Romero v. Social Security Administration

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Lourdes A. Martinez granting in part and denying in part 19 Motion to Remand to Agency (jca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDREW T. ROMERO,
Plaintiff,
v.

No. CIV-16-121 LAM

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum (Doc. 19), filed September 29, 2016 (hereinafter
“motion”). On January 3, 2017, Defendant filed a response (Doc. 23) to Plaintiff’s motion and,
on January 18, 2017, Plaintiff filed a reply (Doc. 24). In accordance with 28 U.S.C. § 636(c)(1)
and Fed. R. Civ. P. 73(b), the parties have consented to have the undersigned United States
Magistrate Judge conduct all proceedings and enter a final judgment in this case. See [Docs. 4
and 8]. The Court has considered Plaintiff’s motion, Defendant’s response, Plaintiff’s reply, and
the relevant law. Additionally, the Court has meticulously reviewed and considered the entire
administrative record.

[Doc. 13].

For the reasons set forth below, the Court FINDS that

Plaintiff’s motion should be DENIED in part and GRANTED in part and that the decision of the
Commissioner of the Social Security Administration (hereinafter “Commissioner”) should be
REMANDED for rehearing on the issue of availability of work that Plaintiff can perform.
.

I. Procedural History
On July 2, 2009, Plaintiff filed applications for Disability Insurance Benefits (hereinafter
“DIB”) and Supplemental Security Income (hereinafter “SSI”), alleging disability that began on
February 1, 2007 (Doc. 13-7 at 2-6). 1 Plaintiff’s DIB and SSI applications were denied at the
initial level on November 16, 2009 (Doc. 13-6 at 2), and at the reconsideration level on July 7,
2010 (id. at 11). Plaintiff requested a hearing to review the denial of his applications (id. at 18),
and Administrative Law Judge Barry O’Melinn (hereinafter “ALJ”) conducted a hearing on
November 15, 2011 (Doc. 13-4 at 2-43). Plaintiff appeared, represented by his former attorney,
and testified. Id. at 7-33, 41. Vocational Expert Elizabeth Wheeler also appeared, by phone, and
testified. Id. at 33-41. On March 13, 2012, the ALJ issued a decision (Doc. 13-3 at 11-20)
(hereinafter “2012 Decision”) finding that Plaintiff “has not been under a disability within the
meaning of the Social Security Act from February 1, 2007, through the date of this decision” (id.
at 11). On May 8, 2012, Plaintiff requested that the Appeals Council review the ALJ’s 2012
Decision. [Doc. 13-3 at 7]. On March 18, 2013, the Appeals Council denied Plaintiff’s request
for review on the ground that there was “no reason under our rules to review the [ALJ]’s decision.”
Id. at 2. Shortly thereafter, on May 1, 2013, Plaintiff filed new applications for SSI and DIB
benefits, alleging an onset date of March 14, 2012. [Doc. 13-17 at 4-10 and 13-14, respectively].

1

Plaintiff’s last day of insured status for DIB was June 30, 2011. [Doc. 13-8 at 3]. Therefore, in order to
receive DIB benefits, Plaintiff must have been disabled on or before that date. See 42 U.S.C. § 423(a). SSI benefits
are not so limited.

2

Plaintiff’s 2013 DIB application was denied on May 6, 2013, on the ground that he did not qualify
for disability benefits because he did not have enough work credits. 2

[Doc. 13-15 at 6].

