Bolton v. Commissioner, Social Security Administration

Filing 19

OPINION AND ORDER REVERSING AND REMANDING DISABILITY DETERMINATION by Chief Judge Marcia S. Krieger on 4/11/18. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-cv-00730-MSK
HEATHER J. BOLTON,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.

OPINION AND ORDER REVERSING AND REMANDING DISABILITY
DETERMINATION

THIS MATTER comes before the Court as an appeal from the Commissioner’s Final
Administrative Decision (“Decision”) determining that the Plaintiff Heather J. Bolton is not
disabled within the meaning of sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security
Act. Having considered all of the documents filed, including the record (#12), the Court now
finds and concludes as follows:
JURISDICTION
The Court has jurisdiction over an appeal from a final decision of the Commissioner
under 42 U.S.C. § 405(g). Ms. Bolton sought disability insurance benefits and supplemental
security income under the Social Security Act based on mental and physical impairments that
rendered her unable to work as of March 12, 2013. The state agency denied her claim. She
requested a hearing before an Administrative Law Judge (“ALJ”), who issued an unfavorable
decision. Ms. Bolton appealed to the Appeals Council, which denied her request for review,
making the ALJ’s determination the final decision of the Commissioner. Ms. Bolton timely
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appealed to this Court.
STATEMENT OF FACTS
The Court offers a brief summary of the facts here and elaborates as necessary in its
analysis.
Ms. Bolton was born on May 20, 1970. She obtained her GED when she was twenty-one
years old and has worked as a teacher aide, line cook, and a deli cutter-slicer. She contends that
mental and physical impairments prevent her from working.
Ms. Bolton suffers from multiple mental and physical impairments. Her mental health
impairments include bipolar disorder and anxiety disorder. Her physical impairments include
seizure disorder, headaches or migraines, lumbar spine disorder, and degenerative disc disease.
Treatment and Opinions by Treating Professionals
John Martens, M.D. is a psychiatrist who began treating Ms. Bolton on May 15, 2013 for
bipolar disorder, panic disorder with agora, opioid dependence (in remission), and bulimia
nervosa. On May 13, 2015, he filled out a mental residual functional capacity questionnaire and a
mental residual functional capacity statement in support of her disability claim.
In the mental residual functional capacity questionnaire, Dr. Martens stated that Ms.
Bolton manifested the following signs and symptoms: appetite disturbance with weight change,
decreased energy, suicidal thoughts, feelings of guilt or worthlessness, impaired impulse control,
persistent anxiety, mood disturbance, difficulty thinking or concentrating, recurrent recollections
of past traumatic experiences, paranoia, recurrent obsessions or compulsions, substance
dependence, emotional withdrawal or isolation, intense and unstable interpersonal relationships
and impulsive and damaging behavior, hallucinations, emotional lability, flight of ideas, manic
syndrome, deeply ingrained maladaptive patterns of behavior, vigilance and scanning, pressures

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of speech, easy distractibility, autonomic hyperactivity, memory impairment, sleep disturbance,
oddities of though, perception, speech, or behavior, decreased need for sleep, loss of intellectual
ability, and recurrent severe panic attacks.
Dr. Martens also opined in the mental residual functional questionnaire that:


Ms. Bolton’s abilities to set realistic goals or make plans independently of others,
maintain socially appropriate behavior, and adhere to basic standards of neatness and
cleanliness were unlimited or very good;



her abilities to understand, remember, and carry out instructions, whether short and
simple or detailed, maintain attention for two hours, maintain regular attendance and be
punctual, sustain an ordinary routine without special supervision, work in coordination
with or proximity to others without being duly distracted, make simple work-related
decisions, ask simple questions or request assistance, accept instructions and respond
appropriately to criticism from supervisors, be aware of normal hazards and take
appropriate precautions, deal with stress of semiskilled and skilled work, interact
appropriately with the general public, travel in unfamiliar places, and use public
transportation were limited but satisfactory;



and her abilities to remember work-like procedure, complete a normal workday and
workweek without interruptions from psychologically based symptoms, perform at a
consistent pace without an unreasonable number of length or rest periods, get along with
co-workers or peers without unduly distracting them or exhibiting behavior extremes,
respond appropriately to changes in a routine work setting, and deal with normal stress
were severely limited.

