May v. Commissioner, Social Security Administration

Filing 22

ORDER: SSA's decision is reversed, and this case is remanded for proceedings consistent with this opinion, by Judge Lewis T. Babcock on 8/22/2018. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Action No. 1:17-cv-01359-LTB
MARY ANN R. MAY,
v.

Plaintiff,

NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
Plaintiff, Mary Ann R. May, appeals from the Social Security Administration
(“SSA”) Commissioner’s final decision denying her application for disability
insurance benefits (“DIB”), 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). Oral argument
would not materially assist me in the determination of this appeal.
After consideration of the parties’ briefs, as well as the administrative record,
I REVERSE and REMAND the Commissioner’s final order for further proceedings.
I.

STATEMENT OF THE CASE

Plaintiff is a 65 year-old woman who has worked mainly in the nonprofit
sector. [Administrative Record (“AR”) 123, 167] She seeks judicial review of SSA’s
decision denying her application for DIB. ECF No. 1. Plaintiff filed her application
on October 29, 2014 alleging that her disability began on November 11, 2013. [AR
1

123, 125]
The application was initially denied on February 11, 2015. [AR 60–66] The
Administrative Law Judge (“ALJ”) conducted an evidentiary hearing on October 12,
2016 and issued a written ruling on February 7, 2017. [AR 12–58] In that ruling,
the ALJ denied Plaintiff’s application on the basis that she was not disabled
because, considering her age, education, and work experience, she had the residual
functional capacity to perform past relevant work. [AR 12–25] The SSA Appeals
Council subsequently denied Plaintiff’s administrative request for review of the
ALJ’s determination, making SSA’s denial final for the purpose of judicial review.
[AR 1–3]; see 20 C.F.R. §404.981. Plaintiff timely filed her Complaint with this
court seeking review of SSA’s final decision.
II.

LAW

A. SSA’s Five-Step Process for Determining Disability
A claimant is “disabled” under Title II of the Social Security Act if she is
unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see Bowen v. Yuckert, 482 U.S. 137,
140 (1987). SSA has established a five-step sequential evaluation for determining
whether a claimant is disabled and thus entitled to benefits. 20 C.F.R. § 404.1520.
At step one, SSA asks whether the claimant is presently engaged in
“substantial gainful activity.” If she is, benefits are denied and the inquiry stops.
20 C.F.R. § 404.1520(b). At step two, SSA asks whether the claimant has a “severe
2

impairment”—that is, an impairment or combination of impairments that
“significantly limits [her] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). If she does not, benefits are denied and the inquiry stops. If
she does, SSA moves on to step three, where it determines whether the claimant’s
impairments “meet or equal” one of the “listed impairments”—impairments so
severe that SSA has determined that a claimant who has them is conclusively
disabled without regard to the claimant’s age, education, or work experience.
20 C.F.R. § 404.1520(d). If not, SSA goes to step four.
At step four, SSA determines the claimant’s residual functional capacity
(“RFC”)—that is, what she is still able to do despite her impairments—and asks
whether the claimant can do any of her “past relevant work” given that RFC.
20 C.F.R. § 404.1520(e). If not, SSA goes to the fifth and final step, where it has the
burden of showing that the claimant’s RFC allows her to do other work in the
national economy in view of her age, education, and work experience.
20 C.F.R. § 404.1520(g).
In contrast with step five, the claimant has “the burden of establishing a
prima facie case of disability at steps one through four.” Doyal v. Barnhart, 331
F.3d 758, 760 (10th Cir. 2003).
B. Standard of Review
My review concerns only whether SSA’s factual findings are supported by
substantial evidence and whether the correct legal standards were applied. Hamlin

v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). Reversal may be appropriate
when SSA either applies an incorrect legal standard or fails to demonstrate reliance
3

on the correct legal standards. Id. I must “determine whether the findings of fact . . .
are based upon substantial evidence, and inferences reasonably drawn therefrom. If
they are so supported, they are conclusive upon the reviewing court and may not be
disturbed.” Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Hamlin v. Barnhart, 365 F.3d at 1214.
A conclusion “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.” Id.
The record must demonstrate that the ALJ considered all of the evidence, but an
ALJ is not required to discuss every piece of evidence. Clifton v. Chater, 79 F.3d
1007, 1009–10 (10th Cir. 1996). I examine the record as a whole, but may not
reweigh the evidence or substitute my judgment for that of the ALJ. Hamlin v.

Barnhart, 365 F.3d at 1214.
III.

