Bilton v. Social Security Administration

Filing 36

ORDER by Magistrate Judge Gregory J. Fouratt granting 20 Motion to Remand. (kdj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
RICHARD LEROY BILTON,
Plaintiff,
v.

Civ. No. 16-109 GJF

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE AND REMAND
THIS MATTER is before the Court on Plaintiff Richard Leroy Bilton’s “Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum” (“Motion”) [ECF No. 20].
Having meticulously reviewed the entire record, considered the parties’ arguments, and being
otherwise fully advised, the Court concludes that the Administrative Law Judge did not weigh
medical evidence in accordance with the law. Therefore, and for the further reasons detailed
below, the Court will GRANT Plaintiff’s Motion.
I.

PROCEDURAL BACKGROUND
On June 4, 2010, Plaintiff applied for Title II disability insurance benefits and Title XVI

supplemental security income, alleging that his disability began on December 1, 1998.
Administrative R. (“AR”) 150-66. Plaintiff later changed his alleged onset date to May 21,
2010. AR 819. Plaintiff’s applications were initially denied on September 15, 2010 [AR 88-95],
and upon reconsideration on January 13, 2011. AR 101-104. Plaintiff then filed a written
request for a hearing and on August 24, 2011, Administrative Law Judge (“ALJ”) Augustus
Martin held a hearing in North Charleston, South Carolina. Plaintiff testified at the hearing and
was represented by attorney Jeff Yungman. The ALJ also heard testimony from Arthur Schmitt,
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an impartial vocational expert (“VE”). AR 43-76.
On September 21, 2011, the ALJ issued his decision, concluding that Plaintiff had not
been under a disability within the meaning of the Social Security Act (“the Act”) since the date
his application was filed. AR 25-37. Plaintiff requested the ALJ’s decision be reviewed by the
Appeals Council, and, on December 31, 2012, the Appeals Council denied his request for
review.

AR 1-7.

Consequently, the ALJ’s decision became the final decision of the

Commissioner.
Plaintiff timely appealed the Commissioner’s denial of benefits in the United States
District Court for the District of New Mexico on March 1, 2013. Bilton v. Social Security
Administration, No. 1:13-cv-201-LAM (D.N.M. May 9, 2014). The Court remanded the case
with instructions that the Appeals Council consider additional medical evidence that was
considered new, material, and related to the time period on or before the ALJ’s decision. See AR
704-20. Upon remand, Plaintiff then received another hearing (see AR 751-53) held on July 15,
2015 by ALJ Ann Farris in Albuquerque, New Mexico. Plaintiff testified at the hearing and was
represented by attorney Michael Armstrong. The ALJ also heard testimony from VE Thomas
Greiner. AR 614-53.
On October 16, 2015, ALJ Farris issued her decision, concluding that Plaintiff was not
disabled prior to November 4, 2014, but became disabled on that date and his disability
continued through the date of her decision. She further concluded that Plaintiff had not been
under a disability within the meaning of the Act at any time through March 31, 2011. AR 585604. Plaintiff did not request review from the Appeals Council, and consequently, the ALJ’s
decision became the final decision of the Commissioner.

Plaintiff timely appealed the

Commissioner’s decision to this Court on February 12, 2016. Pl.’s Compl., ECF No. 1.

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II.

APPLICABLE LAW
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision

becomes the final decision of the agency. 1 The Court’s review of that final agency decision is
both factual and legal. See 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)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”).
The factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 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). An ALJ’s 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.
Substantial evidence does not, however, require a preponderance of the evidence. See 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)).
“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) (citation omitted). “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
1

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2017); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).

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well as significantly probative evidence he rejects.” Id. at 1010. “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s findings
from being supported by substantial evidence.”

Lax, 489 F.3d at 1084.

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.
As for the review of the ALJ’s legal decisions, the Court examines “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2017).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App. 1.

If a claimant’s

impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to
the first of three phases of step four and determines the claimant’s RFC. See Winfrey, 92 F.3d at
1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the ALJ determines the physical and
mental demands of the claimant’s past relevant work, and in the third phase, compares the

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claimant’s RFC with the functional requirements of his past relevant work to determine if the
claimant is still capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§
404.1520(f), 416.920(f). If a claimant is not prevented from performing his past work, then he is
not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The claimant bears the burden of proof on
the question of disability for the first four steps, and then the burden of proof shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler,
814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to his past work, then the Commissioner bears the burden at
the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing
in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also
Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential
evaluation process in detail).
III.