He further opined that she would be absent from work because of her impairments about four

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days per month.
In the mental residual functional statement, Dr. Martens opined that:


Ms. Bolton’s abilities to interact appropriately with the general public, ask simple
questions or request assistance, accept instructions and respond appropriately to criticism
from supervisors, get along with co-workers or peers without distracting them or
exhibiting behavioral extremes, maintain socially appropriate behavior, and adhere to
basic standards of neatness and cleanliness did not preclude her performance of any
aspect of a job;



her abilities to carry out very short and simple instructions, work in coordination with or
in proximity to others without being distracted, and make simple work-related decisions
precluded her performance of a job for 5% of an eight-hour workday;



her abilities to understand and remember very short and simple instructions, maintain
attention and concentration for extended periods of time, perform activities within a
schedule, maintain regular attendance, be punctual within customary tolerances, sustain
an ordinary routine without special supervision, complete a normal workday and
workweek without interruptions from symptoms, perform at a consistent pace without an
unreasonable number and length of rest periods, be aware of normal hazards and take
appropriate precautions, and set realistic goals or make plans independently of others
decisions precluded her performance of a job for 10% of an eight-hour workday;



and her abilities to remember locations and work-like procedures, understand,
remember, and carry out detailed instructions, respond appropriately to changes in the
work setting, and travel in unfamiliar places or use public transportation precluded her
performance of a job for 15% of an eight-hour workday.

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Dr. Martens further opined in the mental residual functional statement that Ms. Bolton would be
off task for 20% of an eight-hour work day, five days per week, she would be absent from work
for three days each month, she would be unable to complete an eight-hour workday three days
per month, and could only perform a job eight hours per day, five days per week, on a sustained
basis for 50% of the time.
Kirsten Nielsen, M.D. and Melissa Butler, P.A.C., both at Lutheran Neurology, began
treating Ms. Bolton on June 30, 2014 for her seizure disorder and migraine headaches. On
February 10, 2015, Ms. Butler completed a headaches residual functional capacity questionnaire
and a seizures medical source statement. On June 10, 2015, Dr. Nielsen completed a medical
source statement.
In the headaches residual functional capacity questionnaire, Ms. Butler opined that Ms.
Bolton likely would have one migraine headache per month that would last for one to two days
and would require her to rest for twenty-four to forty-eight hours before returning to work. She
would likely need to take one unscheduled work break per month, and would be absent from
work about two days each month. Symptoms associated with her migraines included nausea,
vomiting, malaise, photosensitivity, visual disturbances, mood changes, mental confusion, and
the inability to concentrate. Ms. Butler also identified tenderness as an objective sign of the
migraine headaches. Ms. Butler opined that Ms. Bolton was incapable of performing even “low
stress” jobs because stress triggered her migraines. Ms. Butler further opined that Ms. Bolton
would likely suffer one migraine headache per month.
In her seizures medical source statement, Ms. Butler noted that Ms. Bolton likely would
have two to three, non-convulsive seizures per month that would cause Ms. Bolton to be
confused for several hours after they ended. Ms. Butler also noted that Ms. Bolton had