THE ALJ’S RULING

In his ruling, the ALJ followed the five-step analysis outlined above. The ALJ
concluded under the first step that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date. [AR 17] Under step two, the ALJ determined
that Plaintiff had the “following severe combination of impairments: status post
breast cancer and diabetes mellitus.” [Id.]
The ALJ concluded under step three that the enumerated severe
impairments did not meet or medically equal an impairment in 20 C.F.R., Pt. 404,
Subpt. P, App. 1. [AR 17–19] The ALJ found that Plaintiff had the RFC to perform

4

light work except that she is limited “with occasional posturals, except no crawling
or climbing of ladders, ropes, or scaffolds; and no exposure to hazards such as
unprotected heights and moving mechanical parts; also no concentrated exposure to
extreme heat, extreme cold, wetness, humidity and vibration.” [AR 19]
Under step four, the ALJ found that Plaintiff was able to perform her past
relevant work of volunteer services coordinator, fundraiser, and grant coordinator.
[AR 25] Thus, the ALJ concluded that Plaintiff is not disabled. [AR 25–26]
IV.

ISSUES ON APPEAL

There is an initial issue concerning whether Plaintiff is limited to light work
and whether she is unable to perform work on a regular and continuing basis.
Additionally, in appealing the ALJ’s decision, Plaintiff argues that the ALJ erred
by: (1) not giving proper weight to the opinions of Gordon Ehlers, M.D., Marsha
Evans, M.A., L.P.C., and Gayle Frommelt, Ph.D.; (2) failing to consider the effects of
Plaintiff’s mental health impairments when formulating her RFC; (3) improperly
determining Plaintiff’s credibility; and (4) failing to sufficiently justify his rejection
of a statement from a third-party witness.
A. The ALJ’s analysis of Plaintiff’s limitation to unskilled work or
“Regular and Continuing Employment”
Plaintiff makes two general arguments: (1) that she is “limited to no more
than sedentary or light, unskilled work, and is disabled pursuant to Medical
Vocational Disability Rule 201.06 or 202.06 (20 C.F.R. §404, Subpart 1, Appendix
2);” and (2) “she is unable to perform work on a regular and continuing basis and is
therefore disabled under the provisions of the Social Security Ruling 96-8p . . . .”
5

ECF No. 16 at 19.
Defendant argues that since the ALJ determined that Plaintiff could perform
light work, “the only point of contention in this case is Plaintiff’s argument that the
ALJ should have, but did not include a limitation to unskilled work.” Def.’s Resp.,
ECF No. 17 at 8–9. Defendant then shapes its argument under the guise of whether
the ALJ was correct in not including a limitation to unskilled work in Plaintiff’s
RFC. Id. at 9–24.
In her Reply, Plaintiff contends that Defendant misinterprets her argument
and that “she has argued that either a limitation to unskilled work, or a limitation
to less than ‘regular and continuing’ employment requires a finding of disability in
her case.” Pl.’s Reply, ECF No. 20 at 3. Plaintiff continues that no competitive work
would be available if certain hypotheticals presented to the VE were established to
be present “regardless of skill level.” Id. Plaintiff argues that the hypotheticals
presented were indeed established by Dr. Ehlers’ opinion, and as such, the ALJ did
not reasonably explain why he rejected those opinions. Id. at 8–9; see ECF No. 16 at
21.
Additionally, Plaintiff clarifies that if the ALJ properly formulated the RFC
with Dr. Ehlers’ opinions, under SSR 96-8p Plaintiff could not work a regular and
continuing work schedule and should be found disabled regardless of her ability to
perform skilled work. Id. at 4.
I partially agree with Plaintiff concerning this distinction. The parties agree
that part of what is at dispute is whether Plaintiff can perform only unskilled work.

6

ECF Nos. 17 at 8–9 and 20 at 4. That analysis is contained infra. Plaintiff also
claims in her Opening Brief that “she is unable to perform work on a regular and
continuing basis and is therefore disabled under the provisions of Social Security
Ruling 96-8p . . . .” ECF No. 16 at 19.
SSR 96-8p is a clarification of SSA’s policies regarding the assessment of a
claimant’s RFC. SSR 96-8p, 1996 WL 374184, at *1 (Jul. 2, 1996) (“SSR 96-8p”).
SSR 96-8p reads that “[o]rdinarily, RFC is an assessment of an individual’s ability
to do sustained work-related physical and mental activities in a work setting on a
regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day,
for 5 days a week, or an equivalent work schedule.” Id.
Plaintiff appears to argue that if the ALJ accepted Dr. Ehlers’ opinions
regarding Plaintiff’s need to: (1) be off-task for 25% or more of the day; or (2) take
excessive breaks, it would necessarily mean that Plaintiff is disabled because she
could not work a “full ‘regular and continuing’ work schedule.” ECF No. 20 at 4.
I disagree that I must find Plaintiff disabled if it is determined that Dr.
Ehlers’ relevant opinions were improperly disregarded, but I do find that if such
opinions were improperly disregarded, remand is warranted. Haga v. Astrue, 482
F.3d 1205, 1208 (10th Cir. 2007) (remanding in part because the ALJ erred by not
considering an RFC for “work activity on a regular and continuing basis”).
B. The ALJ’s weight given to, and evaluation of, certain medical opinions
Plaintiff argues that substantial evidence does not support the weight the
ALJ gave to the opinions of Dr. Ehlers, Dr. Frommelt, and Ms. Evans. Pl.’s Br., ECF
No. 16 at 20–25.
7

In formulating a claimant’s RFC, “the ALJ must give consideration to all the
medical opinions in the record.” Paulsen v. Colvin, 665 F. App’x 660, 664 (10th Cir.
2016) (unpublished) (citing 20 C.F.R. § 404.1527(c)). However, an “ALJ is not
required to discuss every piece of evidence. Rather, in 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.” Jimison ex rel. Sims v. Colvin, 513 F. App’x 789, 794 (10th Cir. 2013)
(unpublished) (quoting Clifton v. Chater, 79 F.3d at 1009–10).