Plaintiff’s 2013 SSI application was denied initially on August 12, 2013 (id. at 9), and at the
reconsideration level on December 30, 2013 (id. at 20). Plaintiff appealed the Appeals Council’s
March 18, 2013 ruling on his first claims to this Court, which subsequently issued a decision
reversing and remanding that decision, on the ground that the ALJ impermissibly failed to discuss
the weight he assigned to Dr. [K.] Glass’s [November 2009] opinion.” Romero v. Colvin,
13-0458 SMV, Doc. 34 at 5 (D. N.M. September 8, 2014) (unpublished).
Following remand, the Appeals Council issued an October 23, 2014 order that:
(1) vacated the ALJ’s 2012 decision; (2) remanded the case back to the ALJ; and (3) directed the
ALJ to combine Plaintiff’s two pending claim files, create a single electronic record, and issue a
new decision on the consolidated cases. 3 [Doc. 13-14 at 44-45]. Pursuant to that order, the ALJ
held a new hearing on August 26, 2015 (hereinafter “2015 Hearing”), at which Plaintiff appeared,
represented by his current attorney, and testified. [Doc. 13-13 at 3, 9-27]. Vocational Expert
Sandra M. Trost also appeared and testified. Id. at 27-30. At the 2015 Hearing, Plaintiff’s
counsel requested to amend the alleged onset date of Plaintiff’s disability to September 8, 2008.

2

The record does not indicate whether Plaintiff appealed this decision. However, he had not worked since
his first DIB application was filed and, based on that application, his DIB benefits expired on June 30, 2011
(Doc. 13-8 at 3), which is prior to March 14, 2012, the onset date claimed in his second application (Doc. 13-17
at 13-14).
3

Although the remanded case was initially assigned to a different ALJ, it ultimately returned to ALJ
O’Melinn at Plaintiff’s request. [Doc. 13-15 at 51].

3

Id. at 6-7. That request was granted by the ALJ. Id. On October 19, 2015, the ALJ issued a
new decision (hereinafter the “2015 Decision”), finding that Plaintiff “has not been under a
disability . . . from September 1, 2008 through the date of this decision.” [Doc. 13-12 at 6].
Plaintiff did not file exceptions to the ALJ’s 2015 decision, and the Appeals Council did not
assume jurisdiction within sixty days. Therefore, pursuant to 20 C.F.R. § 404.984(d), the ALJ’s
decision became the final decision of the Commissioner. On February 19, 2016, Plaintiff filed his
complaint in this case. [Doc. 1].

II. Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards were applied.
Maes v.

Astrue,

522 F.3d 1093, 1096

(10th Cir. 2008)

(citing

Hamilton v.

Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)).

Sec’y

of

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.

See 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. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118 (citation and quotation marks
omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d
at 760 (citation and quotation marks omitted). An ALJ’s decision “is not based on substantial

4

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 (citation and quotation marks omitted);

Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted).

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 ALJ’s findings in order to determine if the
substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005)
(citations omitted). “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent [the ALJ]’s 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)).

III. Applicable Law and Sequential Evaluation Process
For purposes of social security disability claims, a person establishes a disability when he
or 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. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). In light of this definition for disability, a
five-step sequential evaluation process (hereinafter “SEP”) has been established for evaluating a
disability claim. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first
four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in
“substantial gainful activity;” and (2) the claimant 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) the claimant’s impairment(s) meet(s) or equal(s) one of the “Listings” of

5

presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past
relevant work.” 20 C.F.R. § 404.1520(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 economy, considering his or her residual functional
capacity (hereinafter “RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.

IV. Plaintiff’s Age, Education, Work Experience,and Medical History;
and the ALJ’s Decision
Plaintiff was born on October 1, 1966, and was 41 years old on September 1, 2008, the
alleged date of disability onset. [Doc. 13-12 at 5 and 20]. On October 22, 2015, the date of the
ALJ’s 2015 Decision, Plaintiff was age 49. Thus, Plaintiff was both a “younger person age
18-44” and a “younger person age 45-49” 4 at all times pertinent to the ALJ’s 2015 Decision
regarding his disability claims. Although Plaintiff suffers from several severe joint impairments,
he has not challenged the ALJ’s ruling on the basis of those impairments. Instead, Plaintiff
asserts that the ALJ erred in his determination of the limitations imposed by his mental
impairments, as well as that VE Trost provided unreliable information at step five of the SEP.
Therefore, the Court will not discuss Plaintiff’s physical or exertional limitations in any detail. It

4

See 20 C.F.R. §§ 404.1563(c) and 416.963(c) (defining a “younger person” as “under age 50”), but also
noting that younger persons that are age 45-49 may, in some circumstances, be more limited in the ability to adjust to
other work than other persons in this category. As such, the Grid Rules include “Younger individual age 45-49” as a
separate category. See, e.g., Grid Rule 201.17 (20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.17).

