Pacheco v. Social Security Administration

Filing 33

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 23 Plaintiff's Motion to Remand or Reverse (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHELE LEE PACHECO,
Plaintiff,
v.

No. 16-cv-0062 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Remand or Reverse
[Doc. 23] and her Brief in Support [Doc. 24] (collectively, “Motion”), filed on July 29, 2016.
The Commissioner responded on October 26, 2016.

[Doc. 28].

Plaintiff replied on

November 21, 2016. [Doc. 31]. The parties have consented to the undersigned’s entering final
judgment in this case. [Doc. 16]. Having meticulously reviewed the entire record and being
fully advised in the premises, the Court finds that Plaintiff fails to meet her burden as the movant
to show that the Administrative Law Judge’s (“ALJ”) decision did not apply the correct legal
standards or was not supported by substantial evidence. Accordingly, the Motion will be denied
and the Commissioner’s final decision affirmed.
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec’y of
Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)). If substantial evidence
supports the Commissioner’s findings and the correct legal standards were applied, the
Commissioner’s decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously
review the entire record but should neither re-weigh the evidence nor substitute its judgment for
that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal,
331 F.3d at 760. The decision “is not based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373
F.3d at 1118; Hamlin, 365 F.3d at 1214. While a court may not re-weigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the [Commissioner]’s findings in order to determine if the substantiality
test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility
of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

2

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, 20 C.F.R. §§ 404.981, 416.1481. This case fits the general framework, and therefore, the Court reviews
the ALJ’s decision as the Commissioner’s final decision.

2

“The failure to apply the correct legal standard or to provide this court with a sufficient
basis to determine that appropriate legal principles have been followed is grounds for reversal.”
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).
Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
In light of this definition for disability, a five-step sequential evaluation process has been
established for evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert,
482 U.S. 137, 140 (1987). At the first four steps of the sequential process, the claimant has the
burden to show that: (1) she is not engaged in “substantial gainful activity”; and (2) she has a
“severe medically determinable . . . impairment . . . or a combination of impairments” that has
lasted or is expected to last for at least one year; and either (3) her impairment(s) either meet or
equal one of the “Listings”3 of presumptively disabling impairments; or (4) she is unable to
perform her “past relevant work.”

20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv);

Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts
to the Commissioner to show that the claimant is able to perform other work in the national

3

20 C.F.R. pt. 404, subpt. P, app. 1.

3

economy, considering her residual functional capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
Procedural Background
Plaintiff applied for a period of disability, disability insurance benefits, and supplemental
security income on May 27, 2009. Tr. 18. She alleged a disability-onset date of November 5,
2008. Id. Her claims were denied initially, on reconsideration, and by an ALJ. Id. The Appeals
Council denied review, and Plaintiff appealed to this Court. Presiding by consent, the Honorable
Gregory B. Wormuth, United States Magistrate Judge, granted Plaintiff’s motion to reverse the
ALJ’s decision and remand the matter to the Commissioner. Tr. 529–51; Pacheco v. Colvin,
No. 13-cv-0848 GBW (D.N.M. Oct. 6, 2014) (unpublished).
Judge Wormuth held that remand was warranted because the ALJ had failed to apply the
correct legal standards in evaluating the reports from Plaintiff’s treating psychiatrist, Margaret
Conolly, M.D. In particular, Dr. Connolly had assed Plaintiff’s global assessment of functioning
(“GAF”) scores at 45 and 35,4 in 2008 and 2011, respectively. Tr. 330, 440. The ALJ had not
even mentioned Dr. Conolly’s treatment records at all, much less the GAF scores.

The

Commissioner argued that there was no error in the ALJ’s failure to discuss the GAF scores.

4

A GAF score is a clinician’s determination on a scale of 1 to 100 of an individual’s overall level of functioning.
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2010). A GAF score of
41–50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id.
(emphases in original). A GAF score of 31–40 indicates “[s]ome impairment in reality testing or communication
(e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).” Id.
(emphases in original).