1. Dr. Ehlers’ Opinion
Plaintiff argues that the ALJ, in giving Dr. Ehlers’ opinion “some weight,” did
not take Dr. Ehlers’ suggested limitations into account. ECF No. 16 at 20. Plaintiff
points to various notes and opinions from Dr. Ehlers and argues that these should
have been included in Plaintiff’s RFC, and if so included, would have prevented
Plaintiff “from performing any competitive work in the national economy, per the
vocational expert’s testimony.” Id. at 21. Plaintiff states that reversible error
occurred because the ALJ did not provide specific and legitimate reasons for
rejecting noted portions of Dr. Ehler’s opinion. Id. Further, Plaintiff argues that it
was incorrect for the ALJ to reject Dr. Ehler’s opinion—along with Ms. Evan’s,
Plaintiff’s, and a third-party witness’ opinions—based upon Plaintiff’s exercise
regimen. Id. at 21–22. Plaintiff reasons that the act of her exercising does not
undoubtedly mean she was not fatigued. Id.
“A treating-source opinion concerning the nature and severity of a

8

claimant’s impairment is entitled to controlling weight provided it ‘is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record.’” Paulsen v. Colvin,
665 F. App’x at 664 (quoting 20 C.F.R. § 404.1527(c)(2)) (alterations omitted). The
weight the ALJ assigns to a treating physician “must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” SSR 96-2p, 1996 WL
374188, at *5 (Jul. 2, 1996) (“SSR 96-2p”).
If the ALJ declines to give a treating-source opinion controlling weight, he
must then determine what weight to give the opinion using the factors in
20 C.F.R. § 404.1527(c)(2)(i), (c)(2)(ii), and (c)(3) through (c)(6). Paulsen v. Colvin,
665 F. App’x at 664. Under SSR 96-2p, all these factors must be weighed by the ALJ
in determining the treating-source opinion’s weight. SSR 96–2p, at *4. However, the
ALJ need not explicitly discuss each factor. Armijo v. Astrue, 385 F. App’x 789, 795
(10th Cir. 2010) (unpublished); see Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007) (“That the ALJ did not explicitly discuss all the [20 C.F.R. § 404.1527(c)]
factors for each of the medical opinions before him does not prevent this court from
according his decision meaningful review.”). “An ALJ cannot reject a treating
source’s opinion without identifying ‘specific, legitimate reasons.’” Schwarz v.

Barnhart, 70 F. App’x 512, 515 (10th Cir. 2003) (unpublished) (citing cases).
Plaintiff argues that the ALJ did not give specific and legitimate reasons in
rejecting Dr. Ehlers’ opinions that his findings concerning Plaintiff would cause her

9

“to be off task 25% or more of the workday, that she would need to have hourly
breaks of 15 minutes each, and that she was incapable of even ‘low stress’ work.”
ECF No. 16 at 21.
It appears that the main reason the ALJ only gave “some weight” to Dr.
Ehlers’ opinion is that the ALJ found “that nothing in Dr. Ehlers’ treatment notes
identifie[d] that the claimant had significant limitations with sitting, standing,
walking, lifting, or carrying, given her ability to engage in extensive physical fitness
activities.” [AR 23] Concerning those extensive physical activities, the ALJ
highlighted “[w]hile the claimant reported some issues with fatigue, Dr. Ehlers also
noted that the claimant work[ed] out three to four times per week and was
swimming 40 laps in the pool and doing Zumba” and “[l]ater treatment notes also
noted that the claimant exercise[ed] four days per week [including] swimming 1/2
mile, engaging in Zumba, and walking.” [Id.] The ALJ additionally reasoned that
Dr. Ehlers’ opinion was inconsistent with his findings because he “noted that the
claimant’s mental impairment symptoms were not adequately controlled, yet his
treatment notes specifically indicated that the claimant reported no complaints
from depressed mood and was ‘generally upbeat.’” [AR 23]
Dr. Ehlers’ medical treatment notes span three years and occur every few
months, in addition to phone conversations. [AR 436] In July and September 2013,
Dr. Ehlers first noted fatigue and elevated blood pressure. [AR 374–78] In
December 2013, Dr. Ehlers noted Plaintiff’s diagnoses of breast cancer and diabetes
mellitus, and also noted “somewhat less physical activity during the postop period

