drive
because she doesn’t “see much on the left” side. [AR 42-43] Plaintiff testified that she
had walked about ten minutes that morning to get to the hearing and felt that was about
her maximum limit. [AR 44] Plaintiff stated that she had no difficulty with sitting, but
that she could probably only stand for approximately ten minutes before she would need
to sit and that she cannot lift things due to her balance issues. [AR 44-45] Plaintiff
testified that she does not have any trouble with hand functioning and has gotten better
at filling her pill box without assistance. [AR 46] Plaintiff testified that she had good
days and bad days, with about six bad days per month where she is extra tired and
experiences nausea. [AR 46-48] Plaintiff stated that she still has left-side weakness
but that she is no longer falling. [AR 47-48]
B.

Procedural History

Plaintiff’s applications for DIB and SSI were initially denied on April 23, 2014.
[AR 64, 74] On June 5, 2014, Plaintiff completed a request for a hearing before an ALJ.
[AR 91-92] A hearing was conducted before ALJ Rebecca LaRiccia on July 20, 2015,
at which Plaintiff and vocational expert Alissa Smith both testified. [AR 15, 28] Plaintiff

10

was represented at the hearing by an attorney, Andrea Corvin-Wien. [Id.] On August
20, 2015, the ALJ issued a decision denying Plaintiff benefits. [AR 15-21] Plaintiff
timely requested a review of that decision by the Appeals Council and requested an
extension of time to present a brief in support of review along with any updated medical
information. [AR 8-9] The Appeals Council granted Plaintiff an extension of time to
submit a brief and/or additional evidence. [AR 6-7] On October 1, 2015 Plaintiff’s
counsel submitted a brief in support of her request for review [AR 214] and, on March
31, 2016, Plaintiff’s counsel submitted an additional Medical Opinion Questionnaire
regarding Plaintiff’s Physical Activities and Medical Opinion Questionnaire regarding
Plaintiff’s Mental Impairments [AR 585-592]. The Appeals Council issued an Order
confirming its receipt of the additional evidence and making it part of the record. [AR 5]
On October 6, 2016, the Appeals Council denied Plaintiff’s request for review. [AR 1-4]
Plaintiff timely filed an appeal with this Court on November 29, 2016. [#1] Because the
Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the final
decision of the Commissioner for purposes of this appeal. See 20 C.F.R. §§ 404.981,
416.1481, 422.210.
C.

The ALJ’s Decision

The ALJ denied Plaintiff’s applications for DIB and SSI after evaluating the
evidence pursuant to the five-step sequential evaluation process. [AR 15-21] At step
one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since September 14, 2013, the alleged onset date. [AR 17] At step two, the ALJ found
that Plaintiff had the following severe impairments:

status-post subarachnoid

hemorrhage and ruptured communicating aneurysm and malignant hypertension. [AR

11

17-18] At step three, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments that meets or medically exceeds the severity of one of the
listed impairments in the appendix of the regulations. [AR 18] Following step three, the
ALJ determined that Plaintiff retained the RFC to perform sedentary work, except “she
can no more than occasionally climb ramps and stairs and never climb ladders, ropes,
or scaffolds” and “can occasionally kneel, crouch, and crawl and should avoid hazards
such as unprotected heights and dangerous moving machinery.” [AR 18] The ALJ
provided a narrative setting forth the evidence considered in determining the RFC and
explaining the weight given to the medical opinions in the record. [AR 18-20]
At step four, the ALJ found that Plaintiff had past relevant work experience as a
medical clerk (Dictionary of Occupational Titles (“DOT”) #205.362-018), which is
considered sedentary, semiskilled work.

[AR 20-21]

The ALJ concluded that “the

exertional demands of [Plaintiff’s] past work [as actually performed by her] are
precluded by her residual functional capacity.”

[AR 21]

The ALJ went on to find,

however, that, in comparing Plaintiff’s RFC with the physical and mental demands of the
medical clerk position, Plaintiff could perform the work as generally performed according
to the DOT. 7 [AR 21] Accordingly, the ALJ determined that Plaintiff was not under a
disability from September 14, 2013 (the alleged onset date) through August 20, 2015
(the date of the ALJ’s decision). [AR 21]

7

At step four, a claimant will be determined to be “not disabled” when it is determined
that the claimant retains the RFC to perform either (1) the actual functional demands
and job duties of a particular past relevant job as performed by the claimant; or (2) the
functional demands and job duties of that job as generally required by employers
throughout the national economy. See Social Security Ruling 82-61, 1982 WL 31387
(1982); Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1051 (10th Cir.
1993).
12

III.