6

is sufficient to note that those physical impairments led the ALJ to find that Plaintiff now has the
RFC only to perform “sedentary” work.
Plaintiff’s medical records include: progress notes dated March 8, 2012 from Valencia
Counseling Services, Inc. (Doc. 13-20 at 2-6); psychiatric evaluation dated June 26, 2013 by Carol
Lynn Hunter, CNS (Doc. 13-25 at 37-41); Mental RFC dated July 28, 2015 by Paul Weeks, LPCC
(Doc. 13-28 at 19-22); treatment records for the period from October 4, 2013 to July 31, 2014
(Doc. 13-27 at 15-51), and the period from August 22, 2014 to July 7, 2015 (Doc. 13-28 at 24-48),
from Valle del Sol; and treatment records from University of New Mexico Health Sciences Center
for the period from October 22, 2013 to August 5, 2015 (Doc. 13-29 at 3-40). Where relevant,
Plaintiff’s medical records are discussed in more detail below.
At step one of the five-step evaluation process, the ALJ found that, Plaintiff “has not
engaged in substantial gainful activity since September 1, 2008, the alleged onset date.”
[Doc. 13-12 at 8]. At step two, the ALJ found that Plaintiff has the following severe impairments:
“degenerative disc disease of the lumbar spine, degenerative joint disease of the right hip,
degenerative joint disease of the shoulders, osteoarthritis of the left metatarsal phalangeal joint
status post[-]surgical fusion, an affective disorder, and an anxiety related disorder.” Id. At the
third step, the ALJ found that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
and 416.926).” Id. at 10. In so finding, the ALJ considered Listings 1.02 (major dysfunction of
a joint, 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety related
disorders). Id. With respect to the paragraph B criteria for these Listings, the ALJ found that

7

Plaintiff has mild restriction of his activities of daily living, mild difficulties with social
functioning, moderate difficulties with concentration, persistence or pace, has had no episodes of
decompensation of extended duration and, therefore, does not satisfy the criteria. Id. at 11. The
ALJ then determined that Plaintiff also did not meet the paragraph C criteria for the Listings. Id.
at 12. Prior to step four, the ALJ determined that, from September 1, 2008, the alleged onset of
his disability, Plaintiff had the RFC to:
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
that he can lift and carry up to 10 pounds occasionally; stand and/or walk about 2
hours and sit up to 6 hours during 8 hours with normal breaks; push/pull within the
sedentary exertional limitations; occasionally climb ramps or stairs; never climb
ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl;
must avoid concentrated exposure to operational control of moving machinery,
unprotected heights, and hazardous machinery; can understand, carry out, and
remember simple instructions and make commensurate work related decisions;
respond appropriately to supervision, coworkers, and work situations; deal with
routine changes in a work setting; and maintain concentration, persistence, and
pace for up to and including 2 hours at a time with normal breaks throughout the
normal work day.
Id. In support of this RFC assessment, the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff]’s
statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” Id. at 13.
At step four, the ALJ found that Plaintiff was unable to perform his past relevant work,
consisting of radiator repair technician (unskilled, very heavy work) and bricklaying (skilled,
medium work), based on his current, sedentary RFC. Id. at 20. At step five, the ALJ found that
there were jobs that existed in significant numbers in the national economy that Plaintiff could
perform. Id. at 21. The ALJ relied on VE Trost’s testimony that an individual with Plaintiff’s
age, education, work experience, and RFC would be able to perform the following representative
8

jobs: addresser, (DOT 5 209.587-010), surveillance systems monitor (DOT 379.367-010), and
document preparer (DOT 249.587-018). [Doc. 13-13 at 29]. All three representative jobs are
sedentary, and have SVP ratings of 2. 6 The job of addresser has a reasoning rating of 2, while
both surveillance systems monitor and document preparer have reasoning ratings of 3. 7 VE Trost
testified that each of the representative jobs she listed had the following numbers of jobs in the
national economy: addresser – 11,084; Surveillance systems monitor – 13,212; and document
preparer – 64,119. Id. The ALJ concluded that Plaintiff “has not been under a disability, as
defined in the Social Security Act,” from the alleged onset date through the date of the decision.
[Doc. 13-12 at 22].