10

of time.” [AR 371–72] Plaintiff returned a week later after the “sudden exacerbation
of her type 2 [diabetes].” [AR 369]
Following meetings with a care manager concerning her diabetes, Dr. Elhers’
wrote that Plaintiff was tired, but was beginning to feel normal with reasonable
energy and began to swim again “for the first time in a couple of months.” [AR 365–
67] In March 2014, Dr. Elhers wrote that Plaintiff’s energy level was improving and
that she was exercising regularly, adding Zumba to her swimming sessions. [AR
361]
In June 2014, Plaintiff reported that she was exercising five times per week,
although her stamina was not as good as she would have liked. [AR 359] Dr. Ehler
encouraged Plaintiff to “keep up the excellent work” regarding diet, exercise, and
blood sugar control. [AR 360] He asked Plaintiff to “[k]eep thinking about whether
your lack of stamina is more physical or possibly related to the life changing events
you have had to deal with.” [Id.] In an August 2014 follow up regarding Plaintiff’s
diabetes, she noted she was feeling “pretty good,” but there were issues with her
blood sugar levels and blood pressure. [AR 353] A few months later, Plaintiff stated
that she was not sleeping well because of a cough and was not doing particularly
well due to the lack of sleep. [AR 349] She was in part assessed with fatigue at that
time. [AR 350]
In December 2014, Dr. Elhers wrote that Plaintiff had more energy, was
sleeping better, and was “[e]xercising regularly and tolerating it well.” [AR 346] In
March 2015, Dr. Ehlers noted that Plaintiff got tired more often and ran out of

11

energy at times, and associated being tired with fluctuating blood sugars. [AR 443]
Dr. Ehlers wrote that Plaintiff worked out three to four times per week, although
was swimming less than usual due to boredom. [AR 443] She was again assessed
with fatigue and did not think she had the energy to complete a full day of work as
she required frequent rest periods throughout the day. [AR 443–44]
In June 2015, Dr. Ehlers again noted blood sugar fluctuations and that
Plaintiff was “losing steam later in the day.” [AR 440] He wrote that “fatigue and
lack of stamina [were] her major issues.” [Id.] The same day, Dr. Ehlers completed a
medical source statement. [AR 436–39] Dr. Ehlers noted that Plaintiff would need
unscheduled breaks of 15 minutes every hour, caused by chronic fatigue and
“extreme fluctuations in blood sugar.” [AR 437] He noted that in a competitive work
environment, Plaintiff could walk one-and-a-half city blocks without rest, could sit
for a maximum of an hour at a time and could stand for ten minutes at a time. [AR
436–37] Dr. Ehlers checked boxes indicating that in an eight-hour workday,
Plaintiff could sit for less than two hours total and stand or walk for less than two
hours total. [AR 437.] He additionally checked a box indicating that Plaintiff needed
a job that permitted shifting positions at will from sitting, standing, or walking.
[Id.] Dr. Ehlers checked boxes indicating that Plaintiff would likely need to be “offtask” for 25% or more of the day and would be incapable of “even ‘low stress’ work”
because of blood sugar fluctuations exacerbated by stress. [AR 438–39]
A year later in June 2016, Plaintiff stated she felt “less unwell” and Dr.
Ehlers noted that she exercised and worked two afternoons per week and was trying

12

to “husband her energy.” [AR 552] In August 2016, Dr. Ehlers noted Plaintiff was
generally upbeat and feeling “pretty good.” [AR 549]
In her oral hearing, which took place a few months after Dr. Ehlers last
treatment note in the record, Plaintiff spoke to her exercise activity, explaining that
in a typical day
I get up and I will walk my dog around the block, she has to wait for
me. And then a couple of times a week I’ll exercise but I do exercise -- I
used to swim four to five times a week but I don’t have the stamina.
But I’ll do an exercise class because I can manage that, I don’t have to
go as intensely as the teacher. And then really the truth is I lay low, I
lay on my bed and I read and watch TV unless I have a doctor’s
appointment and that’s, really that’s the truth, that’s what I do.
[AR 45]
Concerning fatigue generally, Plaintiff noted that her neighbors help with her
yard work and she hired someone for housework because she could not do it. [AR
46] She added she can only do one errand in a day. [Id.] She noted that she had to
cease a part-time—four hours two days a week—caretaker job because the client
wanted someone full time, but she was fatigued and could not do it. [AR 44]
She explained that she volunteered as a para-chaplain and visited an elderly
client one time per week, which she could do because she would “just sit there and
talk.” [AR 45] However, she said that it was very hard for to do two tasks in a day
because “her blood sugar [went] crazy.” [Id.] She stated that she would “lay low a
lot,” meaning she would lay on her bed reading or watching TV and did not talk to
anybody or answer the phone because it was too much energy for her. [AR 49]
Plaintiff explained that she went on two trips by plane, but had trouble because she
was exhausted. [50–51] Finally, Plaintiff told the ALJ that she was taking a
13