4

Judge Wormuth disagreed. He found that the GAF scores were significantly probative, and thus,
it was reversible error for the ALJ not to address them. Tr. 544–49.
Judge Wormuth also found that the ALJ had failed to apply the correct legal standard in
evaluating the consultative opinion of Martin Trujillo, M.D.

Tr. 549–50; see Tr. 351–53

(Dr. Trujillo’s report). Dr. Trujillo had concluded, inter alia, that Plaintiff was “a poor candidate
for routine employment, although should do well returning to school.” Tr. 353. The ALJ
assigned limited weight to Dr. Trujillo’s opinion because, the ALJ figured, “if she can return to
school, she ought to be able to return to sedentary work.” Tr. 25. Judge Wormuth found error
because, in rejecting Dr. Trujillo’s opinion, the ALJ had relied on her own speculation instead of
applying the six applicable regulatory factors. Tr. 549 (citing Social Security Ruling (“SSR”)
96-5p; 20 C.F.R. §§ 404.1527, 416.927).

Judge Wormuth remanded the case to the

Commissioner for further proceedings consistent with his opinion.
Pursuant to Judge Wormuth’s remand order, the Appeals Council vacated the decision of
the first ALJ. Tr. 554–55. Because Plaintiff had filed subsequent claims for benefits, the
Appeals Council ordered a new ALJ to consolidate the new claims with the ones remanded by
Judge Wormuth. The new ALJ was to create a new, single administrative record and issue a new
decision on the consolidated claims. Tr. 554; Tr. 476 (second ALJ’s discussion of the procedural
posture).
ALJ Deborah Rose held a second hearing on August 4, 2015. Tr. 473. Plaintiff appeared
with her attorney. Tr. 447, 475. The ALJ heard testimony from Plaintiff and an impartial
vocational expert (“VE”), Mary Diane Weber. Tr. 447, 478–97.
5

The ALJ issued her unfavorable decision on October 28, 2015. Tr. 466. She found that
Plaintiff met the insured status requirements for disability insurance benefits through
December 31, 2013. Tr. 450. At step one, she found that Plaintiff had not engaged in substantial
gainful activity since November 5, 2008, the onset date of her alleged disability. Id. Because
Plaintiff had not engaged in substantial gainful activity for at least 12 months, the ALJ proceeded
to step two. Id. There, she found that Plaintiff suffered from the following severe impairments:
“fibromyalgia, degenerative joint disease, obesity, bipolar disorder, panic disorder, and
posttraumatic stress disorder[.]” Id. The ALJ further found that Plaintiff’s sleep apnea and
hypertension were not severe.

Id.

At step three, the ALJ found that none of Plaintiff’s

impairments, alone or in combination, met or medically equaled a Listing. Tr. 450–53.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC.

Tr. 453–64. In doing so, the ALJ essentially rejected the

opinions of Plaintiff’s treating physician, Gilbert Aragon, D.O., and treating physician’s assistant
(“PA”), Lisa Wentling, PA-C.

Tr. 460–62 (ALJ’s rejection of Dr. Aragon’s opinion), 442

(Dr. Aragon’s opinion), 462–63 (ALJ’s rejection of PA Wentling’s opinion), 841–44 (PA
Wentling’s opinion).

Instead, the ALJ accorded “significant weight” to the opinions of

non-examining physicians Janice Kando, M.D., and N.D. Nickerson, M.D. Tr. 463. Drs. Kando
and Nickerson had opined that Plaintiff could perform light work with some additional postural
and environmental limitations. See id. However, to accommodate Plaintiff’s combination of
impairments (including fibromyalgia, degenerative join disease, and obesity), the ALJ found that

6

Plaintiff could only perform a limited range of sedentary work. Tr. 463 (ALJ’s discussion of
Dr. Kando and Dr. Nickerson’s opinions), 453 (ALJ’s RFC assessment).
In further assessing Plaintiff’s RFC, the ALJ considered the GAF scores assessed by
Plaintiff’s treating psychiatrist, Margaret Conolly, M.D. However, she found them to be “of
limited evidentiary value” because she (the ALJ) believed GAF scores in general to be unreliable
indicators of a claimant’s ability to do work.

Tr. 463–64.