ANALYSIS
On appeal, Plaintiff argues that the ALJ’s treatment of opinions provided by

Plaintiff’s treating medical provider was contrary to law and not supported by substantial
evidence. [#15 at 3-18] The record considered by the ALJ included a Medical Opinion
Re: Ability to Do Physical Activities and a Medical Opinion Questionnaire (Mental
Impairments), both completed on September 18, 2014 by Hong-Nhi Nguyen [AR415-17,
420-22], a physician assistant who served as Plaintiff’s primary care provider at the time
of the July 20, 2015 hearing [AR 39]. 8
“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 professional.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th
Cir. 2004) (internal citation omitted). The regulations governing the Commissioner’s
consideration of medical opinions distinguish among “treating” physicians, “examining”
physicians, and “nonexamining” (or “consulting”) physicians. Boyd v. Berryhill, No. 17CV-00722-MEH, 2017 WL 4877213, at *11 (D. Colo. Oct. 30, 2017); see also 20 C.F.R.
§§ 404.1527(c), 416.927(c).

“The opinion of an examining physician is generally

entitled to less weight than that of a treating physician, and the opinion of an agency

8

The transcript of the hearing identifies Plaintiff’s “primary care doctor” at the time of the
hearing as “Wynn [phonetic].” [AR 39] Plaintiff testified that she saw “Dr. Wynn” at
Colorado Internal Medicine Specialists. [AR 39-40] Ms. Nguyen, the physician
assistant who submitted the opinions, worked at Colorado Internal Medicine Specialists
at the time the opinions were submitted. [AR 417, 419, 422] Although the
Commissioner’s brief initially contends that “[t]here is no evidence [Ms.] Nguyen ever
examined or treated Plaintiff” [#16 at 5], the brief subsequently concedes that Plaintiff’s
reference to “Dr. Wynn” at the hearing presumably was a reference to Ms. Nguyen [id.
at 10 n.7]. The Court agrees and concludes that Ms. Nguyen is the same medical
provider referred to as “Dr. Wynn” in the transcript of the hearing.
13

physician who has never seen the claimant is entitled to the least weight of all.”
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
Plaintiff repeatedly refers to the opinions offered by Ms. Nguyen as “medical
opinions” and suggests that the ALJ should have given Ms. Nguyen’s opinions the
deference required of medical opinions offered by a treating source. [See, e.g., #15 at
10-18]

As Plaintiff acknowledges, however, because Ms. Nguyen is a physician

assistant and not a licensed physician, she “is not considered to be an ‘acceptable
medical source’” according to the regulations in place at the time the ALJ rendered her
decision. 9 [#15 at 15 n.1; see 20 C.F.R. §§ 404.1513(a), 416.913(a) (2015)] As such,
Ms. Nguyen does not qualify as a “treating source” and her opinions are not considered
“medical opinions.” 10

Ms. Nguyen’s opinions thus were not entitled to the special

deference given to treating source opinions. See Mounts v. Astrue, 479 F. App’x 860,
865 n.1 (10th Cir. 2012).
The regulations do, however, expressly recognize physician assistants as other
medical sources whose opinions may be used “to show the severity of [the claimant’s]
impairment(s) and how it affects [the claimant’s] ability to work.”

20 C.F.R. §§

404.1513(d), 416.913(d) (2015). “Since there is a requirement to consider all relevant
evidence in an individual’s case record, the case record should reflect the consideration
9

In evaluating the Commissioner’s decision, the Court “refer[s] to and appl[ies] the
versions of [the] regulations ‘in effect at the time of the ALJ’s decision.’“ Newbold v.
Colvin, 718 F.3d 1257, 1261 n.2 (10th Cir. 2013) (quoting Chapo v. Astrue, 682 F.3d
1285, 1291 n.5 (10th Cir.2012))
10
The regulations define “medical opinions” as “statements from acceptable medical
sources that reflect judgments about the nature and severity of [the claimant’s]
impairment(s).” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Similarly, a “treating
source” is defined as the claimant’s “own acceptable medical source who provides [ ] or
has provided [the claimant] with medical treatment or evaluation . . . .” 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2).
14

of opinions from medical sources who are not ‘acceptable medical sources.’” Social
Security Ruling 06-03P, 2006 WL 2329939, at *6 (Aug. 9, 2006).