religious studies class for one hours and fifteen minutes per week, but could not do
“Mondays at 5:00” because it was too late for her. [AR 51]
I find that substantial evidence does not support a legitimate reason for
discounting Dr. Ehlers’ opinion. The ALJ stated that Dr. Ehlers opinions were not
supported by the evidence, including his own treatment notes, but that is not the
case. The ALJ does not provide reasoning why he discards Dr. Ehlers’ opinion that
Plaintiff would need to be off-task 25% or more of the workday, that she would need
to have hourly breaks of 15 minutes each, and that she was incapable of even “low
stress” work. The fact that Plaintiff was attempting to exercise, at times extensively
and at other times less so, does not mean conclusively that Dr. Ehlers’ opinions on
the above issues should be summarily disregarded without explanation.
This is not akin to Simmons v. Colvin, where the court found the ALJ
provided sufficient reasoning for discounting a treating physician’s controlling
weight because the physician’s “impairment ratings on the forms were far more
extreme than his own treatment notes would suggest.” 635 F. App’x 512, 515 (10th
Cir. 2015) (unpublished). For example, the treating physician’s opinion in Simmons
that the plaintiff “could never rotate his neck to the left or right is contradicted by
notes that reflect a fairly normal range of motion” and he suggested that the
plaintiff “might want to consider different work” given the heavy physical demands
of his job, but then later cleared the plaintiff to work as a commercial driver. Id. at
515–16, n.4.
Those sort of inherent contradictions do not exist in the case at hand. If the

14

ALJ was to not give controlling weight to Dr. Ehlers’ opinion, he must give
legitimate reasons for doing so. The ALJ must also reevaluate if the medical records
as a whole support Dr. Ehler’s opinion that Plaintiff would need to be off-task 25%
or more of the workday, that she would need to have hourly breaks of 15 minutes
each, and that she was incapable of even “low stress” work.

2. Ms. Evans’ Opinion
Plaintiff argues that the ALJ’s “complete rejection” of Ms. Evans’ opinions
was reversible error because it violated SSR 06-03p, 2006 WL 2329939 (Aug 9,
2006) (“SSR 06-03p”). ECF No. 16 at 24. Plaintiff claims alternatively that: (1) Ms.
Evans’ opinions are deserving of controlling weight even though she is not an
acceptable medical source; or (2) they should merely outweigh an opinion of an
acceptable medical source if Ms. Evans’ opinions are better supported. ECF Nos. 16
at 23–24 and 20 at 7. She reasons that the ALJ did not correctly follow SSR 06-03p
because he found summarily that Ms. Evans’ opinions were not adequately
supported by “objective clinical findings and other evidence.” ECF No. 16 at 24.
Defendant argues that only treating sources’ opinions may be given
controlling weight. ECF No. 17 at 16. Defendant continues that if Plaintiff is
arguing the ALJ should have given merely greater weight to Ms. Evans, that it was
sufficient for the ALJ to find that her opinions were “not supported by objective
clinical findings and [were] otherwise inconsistent with the medical and other
evidence of record and [gave] specific examples in support of that finding.” Id.
As a therapist, Ms. Evans is considered an “other source,” specifically a

15

nonmedical source. SSR 06-03p, at *2. An ALJ “generally should explain the weight
given to opinions from these ‘other sources,’ or otherwise ensure that the discussion
of the evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the adjudicator’s reasoning, when such opinions may have an
effect on the outcome of the case.” Id. at *6. Only medical opinions that are
considered treating sources may be given controlling weight. 20 C.F.R. §
404.1527(a), (c)(2). However, “[d]epending on the particular facts in a case, and after
applying the factors for weighing opinion evidence, an opinion from a . . .
nonmedical source may outweigh the medical opinion of an acceptable medical
source . . . .” Id. at § 404.1527(f)(1). Essentially, this argument hinges upon whether
a subsequent reviewer could follow the ALJ’s reasoning about the weight given to
Ms. Evans, and as such I must review her treatment notes and other related
findings in the record.
Ms. Evans first saw Plaintiff in April 2016. [AR 621] Ms. Evans found that
Plaintiff “had a complicated adjustment to life with cancer and now is having a maladaptive adjustment to life post cancer. Client’s anxiety and depressive symptoms
are keeping her from living the life she wants to live socially, physically, and
spiritually.” [Id.] Plaintiff generally showed improvement over the next few
sessions, but in June 2016 Plaintiff stated she was trying to establish a “new
normal” and that she was “fatigued all the time.” [AR 624–26] Plaintiff reported
“extreme fatigue” that led her to feeling lonely. [AR 627] Plaintiff was concerned
about not having the energy to spend time with visiting family or “[do] much for