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undergone an EEG test that was “positive … with a right temporal focus”. Ms. Butler stated that
stress and exertion could precipitate Ms. Bolton’s seizures. Ms. Butler opined that Ms. Bolton
was incapable of even “low stress” work, that Ms. Bolton could sit for about four hours and
stand and/or walk for less than two hours in an eight-hour workday; she could lift ten pounds
frequently, lift ten pounds occasionally, lift twenty pounds rarely, but could not lift fifty pounds,
and that Ms. Bolton would need to take unscheduled breaks multiple times per hour because of
confusion or stress that would last for thirty minutes. Ms. Butler further opined that Ms. Bolton
would likely be absent from work about two days each month.
In her medical source statement, Dr. Nielsen was more conservative in her assessment of
Ms. Bolton’s seizures. She did not conclude that Ms. Bolton suffered from seizures; rather, she
stated that Ms. Bolton suffered from seizure-like spells. Where Ms. Butler interpreted Ms.
Bolton’s EEG to be positive, Dr. Nielsen stated that the EEG was negative but did not rule out
epileptic seizures. She noted that Ms. Bolton had not had a seizure-like spell since February 6,
2015 but, prior to that had been having one to four spells per month. She stated that it was
unknown whether stress or exertion could precipitate Ms. Bolton’s spells but that the spells could
cause confusion and severe headaches. She opined that Ms. Bolton could for about four hours in
an eight-hour workday, could stand and/or walk for about two hours in an eight-hour workday,
could lift ten pounds or less occasionally, but could not lift twenty or more pounds. Although her
assessment of Ms. Bolton’s seizure-like spells was more conservative, she did opine that Ms.
Bolton’s migraine headaches would require her to take one to two unscheduled breaks per week
and would cause her to be absent from work for about four or more days each month.
Opinions by Non-treating Professionals
Bruce Chessen, Ph.D., a psychologist, performed a psychological evaluation of Ms.

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Bolton on April 19, 2012 in conjunction with a criminal case pending against her. He reviewed
her medical records, interviewed her, and administered the following tests during the evaluation:
Beck Depression Inventory II, Personality Assessment Inventory, Millon Clinical Multiaxial
Inventory III, and Rorschach Ink Blot Test. He diagnosed her with bipolar I disorder, with opioid
dependence, and of being a victim of abuse. He also noted that she had traits of mixed
personality disorder including schizotypal, schizoid, avoidant and dependent. He did not provide
any opinions relevant to her opinion to work.
Donald Degroot, Ph.D., a psychologist, performed a psychiatric consultative examination
for Ms. Bolton on December 10, 2013. His diagnostic impression of Ms. Bolton was that she
suffers from bipolar type 1 disorder, anxiety disorder with panic attacks and agoraphobic
features, dyslexia by self report, and migraines. He opined that;


her abilities to understand, remember, and carry out simple instructions, and to make
judgments on simple, work-related decisions were mildly impaired; her abilities to
understand, remember, and carry out complex instructions and to interact appropriately
with supervision, co-workers, and the public were moderately to markedly impaired;



and her abilities to make judgments on complex, work-related decisions, to respond
appropriately to usual work situations, and to respond appropriately to changes in a
routine work setting were markedly impaired.
Claudia Elsner, M.D., performed a consultative medical examination for Ms. Bolton on

November 19, 2013. She found that Ms. Bolton suffered from seizure disorder with chronic
recurrent headaches, suffered from chronic lower-back pains without signs of radiculopathy, and
had an unremarkable musculoskeletal examination, which did not, however, exclude occasional
sciatic irritation. She opined that Ms. Bolton should not stand for more than twenty to thirty

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minutes at a time and could sit for an hour at a time. She further opined, “Any normal daily
function including gainful employment is dependent on stable mental health and absence of
chronic recurrent headaches.”
David H. Bristow, a state-agency physician, reviewed Ms. Bolton’s file but did not
examine her. He found that Ms. Bolton had the following severe impairments: DDD (disorders
of back-discogenic and degenerative), affective disorders, and anxiety disorders. He opined that
Ms. Bolton could occasionally lift and/or carry fifty pounds, frequently lift and/or carry twentyfive pounds, stand and/or walk for about six hours in an eight-hour workday, could push and/or
pull without limitation, could frequently climb ramps and stairs, should never climb ladders,
ropes, or scaffolds, could balance without limitation, and could frequently stoop, kneel, crouch,
and crawl. He further opined that she should avoid concentrated exposures to hazards such as
machinery and heights.
MaryAnn Wharry, Psy.D., a state-agency psychologist, reviewed Ms. Bolton’s file on
December 29, 2013 but did not examine her. Dr. Wharry opined that:


Ms. Bolton’s abilities to remember locations and work-like procedures, to understand,
remember, and carry out short and simple instructions, to perform activities within a
schedule, to maintain regular attendance, to be punctual within customary tolerances, to
sustain an ordinary routine without special supervision, to work in coordination with or in
proximity to others without being distracted by them, to make simple work-related
decisions, to ask simple questions or request assistance, to be aware of normal hazards
and take appropriate precautions, to travel in unfamiliar places or use public
transportation, and to set realistic goals or make plans independently others were not
significantly limited;

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

and her abilities to understand, remember, and carry out detailed instructions, to maintain
attention and concentration for extended periods, to complete a normal workday and
workweek without interruptions from psychologically based symptoms, to perform at a
consistent pace without an unreasonable number and length of rest periods, to interact
appropriately with the general public, to accept instructions and respond appropriately to
criticism from supervisors, to get along with coworkers or peers without distracting them
or exhibiting behavioral extremes, to maintain socially appropriate behavior, to adhere to
basis standards of neatness and cleanliness, and to respond appropriately to changes in
the work setting were moderately limited.
THE ALJ’S DECISION
The ALJ analyzed his case pursuant to the sequential five-step inquiry. At step one, the

ALJ found that Ms. Bolton had not worked or engaged in substantial gainful activity from the
alleged onset date of March 12, 2013. At step two, the ALJ found Ms. Bolton had the following
severe impairments: seizure disorder, lumbar spine disorder, headaches or migraines, bipolar
disorder, anxiety disorder, and degenerative disc disease. At step three, the ALJ found that
Bolton’s impairments did not equal the severity of the listed impairment in the appendix of the
regulations. At step four, the ALJ first assessed Ms. Bolton’s Residual Functional Capacity
(“RFC”) and determined that:
[Ms. Bolton] has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c)--except as otherwise stated as
follows. Physically, the claimant is able to lift 50 pounds occasionally and 25
pounds frequently. During an 8-hour workday, the claimant is able to stand and/or
walk 6 hours and sit 6 hours. The claimant is able to climb ramps and stairs
frequently. The claimant is unable to climb ladders, scaffolds, and ropes. The
claimant should avoid all exposure to unprotected heights, pools of water, and
motorized vehicles. The claimant is able to frequently stoop, crouch, kneel, and
crawl. Mentally, the claimant is able to use judgment in making work decisions;
respond appropriately to supervisors, coworkers, and work situations; and deal
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with changes in a routine work setting. The claimant is able to understand,
remember, and carry out simple instructions. This ability is equivalent to being
able to perform unskilled work. The claimant should not perform any assemblyline work. The claimant should not engage in work requiring intense, sustained
concentration. The claimant should not interact with the public. The claimant is
able to interact with coworkers occasionally.
The ALJ then found that Ms. Bolton could not perform past relevant work as a teacher aide, line
cook, or deli cutter-slicer. However, at step five, the ALJ found that Ms. Bolton could perform
jobs that exist in significant numbers in the national economy, and thus, she was not disabled.
ISSUES PRESENTED
Ms. Bolton raises six objections to the Decision: (1) the ALJ erred by failing to find that
Ms. Bolton’s mental impairments equaled the severity of the listed impairment in the appendix
of the regulations; (2) the ALJ erred by failed to have a medical expert testify; (3) the ALJ erred
by failing to give Ms. Bolton’s treating physician’s opinions controlling weight; (4) the ALJ
erred when assigning relative weight to the medical opinions in the record; (5) the ALJ
improperly determined that Ms. Bolton is not credible; and (6) the ALJ failed to follow
governing law when analyzing the statements of lay witnesses. The Court will only address
whether the ALJ erred by failing to assign Ms. Bolton’s treating physicians’ opinions controlling
weight because the issue is dispositive.
STANDARD OF REVIEW
On appeal, a reviewing court’s judicial review of the Commissioner of Social Security’s
determination that claimant is not disabled within the meaning of the Social Security Act is
limited to determining whether the Commissioner applied the correct legal standard and whether
the Commissioner’s decision is supported by substantial evidence. Hamilton v. Sec’y of Health
&Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). If the ALJ
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failed to apply the correct legal standard, the decision must be reversed, regardless of whether
there was substantial evidence to support factual findings. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993). In determining whether substantial evidence supports factual findings,
substantial evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown, 912 F.2d at 1196; Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). It
requires more than a scintilla but less than a preponderance of the evidence. Lax, 489 F.3d at
1084; Hedstrom v. Sullivan, 783 F. Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial
if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave
v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Although a reviewing court must
meticulously examine the record, it may not weigh the evidence or substitute its discretion for
that of the Commissioner. Id.
ANALYSIS
Ms. Bolton argues that the ALJ erred by failing to give her treating physicians’ opinions
controlling weight. The Commissioner argues that the ALJ gave legitimate reasons for not doing
so.
A medical opinion provided by a treating physician must be given controlling weight if
(1) the treating physician is an acceptable medical source, (2) the opinion is well supported by
medically acceptable clinical and laboratory diagnostic techniques, and (3) the opinion is
consistent with the other substantial evidence in the record. SSR 06-03p, 2006 WL 2329939, at
*2 (Aug. 6, 2006); Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007). If any of these
requirements is not satisfied, then the opinion is not accorded controlling weight. Drapeau v.
Massanri, 255 F.3d 1211, 1213 (10th Cir 2001). Further, the ALJ must articulate sufficiently
specific reasons for not according the opinion controlling weight to enable a court to