Indeed, in an

appropriate case, “an opinion from a medical source who is not an acceptable medical
source . . . may outweigh the medical opinion of an acceptable medical source,
including the medical opinion of a treating source.”

20 C.F.R. §§ 404.1527(f)(1),

416.927(f)(1). The Commissioner thus “generally should explain the weight given to
opinions from these 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, when such opinions may have an effect on the outcome of the
case.” 20 C.F.R. §§ 404.1527(f)(2), 416.927(f)(2). Thus, even though Ms. Nguyen’s
opinions were not “medical opinions,” the Commissioner “was still required to explain
the amount of weight [s]he gave to the opinions [Ms. Nguyen] expressed.” KeyesZachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012).
When deciding what weight to give a medical source opinion—regardless of
whether or not the source is an acceptable medical source—the ALJ must consider the
factors provided in 20 C.F.R. § 404.1527 and 416.927. See Frantz v. Astrue, 509 F.3d
1299, 1301-02 (10th Cir. 2007); Lauxman v. Astrue, 321 F. App’x 766, 769 (10th Cir.
2009); Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003). Those factors include: (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 source’s opinion is
supported by relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the source is a specialist in the area upon which an opinion

15

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); 20 C.F.R. § 416.927(c). While the ALJ
must consider each of these factors, the ALJ need not explicitly discuss each of the
factors in determining what weight to give an opinion. Mounts, 479 F. App’x at 866
(citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)).

The ALJ must,

however, “provide[ ] ‘good reasons in his decision for the weight he gave to the . . .
opinion.’” Id. (quoting Oldham, 509 F.3d at 1258). “What matters is that the decision is
‘sufficiently specific to make clear to any subsequent reviewer[ ] the weight the
adjudicator gave to the . . . opinion and the reasons for that weight.’” Id. (quoting
Oldham, 509 F.3d at 1258).
With this framework in mind, the Court considers the ALJ’s treatment of Ms.
Nguyen’s opinions regarding Plaintiff’s physical abilities and mental limitations.
A. Opinion Regarding Plaintiff’s Physical Activities
With regard to Plaintiff’s physical capabilities, Ms. Nguyen opined that Plaintiff
could not walk even a single city block without rest, could continuously sit for no more
than two hours and could continuously stand for no more than ten minutes at a time.
[AR 415] Ms. Nguyen further opined that Plaintiff would require a position that allowed
her to shift positions at will and would need to take unscheduled breaks approximately
every two hours. [Id.] In response to a question on the form inquiring how long Plaintiff
would have to rest before returning to work, Ms. Nguyen states that Plaintiff is “unable
to work.” [AR 416] Ms. Nguyen further stated that Plaintiff could never safely lift even
less than ten pounds of weight. [Id.] Ms. Nguyen opined that Plaintiff should never
stoop, crouch or climb ladders, but could occasionally twist and climb stairs. [AR 417]

16

Ms. Nguyen stated that Plaintiff’s impairments or treatment would require her to be
absent from work more than twice a month. [Id.]
The ALJ concluded that Ms. Nguyen’s opinion was “unsupported by the evidence
of record” and thus gave the opinion only “little weight.” 11 [AR 20] Notably, the ALJ
does not contend that Ms. Nguyen’s opinion was inconsistent with the record evidence;
nor does she identify any specific inconsistencies between Ms. Nguyen’s opinion and
the record evidence. Instead, the ALJ states only that the opinion is “unsupported by
the evidence of record.” 12