16

very long.” [Id.] The progress notes in July and August showed Plaintiff consistently
tired and fatigued with the final treatment note merely reading that Plaintiff was
“feeling weak and sick today. She had a hard time getting out of the house.” [AR
628–31]
On September 29, 2016 Ms. Evans completed a mental impairment
questionnaire. [AR 613–18] Ms. Evans observed Plaintiff “as having anxiety
resistant to treatment. She experiences panic attacks, spontaneous bouts of crying,
hopelessness, sadness, and difficulties with sustaining good stamina.” [AR 613] As a
prognosis, Ms. Evans wrote that Plaintiff “may be able to manage further decline
but it unlikely to be in a normal level of functioning either occupationally or
personally.” [Id.] Ms. Evans checked boxes noting that Plaintiff would be at least
seriously limited in a variety of mental abilities and aptitudes needed to do skilled,
semiskilled, and unskilled work. [AR 615–16] Ms. Evans justified this by pointing to
both Plaintiff’s reports and Ms. Evans’ personal observations and interactions with
Plaintiff in therapy. [Id.] Ms. Evans checked a box indicating that Plaintiff would
likely be absent from work more than four days per month. [AR 618]
There are other findings in the record concerning Plaintiff’s mental state. In
June 2014, Dr. Ehlers noted that Plaintiff was prescribed medication and briefed on
potential depression symptoms. [AR 359] Through June of 2015, Dr. Ehlers does not
note serious mental concerns, although Plaintiff was prescribed Lorazepam for
anxiety. [AR 346–379, 440–45] In his medical source statement, Dr. Ehlers noted
that Plaintiff had depression and anxiety, but wrote in that both were adequately

17

treated. [AR 436] In a June 2016 appointment, Plaintiff was noted to be tearful
discussing her sister’s illness, but in August 2016 Dr. Ehlers noted that Plaintiff
was stable on her depression medication and was “generally upbeat.” [AR 550]
Finally, in April 2016 appointment, Plaintiff’s endocrinologist noted that she
was “agitated anxious and tearful.” [AR 605]
In the ALJ’s decision, he reasoned that Dr. Ehlers mental status testing
showed “fairly normal mental examination[s] based on situation stressors such as
the cancer diagnosis of her sister.” [AR 24] The ALJ continued that Plaintiff “was
noted to be active socially by attending fitness classes, hosting a party, and
spending time with her son celebrating his graduation. The undersigned further
notes Ms. Evans’s treating history with the claimant was also recent in nature and
based in part on the claimant’s subjective report of symptoms and not a longitudinal
medical history.” [Id.]
While the ALJ’s reasoning concerning Dr. Ehlers’ notes appears valid, his
further reasoning does not. For example, where Ms. Evans noted that Plaintiff
“went to a wedding on Saturday [and] reports working out on Mondays” she further
wrote that Plaintiff reported “she was still unavailable to her friends and conserves
her energy for the activities she needs to survive.” [AR 626] Concerning when
Plaintiff spent time with her son celebrating his graduation, the progress note read
her “son will be visiting this coming week and she is concerned because she is
unsure if she will have the energy to host a party she agreed to have at her house.
She is afraid that she will be too weak or sick to enjoy having the family come over.”

18

[AR 627] As discussed supra regarding Dr. Ehlers, Plaintiff’s attempt at exercise
was noted to be a struggle at times and the ALJ does not explain why this would

per se discount the weight given to certain opinions.
Finally, Ms. Evans noted in her mental impairment questionnaire that her
opinions were formulated by Plaintiff’s reports and Ms. Evans’ personal
observations and interactions with Plaintiff in therapy. [AR 615–16] The ALJ
discussed Plaintiff’s exhaustion regarding some of the events, but failed to
sufficiently justify how those claims of exhaustion invalidate Ms. Evans’ opinions.
As such, I could not sufficiently follow the ALJ’s reasoning and substantial
evidence did not justify the ALJ’s weight given to Ms. Evans’ opinions. The ALJ
must reevaluate the weight given to Ms. Evans’ opinions following the factors
referenced in SSR 06-03p.

3. Dr. Frommelt’s Opinion
Plaintiff argues that substantial evidence did not support the ALJ’s decision
to give “great weight” to the opinion of Dr. Frommelt—the state agency examiner
concerning mental health. ECF No. 16 at 23. Plaintiff explains that Dr. Frommelt
reviewed an incomplete treatment record because none of the records of Ms. Evans
were included in Dr. Frommelt’s review (Plaintiff began to see Ms. Evans after Dr.
Frommelt’s review). Id. Since these records were not reviewed by Dr. Frommelt,
Plaintiff argues that Dr. Frommelt’s opinion necessarily could not be based on
substantial evidence, and thus neither could the ALJ’s decision to give Dr.
Frommelt’s opinions great weight. Id. Plaintiff argues that the un-reviewed records