Further, the ALJ found that

Dr. Conolly’s GAF scores reflected “economic and environmental factors that [were] not
intrinsic components of [Plaintiff’s] mental functioning with respect to the ability to perform . . .
simple, unskilled work.” Tr. 464.

The ALJ found that the low GAF scores assessed by

Dr. Conolly reflected Plaintiff’s “lack of employment, unresolved grief issues, and homelessness
. . . which are not necessarily factors in the disability evaluation.” Tr. 463. The ALJ gave
significant weight to the non-examining opinion of Elizabeth Chiang, M.D., who opined that
Plaintiff should be restricted to simple work. Id. (ALJ’s evaluation of Dr. Chiang’s opinion); see
Tr. 412 (relevant portion of Dr. Chiang’s opinion).

However, to accommodate Plaintiff’s

combination of physical and mental impairments, including pain, the ALJ found that beyond a
restriction to simple work, Plaintiff could only have superficial and incidental contact with
coworkers and supervisors, and no interaction with the public. Tr. 463.
The ALJ found that:
[Plaintiff] has the [RFC] to perform a range of sedentary work as
defined in 20 [C.F.R. §§] 414.1547(a), 416.967(a). Specifically,
[Plaintiff] can occasionally lift, carry, push, and/or pull 10 pounds,
stand and/or walk (with normal breaks) for a total of about 2 hours
in an 8-hour workday, sit (with normal breaks) for a total of about
6 hours in an 8[-]hour workday. [Plaintiff] can occasionally climb,
7

balance, stoop, kneel, crouch, crawl, but never climb ladders,
ropes, or scaffolds or tolerate exposure to hazards. She can
understand and perform simple instructions, attend, and
concentrate for 2 hours with superficial and incidental contact with
coworkers and supervisors, but not public interaction.
Tr. 453. Based on this RFC and the testimony of the VE, the ALJ found at step four that
Plaintiff was unable to perform any past relevant work. Tr. 464. At step five, the ALJ found
that, based on Plaintiff’s RFC, age, education, and work experience and the testimony of the VE,
Plaintiff could perform work that exists in significant numbers in the national economy. Tr. 465.
Ultimately, the ALJ found that Plaintiff had not been under a disability, as defined by the Act,
during the relevant time period, and she denied the claims. Tr. 466. Plaintiff filed the instant
action on January 27, 2016, rather than requesting review by the Appeals Council, as permitted
by 20 C.F.R. §§ 404.984(d), 416.1484(d). [Doc. 1].
Analysis
Plaintiff makes numerous arguments attacking the second ALJ’s decision. The Court
finds that these arguments are either unpersuasive or inadequately developed for review. The
ALJ’s decision will be affirmed, and Plaintiff’s motion, denied.
Dr. Conolly’s GAF scores
Plaintiff makes several arguments that relate to Dr. Conolly’s GAF scores. First, she
argues that the ALJ’s rejection of the GAF scores contravened Judge Wormuth’s remand order.
[Doc. 24] at 15–18; [Doc. 31] at 4–5. The Court disagrees. Judge Wormuth did not order the
ALJ to accord the GAF scores any particular weight on remand. She was required only to

8

discuss them. She did so. The Court disagrees that her discussion violated Judge Wormuth’s
order.
Plaintiff also argues that the second ALJ was not allowed to raise any issue with the GAF
scores that was not raised by the first ALJ. [Doc. 24] at 16, 18, [Doc. 31] at 7–9. The Court is
not persuaded. The second ALJ was not bound or limited by the findings of the first ALJ. See
Poppa v. Astrue, 569 F.3d 1167, 1170–71 (10th Cir. 2009) (An ALJ’s decision is no longer
binding when it has been reversed by the Appeals Council or a federal court; a subsequent ALJ is
bound only by the Appeals Council or a federal court.).
Plaintiff also challenges the ALJ’s authority to question the reliability of GAF scores in
general. [Doc. 24] at 17–18; [Doc. 31] at 5–7. Although the Court agrees that the ALJ failed to
offer any authority for questioning the reliability of GAF scores in general, she did not err in
assigning them little weight in this case. She explained that they merited little weight because
they reflected Plaintiff’s lack of employment, unresolved grief issues, and homelessness, rather
than her mental functioning. These reasons are legally adequate and supported by substantial
evidence. There is no reversible error in the ALJ’s evaluation of Dr. Conolly’s GAF scores.
Dr. Trujillo’s Opinion
Plaintiff makes numerous arguments challenging the ALJ’s evaluation of Dr. Trujillo’s
opinion. Dr. Trujillo examined Plaintiff once at the request of the state agency. He opined that
Plaintiff was “limited in ambulation and physical stamina primarily related to her obesity.”
Tr. 353. He further stated that Plaintiff was “a poor candidate for routine employment, although
should do well returning to school.” Id. Otherwise he did not make any specific findings as to
9