SUMMARY OF ARGUMENTS
Plaintiff challenges only those parts of the ALJ’s decision that relate to the time period

between May 2010 and November 2014. Pl.’s Mot. 5. He argues that the ALJ committed
reversible legal error for three reasons: (i) the ALJ improperly evaluated medical opinion
evidence, including the opinions of treating physicians; (ii) the ALJ impermissibly “picked and
chose” evidence from the medical record to arrive at a finding of non-disability; and (iii) the
ALJ’s step five finding is legally deficient and not supported by substantial evidence. Pl.’s Mot.
1-2. The Commissioner responds by contending that the ALJ did not err when she evaluated
medical opinion evidence, and that the ALJ made proper findings at step five. Def.’s Resp. 6-13,
ECF No. 30.

Because the case must be remanded for closer review and more adequate

explanation of the pertinent medical evidence, the Court will not address Plaintiff’s second and

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third arguments.
IV.

ALJ’S DECISION
On October 16, 2015, ALJ Farris issued a decision denying Plaintiff’s application for

benefits through March 31, 2011, the date he was last insured. The ALJ did, however, determine
that Plaintiff became disabled on November 4, 2014, and continued to be disabled through the
date of her decision. AR 603. In doing so, the ALJ conducted the five-step sequential evaluation
process. AR 585-604. At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since May 21, 2010, the date of his alleged disability onset. At step two, the ALJ
determined Plaintiff had the following severe impairments: depression, post-traumatic stress
disorder (“PTSD”), pseudo seizures, and degenerative disc disease of the cervical and lumbar
spine. The ALJ found these impairments to be severe because they “combined to restrict the
[Plaintiff’s] physical and mental abilities, and have lasted for more than 12 months.” 2 AR 588.
At step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed impairment in
20 C.F.R. Part 404, Subpart P, Appendix 1. 3 To reach this conclusion, the ALJ evaluated
Plaintiff’s impairments under Listings 1.04, 12.04, 12.06, and 12.07. The ALJ first evaluated
Plaintiff’s degenerative disc disease of the cervical and lumbar spine under Listing 1.04
(disorders of the spine) and found that “neither medical imaging nor clinical examination
findings indicated nerve root or spinal cord compromise” and therefore, found that Plaintiff did

2

The ALJ determined that Plaintiff had cataracts, but that they were not severe. Additionally, the ALJ determined
that Plaintiff suffered from asthma, but found that it was not considered a medically determinable impairment.
Administrative R. (“AR”) 589-90. Plaintiff does not appeal those decisions here.

3

The specific sections of the Code of Federal Regulations the ALJ referenced include: 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926 (2017). AR 589.

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not meet the Listing. 4 AR 589.
Moving to Plaintiff’s mental impairments, the ALJ found that Plaintiff did not meet the
requirements for Listing 12.04 (depressive, bipolar and related disorders), Listing 12.06 (anxiety
and obsessive-compulsive disorders), or Listing 12.07 (somatic symptom and related disorders).
The ALJ determined that Plaintiff’s mental impairments resulted in the following limitations:
“no restriction in activities of daily living, moderate difficulties in maintaining social
functioning, moderate difficulties in maintaining concentration, persistence or pace, and one to
two episodes of decompensation, each of extended duration.” AR 589. Because Plaintiff’s
mental impairments had not caused at least two marked limitations or one marked limitation and
repeated episodes of decompensation, each of extended duration, the ALJ found that the
paragraph B criteria were not met. 5 AR 590. The ALJ also evaluated whether the evidence of

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Listing 1.04 provides:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by
appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and
resulting in inability to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. § Pt. 404, Subpt. P, App. 1.
5

Paragraph B in Listing 12.04 describes impairment-related functional limitations that are incompatible with the
ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder

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Plaintiff’s mental impairments satisfied the criteria for paragraph C of Listings 12.04 or 12.06. 6

described in the diagnostic description. Paragraph B requires that a severe mental impairment must result in at least
two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2.
Paragraph B in Listing 12.06 also describes impairment-related functional limitations that are incompatible with the
ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder
described in the diagnostic description. Paragraph B requires that a severe mental impairment must result in:
Extreme limitation of one, or marked limitation of two, of the following areas of mental
functioning:
1. Understand, remember, or apply information.
2. Interact with others.
3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.
Id.
6

Paragraph C in Listing 12.04 describes impairment-related functional limitations that are incompatible with the
ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder
described in the diagnostic description. Paragraph C requires:
Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than
a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal
increase in mental demands or change in the environment would be predicted to cause the
individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an arrangement.
Id.
Paragraph C in Listing 12.06 also describes impairment-related functional limitations that are incompatible with the
ability to do any gainful activity. The functional limitations listed below must be the result of the mental disorder
described in the diagnostic description. Paragraph C requires:
Your mental disorder in this listing category is “serious and persistent,” that is, you have a medically documented
history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured
setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your
environment or to demands that are not already part of your daily life.