19

establish that Plaintiff “had observable signs including appearing underweight,
appearing to be sick, tired, [and] emotionally worn out.” Id.
Defendant summarily responds to this by arguing that an ALJ may rely upon
opinions of non-treating examiners if the ALJ explains the weight given to the
opinion along with sufficient explanation for the weight. ECF No. 17 at 15.
The ALJ explained that
[a]lthough Dr. Frommelt was a non-examining medical consultant, and
therefore her opinions do not as a general matter deserve as much
weight as those of examining and treating physicians, her opinions do
deserve great weight, particularly in a case like this in which there
exists a number of other reasons, such as the lack of any significant
longitudinal treatment history of mental impairments, to reach a
similar conclusion.
[AR 23]
Plaintiff does not cite law regarding whether a non-treating consultant’s
opinion on mental health may constitute substantial evidence if the consultant does
not review mental health records. However, as explained supra, I am remanding
this case in part for the ALJ to reevaluate Ms. Evans’ opinions. As such, the ALJ
should similarly reevaluate Dr. Frommelt’s opinion because a change in the weight
of Ms. Evans’ opinions would affect the reasoning the ALJ used to assign weight to
Dr. Frommelt’s opinions. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we will
give to that medical opinion”).
C. The ALJ’s weighing of Plaintiff’s mental health impairments when
formulating his RFC
Plaintiff argues that the ALJ did not include certain mental impairments
20

into his formulation of Plaintiff’s RFC. ECF No. 16 at 25–27. Plaintiff states that
the ALJ gave Dr. Frommelt’s opinion great weight and that Dr. Frommelt opined
that Plaintiff would have mild difficulties with concentration, persistence, or pace.

Id. at 25–26. Plaintiff reasons that the ALJ did not include these difficulties in
Plaintiff’s RFC and if he did, it would affect the level of skilled work Plaintiff could
potentially perform. Id. at 26. Plaintiff requests a remand to include these
limitations into her RFC “and an assessment of how they affect her ability to
concentrate, persist, and maintain pace in a highly skilled job.” Id. at 27.
Defendant counters by arguing that the ALJ followed proper procedure by
finding that Plaintiff’s mental impairments were not severe, further evaluated the
evidence, and eventually found that Plaintiff should not have an RFC limiting her
to unskilled work. ECF No. 17 at 17. Further, Defendant argues that a finding of
mild limitation in concentration, persistence or pace does not necessarily lead to a
functional limitation in an RFC. Id. at 19.
The ALJ determines a claimant’s mental impairments using a “special
technique” regulated by 20 C.F.R. § 404.1520a. During step two of the five-step
analysis, the special technique is used to determine whether a mental impairment
is “severe” or “not severe.” Id. at § 404.1520(d). Even if a mental impairment is not
considered severe, the ALJ must further discuss the impairments when formulating
the RFC in step four. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (citing
SSR 96-8p at *4). “Finally, and most importantly, the ALJ’s RFC assessment must
include a narrative discussion describing how the evidence supports each

21

conclusion, citing specific medical facts and nonmedical evidence.” Id. (quoting SSR
96-8p at *7) (alterations and quotations omitted).
Here, the reasoning the ALJ used in determining Plaintiff’s RFC was based
on his evaluation, in part, of Ms. Evans’ and Dr. Frommelt’s opinions. [AR 23–24]
Since I have remanded this case for a reevaluation of those opinions, the ALJ must
also reevaluate whether Plaintiff should be limited to unskilled work.
D. The ALJ’s determination of Plaintiff’s credibility
Plaintiff argues that the ALJ did not follow applicable SSA guidelines
regarding Plaintiff’s subjective statements. ECF No. 16 at 27. Namely, Plaintiff
argues that the ALJ was flawed in his reliance on a perceived discrepancy between
Plaintiff’s statements concerning her conditions compared to her exercise regimen.

Id. at 27–28. Plaintiff points to the ALJ’s reliance on other activities, including
travel, family events, and work as a caretaker to argue that the ALJ improperly
finds inconsistency with her actions and statements. Id. at 28.
Credibility determinations are particularly suited to the finder of fact and
must be supported by substantial evidence. Wilson v. Astrue, 602 F.3d 1136, 1144
(10th Cir. 2010). The ALJ must consider a variety of factors in determining
credibility, including: “claimant’s daily activities; attempts to find relief; the type,
effectiveness and side effects of medication; and factors that precipitate and
aggravate the symptoms.” Watts v. Berryhill, 705 F. App’x 759, 763 (10th Cir. 2017)
(unpublished) (citing Hamlin v. Barnhart, 365 F.3d at 1220).
“An ALJ must do more than merely recite the relevant factors, but must give
reasons for the findings linked to the evidence.” Id. The findings must be closely
22