the extent of her functional limitations. Id. The first ALJ rejected Dr. Trujillo’s opinion, not
based on anything in the record, but solely on the ALJ’s conclusory assumption that “if she can
return to school, she ought to be able to return to sedentary work.” Tr. 550. Judge Wormuth
remanded the case, in part, because he found that the first ALJ had failed to properly weigh
Dr. Trujillo’s opinion. Id.
The second ALJ discussed Dr. Trujillo’s opinion at greater length but, in the end,
accorded it little weight. Tr. 460. She explained that Dr. Trujillo had performed only a one-time
examination. She further explained that the medical evidence demonstrated that Plaintiff had
been receiving outpatient treatment primarily consisting of medication management. Id. The
ALJ also noted that Dr. Trujillo’s statement about Plaintiff’s being a poor candidate for routine
employment was not a “medical opinion” but, rather, an administrative finding. Id.
Plaintiff challenges the ALJ’s discussion of Dr. Trujillo’s opinion in numerous ways, but
none warrants remand. Dr. Trujillo’s statement that Plaintiff was not a good candidate for
routine employment is not a “medical opinion” such that it would require findings. Rather, it is
his opinion on an issue reserved to the Commissioner, i.e., whether Plaintiff is disabled.
§§ 404.1527(d), 416.927(d). Dr. Trujillo’s opinion that Plaintiff cannot work is entitled to no
weight. Id. However, the specific functional limitations assessed by Dr. Trujillo (that Plaintiff is
limited in ambulation and physical stamina) are medical opinions. Thus, the ALJ must either
incorporate them into the RFC or explain why they should be rejected. The Court finds that
Dr. Trujillo’s “medical opinion” is consistent with the RFC assessed by the ALJ. Accordingly,
the Court need not address Plaintiff’s challenges to the ALJ’s reasoning for saying that she
10

accorded the opinion little weight. As a practical matter, Dr. Trujillo’s assessment of Plaintiff’s
limitations are reflected in the RFC.
Standard for Treating Physician Opinions
Social Security regulations require that, in determining disability, the opinions of treating
physicians be given controlling weight when those opinions are well-supported by the medical
evidence and are consistent with the record. 20 C.F.R. § 404.1527(c)(2). This is known as the
“treating physician rule.” Langley, 373 F.3d at 1119. The idea is that a treating physician
provides a “unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such as consultative
examinations,” and therefore, a treating physician’s opinion merits controlling weight. Doyal,
331 F.3d at 762.
In order to receive controlling weight, treating physician opinions must be both supported
by medical evidence and consistent with the record.

If not, the opinions may not merit

controlling weight but still must be given deference and weighed using the following six factors:
(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.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003); see 20 C.F.R. § 404.1527(c).
However, not every factor is applicable in every case, nor should all six factors be seen as
11

absolutely necessary. What is absolutely necessary, though, is that the ALJ give good reasons—
reasons that are “sufficiently specific to [be] clear to any subsequent reviewers”—for the weight
she ultimately assigns to the opinions.

Langley, 373 F.3d at 1119; see 20 C.F.R.