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After reviewing the evidence, however, the ALJ determined that the paragraph C criteria were
also not met. AR 590-91.
Before step four, the ALJ determined that Plaintiff had the following residual functional
capacity (“RFC”) since May 21, 2010:
[T]o perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a),
and can occasionally climb, balance, stoop, or crouch, but can never kneel or
crawl. He can frequently but not constantly handle and finger. He must avoid
exposure to hazardous conditions including unprotected heights and dangerous
moving machinery. He is limited to simple work-related decisions with few
workplace changes. He should have no interaction with the general public. He is
limited to occasional, superficial interaction with co-workers.
AR 591.

In support of this RFC assessment, the ALJ found that “[Plaintiff’s] medically

determinable impairments might be expected to cause some of the alleged symptoms; however,
the [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible during the entire period at issue . . . .” AR 592. To reach this
determination, the ALJ considered Plaintiff’s testimony, medical opinion evidence from fourteen
different medical providers, an opinion from Plaintiff’s friend, and the record as a whole. See
AR 591-601.
Plaintiff previously worked as a welder and a house repairer. At step four, the ALJ
determined that since May 21, 2010, Plaintiff was not capable of performing this past relevant
work, given his RFC. AR 601-02. At the fifth and final step, the ALJ noted that prior to the
established disability onset date, Plaintiff was a younger individual pursuant to 20 C.F.R. §
404.1563. However, on November 4, 2014, his age category changed to an individual closely
approaching advanced age pursuant to 20 C.F.R. § 416.963. The ALJ further noted that Plaintiff
has at least a high school education and is able to communicate in English. The ALJ added that

Id.

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“transferability of job skills is not material to the determination of disability because using the
Medical-Vocational Rules as a framework supports a finding that the [Plaintiff] is ‘not disabled,’
whether or not [he] has transferable job skills.” AR 602.
After determining that Plaintiff could not return to his past work, the ALJ asked the VE
to consider whether there were jobs that existed in the national economy for an individual with
Plaintiff’s age, education, work experience, and residual functional capacity. AR 602-03. The
VE identified three jobs that such an individual would be capable of performing, including:
clearance cutter (DOT 7 615.685-014), cuff folder (DOT 685.687-014), and motor polarizer
(DOT 715.687-090). Subsequently, the ALJ concluded that prior to the established onset date of
disability, November 4, 2014, Plaintiff “was capable of making a successful adjustment to other
work that existed in significant numbers in the national economy.” AR 603. Therefore, the ALJ
found that Plaintiff was not disabled under the meaning of the Act from May 21, 2010 through
November 4, 2014. AR 604.
V.

ANALYSIS
Plaintiff challenges the ALJ’s finding of nondisability by questioning the ALJ’s method

of evaluating medical opinion evidence, including evidence from treating physicians. Pl.’s Mot.
12-18. Generally, Plaintiff argues that the ALJ “collapsed” the two-step inquiry for treating
physicians into a single step. Id. at 14. Furthermore, Plaintiff specifically challenges the ALJ’s
treatment of: (i) Dr. Stephen Rawe, neurosurgeon, (ii) Dr. Mark Evanko, doctor of osteopathic
medicine, and (iii) Dr. Stephen Cheshire, psychologist. Id. at 12-18. The Court will discuss each
of these opinions in turn.

7

DOT stands for “Dictionary of Occupational Titles.”