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meaningfully review the ALJ’s findings on appeal. Langley v. Barnhart, 373 F.3d 1116, 1122
(10th Cir. 2004). The failure to articulate such reasons requires reversal and remand. Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
When a treating physician's opinion is not given controlling weight, its relative weight
must be assessed in comparison to other medical opinions in the record. The factors considered
for assessing the weight of all medical opinions other than those entitled to controlling weight
are as follow:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician's opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ's attention which tend to support or contradict the opinion.
Allman v. Colvin, 813 F.3d 1326, 1331–32 (10th Cir. 2016). None of these factors are
controlling; not all of them apply to every case, and an ALJ need not expressly discuss each
factor in his or her decision. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). However,
“the record must reflect that the ALJ considered every factor in the weight calculation.”
Andersen v. Astrue, 319 Fed. App’x 712, 718-19 (10th Cir. 2009)(emphasis in original). Finally,
the ALJ must provide legitimate, specific reasons for the relative weight assigned. Langley v.
Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
The ALJ specifically found that Dr. Martens’, Ms. Butler’s, and Dr. Nielsen’s opinions
were not entitled to controlling weight. Although the ALJ cited to the correct legal standard
governing whether to give a treating physician’s opinion controlling weight, he only expressly
addressed the third requirement - whether the opinions are consistent with the other substantial
evidence in the record. In so doing, the ALJ did not address the opinions of each medical
provider, individually. Instead, he considered them collectively and compared them only to a
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conclusion that the ALJ drew from the state agency physician and consulting examiners opinions
that “[Ms. Bolton’s] limitations would not preclude the performance of substantial gainful
activity.”
The ALJ fails to identify how the opinions of the state agency physician and consultative
examiners specifically conflict with Dr. Martens’, Ms. Butler’s, and Dr. Nielsen’s opinions.
None of the state agency physicians’ and consultative examiners’ reports contain a conclusion
that Ms. Bolton’s limitations would not preclude the performance of substantial gainful activity.
Indeed, the Court would be surprised to find such an opinion in any of their reports. Whether a
person is capable is performing substantial gainful activity is an issue reserved to the
Commissioner, and it is not appropriate for medical providers or examiners to express an opinion
as to this issue. See 20 C.F.R. § 404.1527(d); Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir.
2008). Without specific reference to inconsistencies between the opinions of the state agency
physician or consulting examiners and those of Ms. Bolton’s treating physicians’, the Court
cannot meaningfully review the ALJ’s finding that Ms. Bolton’s physicians’ opinions are
inconsistent with other evidence in the record.
However, the ALJ’s reasons as to the relative weight he assigned to Dr. Martens’, Ms.
Butler’s, and Dr. Nielsen’s opinions can also be pertinent to whether such opinions should be
entitled to controlling weight. As to Dr. Martens’ opinions, among other reasons, the ALJ found
that they were entitled to less weight because they are internally inconsistent. An ALJ may
legitimately discount medical evidence if the evidence contains internal inconsistencies or is
inconsistent with other medical evidence. See Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir.
2007). The ALJ cited to multiple examples in which he found Dr. Martens’ opinions to be
inconsistent information in Ms. Bolton’s treatment records. For example, Dr. Martens