§ 404.1527(c)(2); Branum v. Barnhart, 385 F.3d 1268, 1275 (10th Cir. 2004).
In sum, when properly rejecting a treating physician’s opinion, an ALJ must follow two
phases. First, the ALJ must find that the opinion is not supported by medical evidence and/or is
not consistent with the record. Second, the ALJ must still give deference to the opinion and
weigh it according to the factors listed above. Like all findings, an ALJ’s findings in these two
phases must be supported by substantial evidence.
Standards Regarding Fibromyalgia and Treating Physician Opinions
“Because proving the disease is difficult, fibromyalgia presents a conundrum for insurers
and courts evaluating disability claims.” Welch v. UNUM Life Ins. Co. of Am., 382 F.3d 1078,
1087 (10th Cir. 2004) (ellipsis and internal quotation marks omitted) (collecting cases); see also
Wilson, 602 F.3d at 1143 (recognizing that “complaints of severe pain that do not readily lend
themselves to analysis by objective medical tests are notoriously difficult to diagnose and treat”)
(collecting cases, including cases addressing fibromyalgia). “Since fibromyalgia only manifests
itself through clinical symptoms, there are no laboratory tests that can confirm the diagnosis.”
Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 627 n.1 (10th Cir. 2003).
Its cause or causes are unknown, there is no cure, and, of greatest
importance to disability law, its symptoms are entirely subjective.
There are no laboratory tests for the presence or severity of
fibromyalgia. The principal symptoms are “pain all over,” fatigue,
disturbed sleep, stiffness, and—the only symptom that
discriminates between it and other diseases of a rheumatic
12

character—multiple tender spots, more precisely 18 fixed locations
on the body (and the rule of thumb is that the patient must have at
least 11 of them to be diagnosed as having fibromyalgia) that when
pressed firmly cause the patient to flinch.
Gilbert v. Astrue, 231 F. App’x 778, 783 (10th Cir. 2007) (quoting Sarchet v. Chater, 78 F.3d
305, 306 (7th Cir. 1996)). Although the existence or severity of fibromyalgia may not be
determinable by objective medical tests, the Tenth Circuit Court of Appeals has suggested that
the physical limitations imposed by the condition’s symptoms can be objectively analyzed. E.g.,
Gilbertson, 328 F.3d at 627 n.1; Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 17 n.5
(1st Cir. 2003) (“While the diagnos[i]s of . . . fibromyalgia may not lend [it]sel[f] to objective
clinical findings, the physical limitations imposed by the symptoms . . . do lend themselves to
objective analysis.”).
When a treating physician opines as to the functional limitations resulting from
fibromyalgia, an ALJ may not reject that opinion solely based on a lack of objective supporting
evidence. For example, in Gilbert, the Tenth Circuit reversed an ALJ’s rejection of a treating
opinion (about the functional limitations resulting from fibromyalgia) when that rejection was
based on a lack of objective evidence and the ALJ had failed to address the non-objective
evidence that supported the treating opinion. 231 F. App’x at 783–84.
However, in Tarpley and Romero, the Tenth Circuit affirmed the ALJs’ rejections of the
treating opinions because the rejections were based on more than the absence of objective
support. In Tarpley, the ALJ found very little in the doctors’ notes supporting their assessed
functional levels. Instead, the ALJ found that evidence that seemed to contradict the doctors’
assessed limitations (e.g., the plaintiff had full range of motion in her joints, had normal strength,
13

walked and moved without much difficulty, had been able to care for her personal needs, did
household chores, went shopping, found relief with medication, and on her doctors’
recommendations, stayed active with friends and family). 601 F. App’x at 643. In Romero, the
ALJ did not rely on lack of objective medical evidence alone in rejecting the treating physician’s
opinion about the functional limitations of the plaintiff’s fibromyalgia, which would have been
error. 563 F. App’x at 621. Instead, the ALJ also relied on the plaintiff’s daily activities and that
she experienced relief with medication and exercise as prescribed by her doctor. Id. at 621–22.
Dr. Aragon’s Treating Opinion
Here, in rejecting Dr. Aragon’s opinion, the ALJ noted that Dr. Aragon had been treating
Plaintiff since 2012 on an outpatient basis, providing general care and medication management.
She also noted that his opinion was expressed on a one-page check-box questionnaire without
comment or explanation. Tr. 460–63. She further found that Dr. Aragon’s opinion was not
supported by his treatment records. Tr. 461 (finding that the treatment records did not evidence
“acute distress” and consisted mainly of Plaintiff’s subjective complaints of pain and tenderness
rather than physical examination results, which are minimal). The ALJ explained that because
Plaintiff herself was not fully credible, Dr. Aragon’s opinion was undercut by its general reliance
on her subjective complaints. Finally, she found that Dr. Aragon’s opinion was not supported by
certain portions of the report by one-time rheumatology consultant, Dr. Sanchez-Goettler. Id.
“The lack of objective test findings noted by the ALJ is not determinative of the severity
of [Plaintiff’s] fibromyalgia,” Gilbert, 231 F. App’x at 784, but the ALJ here did not rely solely
on the absence of objective medical evidence. The Court has considered Plaintiff’s arguments
14