The Court finds this singular, generalized statement

11

The ALJ also noted that Ms. Nguyen’s opinion that claimant was completely unable to
work was “a conclusion regarding the claimant’s overall disability status that is reserved
for the Commissioner.” [AR 20 (citing Social Security Ruling 96-5p)] Plaintiff does not
challenge this portion of the ALJ’s findings with regard to Ms. Nguyen’s opinion; indeed,
Plaintiff acknowledges that “the regulations state that the final issue of ‘whether [a
claimant] meets the statutory definition of disability’ is an issue reserved to the
Commissioner.” [#15 at 16 (quoting 20 C.F.R. § 404.1527(d)(1))]
12
At the hearing, Plaintiff testified that she had seen Ms. Nguyen “three of four times.”
[AR 39] Following this testimony, the ALJ noted that she didn’t “have any supportive
records from the physician’s assistants to support the medical source statements that
were submitted” and requested that counsel submit updated records from Colorado
Internal Medicine Specialists. [AR 40] Following the hearing, Plaintiff submitted
updated records from the Swedish Medical Center [AR 423], but does not appear to
have ever submitted the requested updated records from Colorado Internal Medicine
Specialists. In general, “[a]n ALJ has the duty to develop the record by obtaining
pertinent, available medical records which come to his attention during the course of the
hearing.” Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996). In unpublished
decisions, however, the Tenth Circuit has held that, where a claimant’s representative
submitted some records but not certain other records specifically discussed at the
hearing, an ALJ could reasonably assume that plaintiff later chose not to submit the
additional evidence because, “perhaps, it was not relevant,” Graham v. Apfel, 149 F.3d
1190, 1998 WL 321215, at *3 (10th Cir. 1998) (unpublished table decision), or “perhaps
because [the unsubmitted records] were of only minor importance,” Steadman v. Apfel,
172 F.3d 879, 1999 WL 76907, at *4 (10th Cir. 1999) (unpublished table decision). The
ALJ’s failure to obtain the pertinent medical records under the circumstances present in
this case—i.e., where the ALJ was aware of the records, commented on the importance
of the records in evaluating a medical source’s opinion, and then discounted the
medical source’s opinion based upon a lack of support in the record—raises significant
concerns for the Court. However, because the parties have not raised this issue and
17

insufficient to explain why the ALJ accorded the opinion only “little weight.” See, e.g.,
Galindo v. Berryhill, No. CV 16-804 CG, 2017 WL 3207914, at *4 (D.N.M. May 3, 2017)
(finding that an ALJ “may not reject an opinion as unsupported by the evidence without
explaining how the opinion and evidence conflict”); Valenzuela v. Berryhill, No. CV 16522 CG, 2017 WL 3207159, at *4 (D.N.M. May 2, 2017) (holding ALJ’s discussion
insufficient to reject treating physician’s opinion because Court was “left to guess at how
exactly [the treating physician’s] findings were unsupported by the record”).
“Although the ALJ did discuss the medical records in general . . . [s]he did not
attempt to make any specific connections between this objective evidence and [Ms.
Nguyen’s opinion] or the weight that should be afforded to it.” O’Dell v. Colvin, No. 15cv-00628-CBS, 2016 WL 5395247, at *5 (D. Colo. Sept. 27, 2016). Moreover, contrary
to the ALJ’s generalized statement, there actually is some evidence in the record that
supports certain of Ms. Nguyen’s opinions. Consistent with Ms. Nguyen’s opinions,
Plaintiff testified at the hearing that she was only able to walk for about ten minutes, that
she could probably only stand for approximately ten minutes before she would need to
sit, and that she cannot lift things due to her balance issues. 13 [AR 44-45] Similarly,

the Court finds sufficient alternative grounds for remanding this matter to the
Commissioner, the Court finds it unnecessary to resolve whether it was error for the ALJ
not to develop the record by obtaining the updated medical records from Colorado
Internal Medicine Specialists.
13
With regard to Plaintiff’s testimony at the hearing, the ALJ found that Plaintiff’s
medically determinable impairments could reasonably be expected to cause Plaintiff’s
self-reported symptoms, but that Plaintiff’s statements “concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.” [AR 19] The remainder of the ALJ’s decision fails
to identify specifically which of the Plaintiff’s statements regarding the severity of her
symptoms the ALJ did not find credible. See Huston v. Bowen, 838 F.2d 1125, 1133
(10th Cir. 1988) (holding that “[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of
18