5

DOT stands for Dictionary of Occupational Titles, which provides information about job characteristics
compiled by the Department of Labor that is used by VEs in disability hearings to determine claimants’ job prospects.
It is available at http://www.occupationalinfo.org/ (site last visited March 10, 2017).
6

SVP stands for Specific Vocational Preparation, which is a rating of the amount of time it takes “a typical
worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a
specific job-worker situation.” POMS-DI-25001.00-B-79, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0
425001001#b79 (site last visited March 10, 2017). SVP level 2 jobs require “[a]nything beyond [a] short
demonstration up to and including one month” of such preparation. Id. A job with an SVP rating of 1 or 2 is
considered “unskilled work.” POMS-DI-25001.00-B-88, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/04
25001001#b88 (site last visited March 10, 2017).
7

Although VE Trost did not testify regarding the representative jobs’ reasoning levels, that information is
contained in the “trailer” to the job definitions in the DOT. Reasoning, Math, and Language are divisions of General
Educational Development (GED), which is described at http://www.occupationalinfo.org/appendxc_1.html (site last
visited March 10, 2017). A level 2 reasoning job requires employees to be able to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few
concrete variables in or from standardized situations,” while level 3 reasoning jobs require the ability to “[a]pply
commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with
problems involving several concrete variables in or from standardized situations.” Id. As an example, the trailer to
the DOT’s description of “document preparer” is “GOE: 07.05.03 STRENGTH: S GED: R3 M1 L2 SVP: 2 DLU: 86”
(emphasis added), which indicates that it has a reasoning rating of 3.

9

V. Analysis
In his motion, Plaintiff argues that: (1) the ALJ’s finding, at step five of the SEP, that
there are sufficient numbers of jobs in the national economy that Plaintiff can perform, is not
supported by substantial evidence; and (2) the ALJ did not properly evaluate the opinion of his
treating counselor, Paul Weeks, LPCC. [Doc. 19 at 1]. Defendant responds that: (1) VE
Trost’s testimony is rendered immaterial by the Medical-Vocational grid rules, so the ALJ’s
reliance on that testimony was, at most, harmless error; and (2) the ALJ stated adequate reasons for
his rejection of Mr. Weeks’ opinions. [Doc. 23 at 2].

In his reply, Plaintiff asserts that the ALJ

only considered evidence that supported a negative finding, and that the ALJ bears the burden of
establishing the existence of jobs in the economy that Plaintiff can perform.. [Doc. 24].
A. The ALJ’s Consideration of VE Trost’s Testimony
Plaintiff contends that the ALJ erred by relying on VE Trost’s testimony because that
evidence is unreliable. [Doc. 19 at 20]. Defendant argues that, whether or not Plaintiff’s assertion
is correct, it is irrelevant to the ALJ’s finding that Plaintiff is not disabled, because the
Medical-Vocational Guidelines (hereinafter “Grid Rules”), 20 C.F.R. Pt. 404, Subpt. P, App. 2,
direct a finding of “not disabled,” without the need for vocational evidence. [Doc. 23 at 15-17].
Plaintiff did not reply to this argument in his reply. [Doc 24].
Despite Plaintiff’s failure to respond to it, the Court rejects Defendant’s argument that the
Grid Rules render harmless any error by the ALJ in relying on VE Trost’s testimony. It is true, as