on the matter. See [Doc. 24] at 36–37. She urges that the notes cited by the ALJ related to
Plaintiff’s finger joints are not relevant to fibromyalgia. Id. at 36 (citing SSR 12-02). The ALJ’s
discussion of Dr. Aragon’s opinion, however, contained many other details. The ALJ applied the
correct legal standards in weighing Dr. Aragon’s opinion. Considered together, the ALJ’s
reasons for rejecting his opinion satisfy the treating physician rule in the fibromyalgia context,
and her reasons are supported by substantial evidence of record. There is no reversible error.
PA Wentling’s Opinion
The ALJ found that PA Wentling’s opinion (as expressed in the Fibromyalgia
Questionnaire) was entitled to little weight.

Tr. 462–63 (ALJ’s findings), 841–44

(PA Wentling’s opinion). The ALJ explained that, even though PA Wentling had a treating
relationship with Plaintiff, she was not an acceptable medical source. Tr. 462. Additionally,
PA Wentling continued to prescribe opiates to Plaintiff even though Dr. Sanchez-Goettler had
explicitly recommended avoiding opiates. Id. The ALJ found that there was little to no evidence
of treatment beyond various psychotropic and narcotic medications, coupled with self-prescribed
marijuana. The ALJ further found that Plaintiff had failed to follow up on a referral to a
pain-management specialist. Tr. 463.
Although ALJs need not discuss every piece of evidence, they are required to discuss the
weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(c), 416.927(c)). ALJs are required to weigh
medical source opinions and to provide “appropriate explanations for accepting or rejecting such
opinions.” SSR 96-5, 1996 WL 374183, at *5 (emphasis added); see Keyes-Zachary, 695 F.3d
15

at 1161 (same) (citing 20 C.F.R. §§ 404.1527(c), 416.927(c); SSR 06-03p, 2006 SSR LEXIS 5,
at *10–11). For example, in weighing a medical opinion (regardless of its source), the ALJ must
consider the Watkins factors listed above. §§ 404.1527(c), 416.927(c).
The ALJ’s discussion of PA Wentling’s opinion is satisfactory and her findings are
supported by substantial evidence. The Court is not persuaded by Plaintiff’s arguments that the
ALJ impermissibly picked and chose from the opinion or should have assigned greater weight to
it. See [Doc. 24] at 24–26. There is no reversible error in the ALJ’s evaluation and weighing of
PA Wentling’s opinion.
Credibility
Plaintiff challenges the second ALJ’s credibility findings. [Doc. 24] at 26–36. The
district court may not re-weigh the evidence; it reviews an ALJ’s decision only to ensure that she
applied the correct legal standard and that her findings are supported by substantial evidence.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).

“Credibility determinations are

peculiarly the province of the finder of fact, and [courts] will not upset such determinations when
supported by substantial evidence.”

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(internal quotation marks omitted). Boilerplate language, however, is insufficient. Id. Instead,
“it is well settled that [ALJs] must give reasons for their decisions.” Reyes v. Bowen, 845 F.2d
242, 244 (10th Cir. 1988). Although ALJs do not have to discuss “every piece of evidence,”
Clifton, 79 F.3d at 1010, their “findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the guise of findings.” Kepler, 68 F.3d
at 391 (internal quotation marks and brackets omitted).
16