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incorrectly stated that Ms. Bolton’s highest GAF score for the previous year was 52 when his
medical records showed GAF scores of 55 and 58, and in the mental residual functional capacity
questionnaire and mental residual functional statement, which were completed on the same day,
he expressed differing opinions as to Ms. Bolton’s abilities to get along with co-workers, to
interact appropriately with the general public, to ask or respond to simple questions, accept
instructions and respond appropriately to criticism. These inconsistencies certainly call into
question the reliability of Dr. Marten’s opinions, especially because he rendered conflicting
opinions on the same day. Although, not offered as a reason by the ALJ, this would have been
sufficient for the ALJ to find that Dr. Martens’ opinions are inconsistent with other substantial
evidence in the record and, thus, not entitled to controlling weight.
As to Ms. Bulter’s opinions, the ALJ found that they were entitled to less weight because,
among other things, Ms. Butler is not an acceptable medical source. Acceptable medical sources
include licensed medical or osteopathic doctors, psychologists, optometrists, podiatrists, and
qualified speech-language pathologists, but they do not include physician’s assistants. See SSR
06-03p, 2006 WL 2329939, at *1 (Aug. 6, 2006); Gonzales v. Colvin, 69 F. Supp. 3d 1163, 1169
(D. Colo. 2014). Ms. Butler is a physician’s assistant. Thus, her opinions are not entitled to
controlling weight.
As to Dr. Nielsen’s opinions, the ALJ found that they are entitled to less weight because
her medical source statement is internally inconsistent and her opinions are inconsistent with
treatment records. Specifically, in the medical source statement, Dr. Neilson opined that Ms.
Bolton would need to take one to two breaks for two to six hours from work each week because
of migraines. The ALJ reasoned that “Dr. Nielsen’s opinion is based on a migraine frequency of
1-2 times a week, …” , then found that this was inconsistent with the medical source statement