10

a. The Treating Physician Rule
“Under the regulations, the agency rulings, and our case law, an ALJ must ‘give good
reasons in [the] notice of determination or decision’ for the weight assigned to a treating
physician’s opinion.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting 20
C.F.R. § 404.1527(d)(2) (2016)). The notice of determination or decision “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.” Id. (quoting SSR 96-2p, 1996 WL
374188, at *5 (July 2, 1996)). When evaluating a treating source medical opinion as to the
nature or severity of an individual’s impairments, an ALJ should “[g]enerally . . . give more
weight to opinions from [claimant’s] treating sources.” 20 C.F.R. § 404.1527(d)(2). “The
treating physician’s opinion is given particular weight because of his 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 or brief hospitalizations.”
Hamlin, 365 F.3d at 1215 (citing Doyal, 331 F.3d at 762.).
In reviewing the opinions of a treating physician, an ALJ must proceed sequentially.
Watkins, 350 F.3d at 1300. First, an ALJ must consider whether the medical opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques.” Id. (quoting
SSR 96-2p, 1996 WL 374188, at *2). If the ALJ finds that the medical opinion is well-supported
by such techniques, he or she must then confirm it is consistent with other substantial evidence in
the record. Id. “[I]f the opinion is deficient in either of these respects, then it is not entitled to
controlling weight.” Id.
If the opinion is not entitled to controlling weight, “the ALJ must then consider whether
the opinion should be rejected altogether or assigned some lesser weight.” Pisciotta, 500 F.3d at
1077. This inquiry is governed by its own set of factors, which include:
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(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, 350 F.3d at 1301 (quotation omitted). While an ALJ must consider these factors, she
need not expressly discuss each of them in her opinion. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007); SSR 06-3p, 2006 WL 2329939, at *5 (Aug. 9, 2006) (“Not every factor for
weighing opinion evidence will apply in every case.”). Rather, “the ALJ must make clear how
much weight the opinion is being given (including whether it is being rejected outright) and give
good reasons, tied to the factors specified in the cited regulations for this particular purpose, for
the weight assigned.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (citing Watkins,
350 F.3d at 1300–01). Furthermore, the ALJ’s decision 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.” Oldham, 509 F.3d at 1258. If this is not done,
a remand is required. Watkins, 350 F.3d at 1300.
b. Stephen Rawe, M.D., PhD
The record reflects that Dr. Stephen Rawe served as Plaintiff’s neurosurgeon in
Charleston, South Carolina. Plaintiff first sought treatment from Dr. Rawe on May 18, 2011,
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with a chief complaint of back and neck pain. Plaintiff indicated he had been experiencing such
pain for the past ten to fifteen years. Dr. Rawe’s consultation notes indicate that Plaintiff was
experiencing cervical spondylosis with bilateral exit, foraminal stenosis, and anterior cord
compression, along with multilevel lumbar spondylosis. Dr. Rawe noted that Plaintiff did not
have a surgical option for his lumbar spine but he did have a strong option for cervical spine
surgery. AR 551-52. On May 25, 2011, Plaintiff underwent surgery, with Dr. Rawe performing
a partial corpectomy. AR 554-56. Plaintiff was discharged the following day, and follow-up
notes six weeks after the operation indicate that although he was still experiencing pain, his neck
pain had improved. AR 557-58. Plaintiff last visited Dr. Rawe’s office in August 2011, and the
office notes indicate that he was still experiencing lower back pain which extended to his left leg.
AR 560.
In a “Medical Assessment of Ability to Do Work-Related Activities (Physical)” dated
November 5, 2012, Dr. Rawe assessed Plaintiff in seven categories related to workplace skills
and activities. 8 Broadly, he opined that Plaintiff would need to rest intermittently throughout the
day due to pain and fatigue. More specifically, he also concluded: Plaintiff would need to stand
and walk at least two hours in an eight-hour work day; must periodically alternate sitting and
standing to relieve pain and discomfort; his ability to push and pull is limited in his upper
extremities; he is unable to do gross or fine manipulation with his left hand; he is limited in
reaching in all directions; and, he can occasionally kneel, stoop, and crouch, but can never crawl.
He based these opinions on Plaintiff’s cervical neuropathy and lumbar stenosis. AR 1218.
The ALJ assigned “some weight” to Dr. Rawe’s opinion, finding it “somewhat consistent
with the overall record.” AR 595. She reasoned as follows:

8

Dr. Rawe opined on Plaintiff’s abilities as they related to the following categories: physical effort, lifting, standing
and walking, sitting, pushing and pulling, manipulative, and postural. AR 1218.

13

Despite Dr. Rawe’s treatment relationship with the [Plaintiff], having performed
his neck surgery, the probative value of this opinion is diminished by the fact that
Dr. Rawe had not examined the [Plaintiff] since 2011, and it is unclear how his
opinion as to these physical limitations was reached, or to what period of time it
applies.
AR 595.
Plaintiff attacks the ALJ’s reasoning with respect to Dr. Rawe, arguing that “she did not
analyze his opinion in light of the six factors contemplated by the regulations, but instead
apparently rejected the assessment as not chronologically pertinent.” Pl.’s Mot. 15-16. This
approach, in Plaintiff’s view, contradicts the district court’s previous ruling in this case when it
declared that “the evidence was probative of [Plaintiff’s] functional ability during the relevant
period.” AR 16. The Commissioner responds to Plaintiff’s arguments by stating that the ALJ’s
three reasons for discounting Dr. Rawe’s opinion were sufficient under binding Tenth Circuit
law. Def.’s Resp. 8.
The Court finds that the reasons the ALJ cited – comprised in a single sentence – are not
legally sufficient to support her treatment of Dr. Rawe’s opinion. The ALJ’s reasoning appears
to have incorporated at least one Watkins factor, that being the length of Dr. Rawe’s treatment
relationship with Plaintiff. Even so, the ALJ’s single sentence of abbreviated reasoning does not
withstand further scrutiny. The ALJ primarily relied on the fact that Dr. Rawe had not examined
Plaintiff since August 2011, and in her opinion, this diminished the probative value of his
opinion. She further stated that it was unclear what period of time his opinion applied to.
Neither of these points have merit. If the ALJ had closely reviewed the entire record, she would
have seen what the Court saw, which is that Plaintiff was homeless in South Carolina and moved
to New Mexico in the fall of 2011 because a friend offered him shelter. Therefore, Plaintiff’s
relocation from South Carolina to New Mexico clearly precluded further visits with Dr. Rawe,