The Tenth Circuit Court of Appeals does not “reduce[] credibility evaluations to
formulaic expressions [nor] require a formalistic factor-by-factor recitation of the evidence. So
long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility, the dictates of Kepler are satisfied.” White v. Barnhart, 287 F.3d 903, 909 (10th Cir.
2001) (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)). Finally, where pain is the
subject of the credibility dispute, the ALJ should consider such factors as:
[1] the levels of medication and their effectiveness, [2] the
extensiveness of the attempts (medical or nonmedical) to obtain
relief, [3] the frequency of medical contacts, [4] the nature of daily
activities, [5] subjective measures of credibility that are peculiarly
within the judgment of the ALJ, [6] the motivation of and
relationship between the claimant and the other witnesses, and
[7] the consistency or compatibility of nonmedical testimony with
objective medical evidence.
Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993) (quoting Hargis v. Sullivan, 945
F.2d 1482, 1489 (10th Cir. 1991)).
The ALJ indicated that she had considered all of Plaintiff’s alleged symptoms, Tr. 453,
and then went on to describe those symptoms, Tr. 453–455. Ultimately, the ALJ found that
Plaintiff’s statements regarding the intensity, persistence, and limiting effects of the symptoms
were not credible to the extent that they were inconsistent with the RFC. Tr. 454. The ALJ then
elaborated on these findings.

The ALJ found that Plaintiff had failed to comply with

Dr. Sanchez-Goettler’s treatment recommendations for her fibromyalgia. Id. She found that
Plaintiff had done little to try to alleviate her pain other than use narcotics and marijuana, which
“may indicate secondary gain for her reports of chronic pain.” Id. She found that Plaintiff’s
subjective complaints were exaggerated “in light of the objective evidence,” evidence that she
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went on to describe in detail. Tr. 455–56. She found that Plaintiff had failed to follow up on a
referral to a pain specialist. Id. She found that Plaintiff had significant periods during which her
pain was manageable. Tr. 455.
Plaintiff argues that Dr. Aragon and PA Wentling (i.e., her treating providers) themselves
did not prescribe the treatment recommended by Dr. Sanchez-Goettler, and there was no
evidence that compliance would restore her ability to work. [Doc. 24] at 28. Therefore, she
argues that it was error for the ALJ to find that she failed to comply with her treatment and, thus,
was not entirely credible. Id. at 26–36.
In reviewing the impact of a claimant’s failure to undertake
treatment on a determination of disability, [courts] consider four
elements: (1) whether the treatment at issue would restore
claimant’s ability to work; (2) whether the treatment was
prescribed; (3) whether the treatment was refused; and, if so,
(4) whether the refusal was without justifiable excuse.
Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987). Here, the ALJ made no findings on whether
compliance with Dr. Sanchez-Goettler’s recommendations would restore Plaintiff’s ability to
work, nor did she discuss whether Plaintiff’s alleged refusal (to comply) was justified.
Nevertheless, the ALJ’s credibility findings are adequate, and remand is not warranted. Even
disregarding non-compliance with treatment, the ALJ’s credibility findings are still closely and
affirmatively linked to substantial evidence.
For example, the ALJ found that Plaintiff had done little to try to alleviate her pain other
than use narcotics and marijuana, which “may indicate secondary gain for her reports of chronic
pain.” Tr. 454. She found that Plaintiff’s subjective complaints were exaggerated “in light of
the objective evidence,” which she went on to describe in detail. Tr. 455–56. She found that
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Plaintiff had failed to follow up on a referral to a pain specialist. Id. She found that Plaintiff had
significant periods during which her pain was manageable. Tr. 455.
Plaintiff also challenges these other bases for the ALJ’s credibility findings. She argues
that she should not be faulted if she cannot afford treatment. [Doc. 24] at 29. However, she does
not develop the argument. In fact, she does not even indicate what treatment she cannot afford.
See id. Although the Court agrees with Plaintiff that, generally, a claimant’s credibility should
not be doubted solely because she cannot afford treatment, it is unclear how Plaintiff intends to
apply that general principle to this case.
Plaintiff suggests reasons why a reviewer might question Dr. Sanchez-Goettler’s
recommendations (e.g., the recommendations are not specific to Plaintiff but, instead, are a
regurgitation of “textbook practice recommendations”). Id. She cites to evidence that could
support her preferred credibility finding (e.g., her “copious” use of pain medications, even
marijuana, was always monitored by her providers; the “longitudinal” evidence is susceptible to
a finding that Plaintiff is entirely credible). Id. at 28–35. The Court has carefully considered
these arguments but finds them unpersuasive. At bottom, these arguments are an invitation to
re-weigh the evidence, which is beyond the authority of this Court. See, e.g., Langley, 373 F.3d
at 1118. There is no reversible error in the second ALJ’s credibility determination.
Third Party Statements
The Court is not persuaded by Plaintiff’s challenge to the ALJ’s evaluation of the third
party statements of her sister-in-law and mother. [Doc. 24] at 38. The ALJ expressly considered
the statements. Nothing more was required. See Social Security Ruling 06-03p, 2006 SSR
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LEXIS 5, *15–16 (“Although there is a distinction between what an adjudicator must consider
and what the adjudicator must explain in the disability determination or decision, the adjudicator
generally should explain the weight given to opinions from [third party lay witnesses] or
otherwise ensure that the discussion of the evidence . . . allows a . . . subsequent reviewer to
follow the adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.”) (emphases added). There is no reversible error in the ALJ’s evaluation of the third party
statements.
Burden of Proof at Step Five
Plaintiff argues that the ALJ erred in her statement of the burden at step five. [Doc. 24]
at 38–39. The Court is not persuaded that remand is warranted. Regardless of how the ALJ
described the burden at step five, she applied it correctly. The ALJ relied on the testimony of a
vocational expert—provided by the Commissioner—to find that Plaintiff could perform other
work that existed in significant numbers in the national economy. The Court fails to see any
error in the application of the step-five burden.
Other Alleged Errors
Plaintiff complains that the second ALJ found fewer severe impairments at step two than
the first ALJ found. [Doc. 24] at 37–38. She argues that second ALJ “removed” sleep apnea,
chronic obstructive pulmonary disease, and hypertension from the step-two impairments. Id.
However, the second ALJ was not bound by the findings of the first ALJ. See Poppa, 569 F.3d
at 1170–71 (An ALJ’s decision is no longer binding when it has been reversed by the Appeals
Council or a federal court; a subsequent ALJ is bound only by the higher body.).
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More