linked to substantial evidence, but it is not required that the ALJ perform a factorby-factor recitation of the evidence. Id. (citing cases).
Here, the ALJ spent considerable time writing on Plaintiff’s subjective
statements. [AR 19–22] Ultimately, he found that Plaintiff’s “reported activities
could not be performed if [Plaintiff’s] physical limitations were as significant as she
alleged and that the discrepancies in [Plaintiff’s] testimony and the evidence of
record diminish the persuasiveness of [her] subjective complaints and alleged
limitations.” [AR 22]
Since I have remanded for the ALJ to reconsider the weight given to certain
opinions, how Plaintiff’s subjective comments align with objective evidence in the
record may change. See SSR 16-3p, 2016 WL 1119029, at *6 (Mar. 16, 2016) (“[SSA]
will consider an individual’s statements about the intensity, persistence, and
limiting effects of symptoms, and [] will evaluate whether the statements are
consistent with objective medical evidence and the other evidence.”). Thus, the ALJ
must reevaluate how he weighed Plaintiff’s subjective comments.
The mere fact that Plaintiff was attempting to exercise should not ipso facto
justify an inconsistency between Plaintiff’s issues with fatigue and her act of
exercise. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[D]isability
claimants should not be penalized for attempting to lead normal lives in the face of
their limitations.”) (citing cases).
E. The ALJ’s rejection of a statement from a third-party witness
Plaintiff disputes the reasoning used by the ALJ to assign “some weight” to
the statement of Plaintiff’s neighbor Catherine S. Hubka. ECF No. 16 at 29–30.
23

Plaintiff explains that the ALJ violated SSA regulations in his reasoning for
assigning “some weight” on the fact that Ms. Hubka lacked medical training. Id.
Plaintiff also argues that there was no evidence to support the ALJ’s finding that
Ms. Hubka was “discolored by affection.” Id.
Defendant argues that the ALJ provided sufficient reasoning and even if he
had not discussed Ms. Hubka’s opinion there would no error because her opinion
would not have substantially affected the outcome of the case. ECF No. 17 at 22,
n.4.
Ms. Hubka is considered an “other non-medical source” whose opinion is
analyzed under SSR 06-03p, discussed supra concerning Ms. Evans. An ALJ need
not expressly mention SSR 06–03p, nor the factors articulated therein and must
merely “consider” an opinion from an “other source.” Conger v. Astrue, 453 F. App’x
821, 825 (10th Cir. 2011) (unpublished) (citing Doyal v. Barnhart, 331 F.3d at 764);

see Carr v. Comm’r, SSA, No. 17-7077, 2018 WL 2410879, at *3 (10th Cir. May 29,
2018) (holding that the ALJ was not obligated to weigh statements that “were not
‘opinions concerning [claimant’s] symptoms, diagnosis and prognosis, what she can
still do despite the impairments, or her physical and mental restrictions.’”
(alteration in original)).
In this case, the ALJ did not explicitly invoke SSR 06-03p, but he did mention
that he “considered reports regarding the claimant’s functionality provided by thirdparty sources.” [AR 24] Under SSR 06-03p, there are a variety of factors to evaluate
opinions from “other sources.” SSR 06-03p, at *4–5. The final of these is a catchall

24

provision reading that the evaluation may be based on “any other factors that tend
to support or detract from the opinion.” Id. at 5.
The first reason the ALJ’s gave in support of his assigned weight to Ms.
Hubka’s opinion is that she was not medically trained and thus her conclusions
would be questionable “as to dates, frequencies, types, and degrees of medical signs
and symptoms, or the frequency or intensity of unusual moods or mannerisms.” [AR
24] However, Ms. Hubka is per se not medically-trained, as she is considered an
“other non-medical source.” Without the ALJ noting, even generally, which part of
Ms. Hubka’s opinion contained a medical observation, I cannot know if it is
sufficiently justified.
Next, the ALJ stated that “by virtue of the relationship with the claimant,”
Ms. Hubka “cannot be considered a disinterested third party witness.” [AR 24]
Finally, the ALJ posited that the statements did “not evidence greater limitations
that [sic] those already indicated.” [Id.] These two reasons provided a connection
between the ALJ’s reasoning and the applicable regulations as they showed that the
ALJ considered the opinion.
As such, the ALJ’s reasoning regarding Ms. Hubka’s statement complies with
the applicable regulations and laws.
V.

CONCLUSION

For the above reasons, SSA’s decision is REVERSED, and this case is
REMANDED for proceedings consistent with this opinion.
The ALJ must reformulate Plaintiff’s RFC by: (1) reconsidering whether to

25

give controlling weight to Dr. Ehlers’ opinion and reevaluating if the medical
records as a whole support Dr. Ehler’s opinion that Plaintiff would need to be offtask 25% or more of the workday, that she would need to have hourly breaks of 15
minutes each, and that she was incapable of even “low stress” work; (2) reevaluate
the weight given to Ms. Evans’ opinions following the factors presented in SSR 0603p; and (3) reevaluate Dr. Frommelt’s opinions. The ALJ must also reevaluate
whether Plaintiff should be limited to unskilled work. Finally, the ALJ must
reweigh Plaintiff’s credibility pursuant to this Order.

Dated: August 22, 2018, in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

26