medical records from July 2014 reflect that Plaintiff had started to ambulate with a
walker, but still was unable to walk with a cane. [AR 442] And records from a January
15, 2015, follow-up appointment indicate that Plaintiff continued to experience some
left-sided weakness. [AR 429] In addition to this evidence in the record at the time the
ALJ rendered her opinion, Ms. Nguyen’s opinion regarding Plaintiff’s physical
capabilities also finds support in the additional Medical Opinion Questionnaire Physical
Activities form completed by another medical provider following the hearing and
accepted into the record by the Appeals Council. 14 [AR 586-88]
Although the ALJ may have had valid reasons to assign only “little weight” to Ms.
Nguyen’s opinion even in the face of this seemingly supportive record evidence, 15 the

findings” (footnote omitted)); McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002)
(criticizing the ALJ’s decision for failing to “explain and support with substantial evidence
which of [the claimant’s] testimony [the ALJ] did not believe and why”). Moreover, the
ALJ’s decision appears to rely heavily on Plaintiff’s purported testimony at the hearing
that she “has good balance.” [AR 19, 20] Contrary to the ALJ’s representation,
Plaintiff’s actual testimony was that she does not have “very good balance without the
walker” [AR 45] and thus the ALJ’s finding that Plaintiff testified that she had good
balance is not supported by substantial evidence.
14
The Tenth Circuit has held that new evidence accepted into the record by the Appeals
Council “becomes part of the administrative record to be considered [by the Court] when
evaluating the [Commissioner’s] decision for substantial evidence.” O’Dell v. Shalala,
44 F.3d 855, 859 (10th Cir. 1994); see also Vallejo v. Berryhill, 849 F.3d 951, 956 (10th
Cir. 2017) (finding that district court was required “to conduct a substantial-evidence
review by assessing the entire agency record, including [the] never-before assessed
[medical source] opinion”).
15
For example, the ALJ gave “great weight” to the opinion offered by Dr. Maria
Gumbinas, a state medical consultant who reviewed claimant’s records, finding Dr.
Gumbinas’s opinion to be “consistent with the evidence of record.” [AR 20] On appeal,
Plaintiff does not challenge the ALJ’s conclusion that Dr. Gumbinas’s opinion is
consistent with the record evidence. Instead, Plaintiff argues that Dr. Gumbinas’s
opinion, dated March 14, 2014, necessarily did not take into account Plaintiff’s medical
records subsequent to the date of the opinion or the opinions offered by Ms. Nguyen.
[#15 at 16-17] Aside from Ms. Nguyen’s opinions, however, Plaintiff has failed to
identify anything in the subsequent medical records that evidences “a material change
19

ALJ has not articulated those reasons and this Court “may not create or adopt post-hoc
rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s
decision itself.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007).
The Court thus finds that the ALJ’s discussion of the weight it accorded Ms.
Nguyen’s opinions regarding Plaintiff’s physical capacity fails to provide sufficient
specific explanation to allow meaningful review by this Court.
B. Opinion Regarding Plaintiff’s Mental Impairments
With regard to Plaintiff’s mental impairments, Ms. Nguyen opined that Plaintiff’s
abilities in the following areas was poor or none: interact appropriately with the general
public, remember work-like procedures, maintain attention for two-hour segments,
perform at a consistent pace without an unreasonable number and length of rest
periods, respond appropriately to changes in routine work setting and deal with normal
work stress, and to understand and remember detailed instructions. [AR 420-22] In
addition, Ms. Nguyen opined that Plaintiff had only “fair” capability of maintaining
socially appropriate behavior, understanding and remembering very short and simple
instructions, and making simple work-related decisions. [AR 421] Ms. Nguyen again
indicated that Plaintiff’s impairments or treatment would require her to be absent from
work more than twice a month. [Id. at 422]
The ALJ concluded that “[t]here is absolutely no evidence to support this opinion”
and therefore gave it “no significant weight.” [AR 17-18] As Plaintiff points out, the ALJ
considered Ms. Nguyen’s opinion with regard to Plaintiff’s mental limitations in the
context of her analysis of whether Plaintiff had depression or “any other psychiatric
in [Plaintiff’s] condition that would render [Dr. Gumbinas’s] opinion stale.” Tarpley v.
Colvin, 601 F. App’x 641, 644 (10th Cir. 2015).
20

condition.” [Id. at 18] The ALJ did not expressly discuss Plaintiff’s mental impairments
in her discussion of the limitations resulting from Plaintiff’s status-post subarachnoid
hemorrhage and ruptured communicating aneurysm or the discussion of Plaintiff’s RFC
in general. [AR 17-20] It thus is not clear whether the ALJ considered that the alleged
mental limitations identified by Ms. Nguyen may have resulted from Plaintiff’s statuspost subarachnoid hemorrhage and ruptured communicating aneurysm as distinguished
from a separate medically determinable mental impairment.
Here again, the Court finds the ALJ’s analysis of Ms. Nguyen’s opinion
insufficient to allow for meaningful review.