14

who is located in South Carolina. This leads to the inescapable conclusion that Dr. Rawe’s
opinion was based on his documented treatment of Plaintiff during the period of May 2011
through August 2011. Because Dr. Rawe and his team treated Plaintiff only for this fixed,
limited, and clearly identified period, the period of time to which the doctor’s opinions pertained
should have been manifestly clear to the ALJ. Furthermore, because the instant case focuses
only on the period of May 2010 through November 2014, the Court finds Dr. Rawe’s opinion to
be helpful in determining whether Plaintiff was disabled during this period.
Moreover, the ALJ’s terse finding that Dr. Rawe’s opinion was “somewhat consistent”
with the overall record – without more – does not provide this Court, or any other reviewing
court, with sufficient guidance as to what such a statement means. The ALJ failed to explain
what portion of the doctor’s opinion was “somewhat consistent” with the other substantial
evidence in the record, much less what that substantial evidence was. This approach leaves the
Court with more questions than answers. For example, Dr. Rawe opined that Plaintiff would
need to intermittently rest throughout the day due to pain and fatigue. See AR 1218. Given that
virtually each one of Dr. Rawe’s treatment notes concerns Plaintiff’s severe back and neck pain,
the ALJ should have incorporated this limitation into the RFC or explicitly explained why she
was omitting it. This is particularly so given that this portion of Dr. Rawe’s opinion is identical
to Dr. Evanko’s opinion on two separate dates, in 2012 and 2015. See AR 1147-48, 1180-81.
Other limitations identified by Dr. Rawe were that Plaintiff would need to stand and walk
two hours out of an eight-hour work day and that he would need to alternate between sitting and
standing due to pain. Again, the ALJ made no mention of these restrictions and omitted them
from Plaintiff’s RFC.

Dr. Evanko reached similar conclusions.

Nonetheless, instead of

explaining why opinions by two of Plaintiff’s treating physicians, in two different states, who

15

arrived at identical conclusions years apart were not credited, the ALJ opted for silence. To
emphasize: merely summarizing medical records and then providing the Court with generalized
boilerplate language disguised as an explanation does not comply with the law. For this Court to
conduct the review required of it, an ALJ needs to do more. For these reasons, the Court finds
that the ALJ’s consideration of Dr. Rawe’s opinions did not comply with the proper legal
standards.
c. Mark Evanko, DO
Dr. Mark Evanko practices family medicine and served as Plaintiff’s primary care
physician upon his transition to Los Lunas, New Mexico, in 2011. Medical records demonstrate
that Plaintiff established care with Dr. Evanko on November 10, 2011 [AR 918], and they
maintained a consistent treatment relationship through July 15, 2014. See AR 906-18, 1082-84,
1150-75. Dr. Evanko saw Plaintiff for a total of twenty-one visits in thirty-three months for
issues ranging from pain in his hip, neck, and shoulders as well as seizures.
Dr. Evanko submitted a total of four checkbox-style opinions related to Plaintiff’s
abilities to do work-related activities – two in August 2012 and two in June 2015. See AR 118081, 1147-48. In a “Medical Assessment of Ability to Do Work-Related Activities (Physical)”
dated August 23, 2012, Dr. Evanko assessed Plaintiff in seven categories related to workplace
skills and activities. 9 Dr. Evanko opined that due to pain and fatigue, Plaintiff would be unable
to maintain physical effort for long periods without a need to decrease activity or pace, or he
would need to rest intermittently throughout the day. He also offered specific opinions on the
following: Plaintiff could both occasionally and frequently lift and carry less than five pounds;
he could stand and walk for less than two hours in an eight-hour work day; he could sit for less
9

Dr. Evanko opined on Plaintiff’s abilities as they related to the following categories: physical effort, lifting,
standing and walking, sitting, pushing and pulling, manipulative, and postural. AR 1218.