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because Dr. Nielsen did not mention migraine frequency in it. This reasoning is circular and
unsupported. It was not necessary for Dr. Nielsen to expressly address migraine frequency when
her opinion as to it could easily be inferred, which the ALJ was clearly able to do. Thus, Dr.
Nielsen’s technical failure to expressly mention migraine frequency does not support a finding
that her medical source statement is internally inconsistent.
The ALJ’s second reason for assigning Dr. Nielsen’s opinion less weight is that her
medical records for Ms. Bolton show that she had migraines only once per month, not once or
twice a week. In so finding, the ALJ failed to address contrary evidence that supports Dr.
Nielsen’s opinion. An ALJ cannot cherry-pick evidence in support of his decision to deny
benefits while failing to discuss contrary evidence, especially when the contrary evidence is
contained in the same documentation as the supporting evidence. See Frantz v. Astrue, 509 F.3d
1299, 1302 (10th Cir. 2007) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)).
Indeed, although an ALJ is not required to discuss every item of evidence before him, he is
required to “discuss the uncontroverted evidence he [chose] not to rely upon, as well as
significantly probative evidence he reject[ed].” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir.
2007) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)). The failure to do so
makes it impossible for an appellate court to assess whether an ALJ’s decision is supported by
substantial evidence and requires reversal and remand for the ALJ to set out specific findings and
reasons for accepting or rejecting the uncontroverted or substantially probative evidence the ALJ
did not rely on or rejected. Clifton, 79 F.3d at 1009-10.
Ms. Bolton began receiving treatment from Dr. Nielsen and Ms. Butler on June 30, 2014
and reported that she had been having three to four migraines per week, which each could last for
one to three days. R. 1014. On July 28, 2014, Ms. Bolton told Ms. Butler that her treatment was

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having a positive effect to the degree that she was “no longer having daily headaches.” R. 1316.
The ALJ failed to address this evidence in the Decision. Instead, he focused exclusively on the
treatment record from December 12, 2014, which states that Ms. Bolton’s migraine frequency
had lessened to once a month. R. 1661.
Notably, Ms. Bolton continued to receive treatment after her December 12, 2014
appointment. She had two more appointments on February 6, 2015 and May 29, 2015 before Dr.
Nielsen filled out her medical source statement on June 10, 2015. R. 1633, 1637. After a
thorough review of the record, the Court has been unable to locate the notes from Ms. Bolton’s
treatment with Ms. Butler or Dr. Nielsen on these occasions. The Court will not speculate as to
what those notes would contain.
However, other records show that on May 29, 2015, Dr. Nielsen increased Ms. Bolton’s
Topamax prescription to 100mg a day to treat Ms. Bolton’s migraine headaches. R. 2063. On
July 20, 2015, Ms. Bolton was admitted in the Lutheran Medical Center for suicidal ideation, and
the attending physician stated, “Her seizures are in remission, but her migraines have not
improved …” R. 2062. On October 14, 2015, Ms. Bolton’s primary care physician also noted
that her chronic headaches had not improved. R. 2098, 2101. These records indicate that the
severity and frequency of Ms. Bolton’s migraine headaches had increased since her December
12, 2014 appointment, which would support Dr. Nielsen’s statement that Ms. Bolton was
suffering from migraines once or twice a week.
Although the aforementioned evidence would support Dr. Nielsen’s opinion, the ALJ
failed to address it. Instead, the ALJ cherry-picked a statement from Dr. Nielsen’s records to
reject her opinion and deny Ms. Bolton’s claim. Thus, the Court cannot meaningfully review
whether the ALJ’s decision not to assign Dr. Nielsen’s opinion controlling weight is supported

16

by substantial evidence.
In summary, ALJ’s reason for not giving Dr. Nielsen’s opinion controlling weight are not
sufficiently specific to permit meaningful review. Further, the ALJ’s reasons for assigning her
opinion little relative weight do not otherwise justify failing to give it controlling weight. Thus,
this matter must be reversed and remanded to determine whether Dr. Nielsen’s opinion is entitled
to controlling weight. Inasmuch as it has determined that this matter must be reversed and
remanded, the Court need not address Ms. Bolton’s remaining arguments. See Madrid v.
Barnhart, 447 F.3d 788, 792 (10th Cir. 2006).
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is REVERSED and this matter
is REMANDED to the ALJ for further proceedings. The Clerk shall enter a judgment in this
matter.
Dated this 11th day of April, 2018.
BY THE COURT:

Marcia S. Krieger
United States District Court

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