importantly though, “the failure to find a particular impairment severe at step two is not
reversible error when the ALJ finds that at least one other impairment is severe.” Allman v.
Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Here, the second ALJ found several severe
impairments at step two and proceeded through the sequential evaluation process.
Plaintiff also presents numerous factual arguments that could support weighing the
medical opinions in the record differently than did the second ALJ. See [Doc. 24] at 22–24 (e.g.,
the ALJ could have accorded more weight to Dr. Conolly and PA Wentling’s opinions
considering how long they had treated Plaintiff and with what frequency, and considering the
recency of their opinions compared to the recency of the non-examining opinions). The Court
understands the point. The record could support giving more weight to the treating opinions.
But that is not the standard for the instant motion to remand. This Court cannot re-weigh the
evidence. The standard here is whether the second ALJ applied the correct legal standards and
whether her findings are supported by substantial evidence. The Court finds that the second
ALJ’s decision passes muster.
Finally, Plaintiff alludes to—but fails to develop—several other arguments. As just one
example, Plaintiff argues that the second ALJ failed her duty of inquiry by not re-contacting her
treating providers “instead of relying on the inference and nuance noted above [in her brief].”
[Doc. 24] at 37.

Other than further describing the rules regarding development of the record,

Plaintiff fails to elaborate on the circumstances in her case that she believes triggered the ALJ’s
duty to re-contact her providers. The Court cannot speculate. This point—and there are several
others like it—is not sufficiently developed for review. Thus, the Court finds that any argument
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not explicitly addressed in this Memorandum Opinion and Order has been insufficiently
developed and is waived. See Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir. 2009) (An issue is
waived if not adequately supported by “developed argumentation.”) (internal quotation marks
omitted).
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Remand or Reverse [Doc. 23] is DENIED. The Commissioner’s final decision is
affirmed.
IT IS SO ORDERED.
______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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