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than four hours in an eight-hour work day; his ability to push and pull was limited in both his
upper and lower extremities; he was able to do gross and fine manipulation with both hands; he
was limited in reaching in all directions; he could occasionally kneel, stoop, crouch, and crawl;
and, non-physical work activities were affected by pain, fatigue, sleep disturbances,
neurocognitive problems, and mental problems. He based these opinions on Plaintiff’s cervical
disc disease and shoulder pain. As evidence, he cited to Plaintiff’s magnetic resonance imaging
(“MRI”) scans. AR 1181.
In a “Medical Assessment of Ability to do Work-Related Activities (Non-Physical)”
dated August 23, 2012, Dr. Evanko assessed Plaintiff in two categories related to workplace
skills and activities. He opined that Plaintiff suffered from a pain producing impairment, injury,
or sickness, which caused sleep disturbances and fatigue, such that it would cause Plaintiff to
need to rest or lie down at regular intervals. See AR 1180. Additionally, of the eight subcategories related to Plaintiff’s limitations, he opined that Plaintiff experienced “moderate
severity” in six, and “marked severity” in two. 10
Approximately three years later, on June 19, 2015, Dr. Evanko completed the same
checkbox-style assessments of Plaintiff’s physical and non-physical abilities to do work-related

10

Per the form, “moderate severity” means “a limitation that seriously interferes with the individual’s ability to
perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent
schedule.” Dr. Evanko assessed that Plaintiff experienced moderate severity in the following sub-categories: (i)
maintain attention and concentration for extended periods (i.e. 2-hour segments), (ii) perform activities within a
schedule, (iii) maintain regular attendance and be punctual within customary tolerance, (iv) sustain an ordinary
routine without special supervision, (v) work in coordination with/or proximity to others without being distracted by
them, and (vi) make simple work-related decisions.

“Marked severity” means “a severe limitation which precludes the individual’s ability usefully to perform the
designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent schedule.”
Dr. Evanko assessed that Plaintiff experienced marked severity in the following sub-categories: (i) maintain physical
effort for long periods without a need to decrease activity or pace, or to rest intermittently, and (ii) complete a
normal workday and workweek without interruptions from pain or fatigue based symptoms and to perform at a
consistent pace without unreasonable number and length of rest periods.
AR 1180.

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activities. The June 2015 physical assessment was identical to the August 2012 assessment, with
one change: Dr. Evanko opined that Plaintiff could occasionally lift less than twenty pounds, as
opposed to less than five pounds. AR 1147. The June 2015 non-physical assessment was again
almost identical, with the exception that Dr. Evanko opined that Plaintiff experienced “marked
severity” in three categories, as opposed to two from August 2012. He changed the category of
“sustain an ordinary routine without special supervision” from moderate severity to marked
severity. Dr. Evanko offered the following comments: “Disc disease in both cervical and lumbar
regions with compression nerve roots and spinal cord.” AR 1148.
The ALJ assigned “some weight” to both of Dr. Evanko’s opinions, finding the 2012
opinion to be “somewhat consistent with the overall record, including Dr. Evanko’s
examinations, in which he sometimes noted objective findings supporting the [Plaintiff’s]
subjective complaints. However, the opinion as to limitations in sitting and standing is not
supported by the overall record.” In discussing the 2015 opinion, she reasoned “[t]his opinion is
nearly identical to Dr. Evanko’s more recent opinion and is therefore likewise assigned some
weight.” AR 594.
Plaintiff argues that, based on the ALJ’s language regarding Dr. Evanko, she
“presumably found that the opinion was entitled to controlling weight.” Pl.’s Mot. 17. The
Commissioner responds that Plaintiff is mischaracterizing what the ALJ wrote, and that the ALJ
clarified that she found his opinions to be “somewhat consistent” with the overall record. Def.’s
Resp. 11. Defendant further emphasizes what the ALJ intended by stating that “[i]n other words,
Dr. Evanko’s opinion that Plaintiff had limitations due to degenerative disc disease and mental
impairments was consistent with the record. However, the extent to which Dr. Evanko opined
Plaintiff was limited was not consistent with other evidence.” Id.