As with her discussion of the opinion

regarding Plaintiff’s physical limitations, the ALJ does not contend that Ms. Nguyen’s
opinion is inconsistent with the record evidence or identify any specific inconsistencies
between Ms. Nguyen’s opinion and the record evidence. Instead, the ALJ states only
that “[t]here is absolutely no evidence to support” the opinion. The Court finds this
singular, generalized statement insufficient to explain why the ALJ accorded the opinion
“no significant weight.” See, e.g., Galindo, 2017 WL 3207914, at *4 (finding that an ALJ
“may not reject an opinion as unsupported by the evidence without explaining how the
opinion and evidence conflict”); Valenzuela, 2017 WL 3207159, at *4 (holding ALJ’s
discussion insufficient to reject treating physician’s opinion because Court was “left to
guess at how exactly [the treating physician’s] findings were unsupported by the
record”).
Moreover, the Court finds that the ALJ’s assertion that there is “absolutely no
evidence” to support Ms. Nguyen’s opinion regarding Plaintiff’s mental limitations is not
supported by substantial evidence. To the contrary, there is evidence in the record that

21

supports at least some of Ms. Nguyen’s opinions with regard to Plaintiff’s mental
limitations. 16 At the time Plaintiff was discharged from the rehabilitation program, she
continued

to

have

mild

pragmatic,

written

language,

auditory

and

reading

comprehension deficits, mild-to-moderate memory and attentional deficits, and
moderate organizational, problem-solving, and reasoning deficits. [AR 274] Plaintiff’s
subsequent treatment notes continue to acknowledge that Plaintiff had a history of
neurocognitive deficits as a result of her strokes [AR 429, 439], but the record does not
contain any testing or other quantification of those deficits.

In December 2013,

however, Plaintiff’s treating physician noted that he suspected Plaintiff’s recovery would
be “quite a bit less than her baseline.” [AR 405]
Plaintiff’s own testimony also supports some of the conclusions reached by Ms.
Nguyen with regard to her mental limitations. Plaintiff testified that she has problems
with her concentration and memory. [AR 37]

As an example, Plaintiff stated that she

is unable to use the stove to prepare meals, because she would forget to turn it off. [AR
36-37, 185] Plaintiff further stated that her ability to handle money was not as good as it
used to be because of her memory deficits. [AR 186-87] She reported that she was
“ok” with written instructions but could only follow short spoken instructions. [AR 188]
Plaintiff testified that she has tried memory games recommended by her doctor but finds
them difficult. [AR 38] She testified that she had good days and bad days, with about
six bad days per month where she is extra tired and experiences nausea. [AR 46-48]

16

The Court notes that many of Ms. Nguyen’s opinions regarding Plaintiff’s mental
impairments also are supported by the additional Medical Opinion Questionnaire Mental
Impairments submitted to—and accepted for inclusion in the record by—the Appeals
Counsel. [AR 590-92; see supra note 14]
22

The Court thus finds that the ALJ’s discussion of Ms. Nguyen’s opinion regarding
Plaintiff’s mental limitations is not “sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the . . . medical opinion[s] and the reasons
for that weight.” Oldham, 509 F.3d at 1258 (quotation omitted). In addition, the Court
finds that the ALJ’s conclusion that there was “absolutely no evidence” to support Ms.
Nguyen’s opinions was not supported by substantial evidence.
IV.

CONCLUSION
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that the

decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter
is REMANDED for further proceedings consistent with this Order. 17

DATED: March 16, 2018

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

17

The Court does not intend this Order to dictate the results that should be reached on
remand. See Kepler v. Chater, 68 F.3d 387, 391–92 (10th Cir. 1995) (“We do not dictate
any result [by remanding the case]. Our remand simply assures that the correct legal
standards are invoked in reaching a decision based on the facts of the case.” (internal
quotation omitted)).
23