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The Court finds that the ALJ’s reasoning with respect to Dr. Evanko is legally
insufficient. The ALJ made the same critical mistake with Dr. Evanko as she did with Dr. Rawe,
that being missing step one of the treating physician rule. See Watkins, 350 F.3d at 1300 (“An
ALJ must first consider whether the opinion is well-supported by medically acceptable clinical
and laboratory diagnostic techniques.). The ALJ made no such determination in regards to Dr.
Evanko. Her decision to assign Dr. Evanko’s opinions “some weight” clearly indicates that she
did not find them to be deserving of controlling weight. However, as previously discussed, this
approach does not satisfy the law since the treating physician rule consists of two distinct steps.
In discounting Dr. Evanko’s opinions, the ALJ again provided boilerplate language with
one additional sentence concerning Plaintiff’s limitations in sitting and standing. Without further
explanation, the Court cannot find that such a statement is supported by substantial evidence. As
previously discussed, Dr. Rawe opined that Plaintiff would need accommodations regarding
sitting and standing. For his part, Dr. Evanko offered similar opinions, but the ALJ failed to
sufficiently explain why opinions by two of Plaintiff’s treating physicians who treated him at
different points in time for severe pain are only worthy of partial credit. Justifying this finding
with a blanket-style explanation such as “this portion of the opinion is not supported by the
overall record” is unhelpful because the Court does not know what other evidence in the record
the ALJ is citing to in reaching this determination.
d. Stephen Cheshire, PhD
Dr. Stephen Cheshire is a medical psychologist and served as Plaintiff’s treating
psychologist beginning in 2015. The records reflect that Dr. Cheshire was treating Plaintiff for
anxiety, depression, PTSD, and medication management. Dr. Cheshire saw Plaintiff on seven
occasions over the course of five months in 2015. See AR 1187-98.

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In a “Medical Assessment of Ability to Do Work-Related Activities (Mental)” dated May
15, 2015, Dr. Cheshire assessed Plaintiff in four categories, comprising twenty sub-categories,
related to workplace skills and activities. Of these twenty sub-categories, Dr. Cheshire assessed
that Plaintiff experienced “slight severity” in five, “moderate severity” in five, and “marked
severity” in ten. 11 Additionally, he opined that “[Plaintiff] is [ ] essentially unable to maintain
adequate/normal relationships without significant [sic] escalate very minor conflicts.” AR 1143
(emphasis original).
The ALJ assigned “limited weight” to Dr. Cheshire opinion, finding as follows:
Although Dr. Cheshire is a treating psychologist, there are very few treatment
reports in the record, covering only 3 or 4 months. In these few reports, Dr.
Cheshire usually noted ongoing complaints, but also some improvement, and did
not note objective findings to support the [Plaintiff’s] subjective complaints. As
such, Dr. Cheshire’s reports do not support the extreme limitations in mental
function reflected in Dr. Cheshire’s opinion statements. I accord some weight to
these opinion statements in that each statement indicates limitation in the
[Plaintiff’s] mental functioning, which is consistent with the overall record.
However, because the overall record, including Dr. Cheshire’s own reports, does
11

Per the form, “slight severity” means there is no significant limitation in this area. Dr. Cheshire assessed that
Plaintiff experienced slight severity in the following sub-categories: (i) remember locations and work-like
procedure, (ii) carry out very short and simple instructions, (iii) make simple work-related decisions, (iv) ask simple
questions or request assistance, and (v) travel in unfamiliar places or use public transportation.
“Moderate severity” means “a limitation that seriously interferes with the individual’s ability to perform the
designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent schedule.”
Dr. Cheshire assessed that Plaintiff experienced moderate severity in the following sub-categories: (i) understand
and remember very short and simple instructions, (ii) carry out detailed instructions, (iii) maintain attention and
concentration for extended periods of time (i.e. 2-hour segments), (iv) be aware of normal hazards and take adequate
precautions, and (v) set realistic goals or make plans independently of others.
“Marked severity” means “a severe limitation which precludes the individual’s ability usefully to perform the
designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent schedule.
Dr. Cheshire assessed that Plaintiff experienced marked severity in the following sub-categories: (i) understand and
remember detailed instructions, (ii) perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerance, (iii) sustain an ordinary routine without special supervision, (iv) work in
coordination with/or proximity to others without being distracted by them, (v) complete a normal workday and
workweek without interruptions from psychological based symptoms and to perform at a consistent pace without
unreasonable number and length of rest periods, (vi) interact appropriately with the general public, (vii) accept
instructions and respond appropriately to criticism from supervisors, (viii) get along with coworkers or peers without
distracting them or exhibiting behavioral extremes, (ix) maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness, and (x) respond appropriately to changes in the work place.
AR 1142-43.

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not support the specific opinions as to the degree of limitation, his opinions are
accorded limited weight overall.
AR 597-98.
Plaintiff argues that the ALJ’s reasoning is unclear with regards to Dr. Cheshire, and that
the ALJ “committed clear error by failing to provide, at either step of the analysis, specific and
legitimate reasons to justify completely rejecting the favorable opinion evidence by [Plaintiff’s]
treating psychologist.” Pl.’s Mot. 18. Defendant proffers nothing substantive in response, and
relies instead on a recitation of the ALJ’s reasoning. See Def.’s Resp. 12.
As to Dr. Cheshire, the Court concludes that the ALJ’s treating physician analysis is both
free of legal error and supported by substantial evidence. Procedurally, the record refutes
Plaintiff’s claim that the ALJ failed to provide specific and legitimate reasons for assigning the
opinion diminished weight. See Pl.’s Mot. 18. Like the two preceding treating physicians, the
ALJ was required to undertake a two-step inquiry to determine if Dr. Cheshire’s opinion should
be assigned controlling weight. This, the ALJ did. At the first step, she determined that Dr.
Cheshire’s opinion was inconsistent with other medical evidence in the record. See Krauser, 638
F.3d 1324, 1330 (10th Cir. 2011) (providing that in the “initial determination” of the treating
physician analysis, “an opinion must be given controlling weight if it is well-supported by
medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in the record . . . [but], [i]f the opinion is deficient in either of these
respects, it is not to be given controlling weight”) (internal citations omitted). Specifically, she
found that “the overall record” did not “support [Dr. Cheshire’s] specific opinions” concerning
Plaintiff’s degree of limitation. AR 598.
Having found Dr. Cheshire’s opinion to be inconsistent with the overall record, the ALJ
assumed two concomitant obligations. See Krauser, 638 F.3d at 1330. First, she became bound
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to refuse Dr. Cheshire’s opinion controlling weight, and second, she assumed the responsibility
of deciding what lesser weight, if any, to assign Dr. Cheshire’s opinion based on the six Watkins
factors.

See Watkins, 350 F.3d at 1301; 20 C.F.R. § 404.1527 (codifying these factors).

Although the ALJ was required to consider the six Watkins factors, see supra p. 12, she was not
bound to discuss each in her opinion. See Oldham, 509 F.3d at 1258; SSR 06-3P, 2006 WL
2329939, at *5 (Aug. 9, 2006) (“Not every factor for weighing opinion evidence will apply in
every case.”). Indeed, rather than a formulaic recitation of the regulatory factors, what Watkins
demands is “that the ALJ’s decision 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.’” Oldham, 509.F.3d at 1258 (quoting Watkins, 350 F.3d at 1300). Put
another way, the ALJ must “provide[ ] good reasons” in her decision for the weight she gives
treating source opinions. Id.
Here, the ALJ assigned limited weight to Dr. Cheshire’s opinion based on the length of
Plaintiff’s treatment record and the frequency of her examination (the first Watkins factor), the
opinion’s unsupportability (the third Watkins factor), and its internal inconsistency (the fourth
Watkins factor). See Watkins 350 F.3d at 1301. The ALJ supported these findings with a
detailed account of Plaintiff’s treatment by Dr. Cheshire, which included citations to contrary,
well-supported evidence. See AR 596 (noting occasional improvements in sleep, a manageable
anxiety level, and relatively euthymic presentation). These references, coupled with the ALJ’s
extensive review of Plaintiff’s treatment by Dr. Cheshire, satisfy the analysis demanded by
Watkins and Oldham.

Moreover, the ALJ’s references to the record make patent that she

considered all the relevant Watkins factors, even if she only discussed the three mentioned
above. See Watkins, 350 F.3d at 1301. Based on the above, this Court finds the ALJ’s reasoning

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for according Dr. Cheshire’s opinion little weight “sufficiently specific” to make clear to this
Court and subsequent reviewers the weight she assigned and the reasons for that weight.
Oldham, 509 F.3d at 1258. Consequently, the Court cannot find error in the ALJ’s decision to
discount the treating physician’s opinion.
Whether the Court would have evaluated Dr. Cheshire’s opinion differently if it were the
original fact finder or were reviewing the evidence de novo is not the question. It is not the
proper role of this Court to substitute its judgment for that of the ALJ. “In reviewing the ALJ’s
decision, ‘we neither reweigh the evidence nor substitute our judgment for that of the agency.’”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). The Court’s role is confined to determining
whether the ALJ erred as a matter of law in her treatment of Dr. Cheshire’s opinion. The Court
finds no such error.
VI.

CONCLUSION
The ALJ did not follow the correct legal standards in considering opinions from Dr.

Rawe or Dr. Evanko. Absent further clarification from the ALJ, the Court is unable to conclude
that her reasoning with respect to these two treating physicians is supported by substantial
evidence.
IT IS THEREFORE ORDERED that Plaintiff’s Motion is GRANTED and this case is
REMANDED for further proceedings consistent with this Order.
IT IS SO ORDERED.

_________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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