10

Defendant contends, that Plaintiff’s exertional level, age, education, and previous work
experience, would result in a finding of “not disabled,” if the Grid Rules were applicable. 8 It is
also true that the Grid Rules reflect “administrative notice” that there are sufficient numbers of
unskilled jobs available in the national economy, such that a “not disabled” directive in a Grid
Rule is based on the sufficiency of those numbers. 20 C.F.R. § Pt. 404, Subpt. P, App. 2,
§ 200.00(b). However, “[w]here any one of the findings of fact does not coincide with the
corresponding criterion of a rule, the rule does not apply in that particular case,” and “full
consideration must be given to all of the relevant facts of the case.” Id. at 200.00(a). In addition,
the Grid Rules specifically cover only exertional job requirements and, where a claimant has
“non-exertional” limitations, the rules do not dictate a result. Id. at 200.00(e). In this case,
Plaintiff has non-exertional impairments that render Rule 201.19 non-dispositive. 9
Plaintiff asserts that the vocational evidence given by VE Trost is “unreliable,” both
because at least one of the representative jobs she selected is inconsistent with Plaintiff’s limitation
to “simple” work, 10 and because the job numbers she gave for individual jobs actually included
entire categories of jobs, including jobs that Plaintiff cannot perform.

[Doc. 19 at 20-24].

8

Grid Rule 201.19 includes individuals who are between the ages of 45 and 49, have “limited or less”
education, developed skills from previous work that are not transferable, and are limited to sedentary work, and directs
a finding of “not disabled.”
9

Apparently, the ALJ felt that Plaintiff did not meet the specific criteria of any Grid Rule, or he would not
have needed to obtain VE testimony.
10

As already noted (supra, at 9), two out of the three representative jobs selected by VE Trost have reasoning
ratings of 3.

11

Effectively, Plaintiff contends that there is a conflict between VE Trost’s testimony and the DOT
(Doc. 19 at 23), as did the Plaintiff in Hackett v Barnhart, 395 F.3d 1168 (10th Cir. 2005). In
Hackett, the plaintiff’s RFC included a limitation to “simple and routine work tasks.” Id. at 1171.
As in the present case, the VE in Hackett selected surveillance system monitor, which has a
reasoning rating of 3, as one of the representative jobs that the plaintiff could perform. The
Hackett court found that a “limitation [to simple and routine work tasks] seems inconsistent with
the demands of level-three reasoning.” Id. at 1176 (citing Lucy v. Chater, 113 F.3d 905, 909 (8th
Cir. 1997) as “rejecting contention that a claimant limited to following only simple instructions
could engage in the full range of sedentary work because many unskilled jobs in that category
require reasoning levels of two or higher”). Concluding that “level-two reasoning appears more
consistent with Plaintiff’s RFC,” the Hackett court reversed and remanded “to allow the ALJ to
address the apparent conflict.” Id. In so doing, the court deemed it “unfortunate” that so much
time had passed since the ALJ hearing, noting that the plaintiff had been represented by counsel
who could have raised the issue, but did not, and thereby deprived the ALJ of an opportunity to
explain or change his ruling. Id. This Court agrees, and considers counsel’s failure to raise the
issue in this case prior to appeal to be equally “unfortunate.”
Hackett was the reason given in two other decisions from this District that also remanded
for consideration of the conflict between a restriction to “simple” work and a representative job
with a reasoning level of 3. See Bier v. Colvin, 15 F.Supp.3d 1143 (D. N.M. 2014) and Holt v.
Colvin, CIV 14-0024 KBM (April 16, 2015) (unpublished). In Bier, the Commissioner asserted
that the restrictions in that case were “not exactly the same,” but failed to argue that the difference
was “meaningful.” Bier, 15 F.Supp.3d at 1148, n. 4. In this case, although an argument might

12

have been made for distinguishing Hackett, it was not and, as the Commissioner has chosen not to
assert such an argument, this Court will not do so on her behalf. As was noted in Bier, Hackett “is
binding precedent in this circuit.” Id. at 1148.
Plaintiff also contends that the job numbers stated by VE Trost are “unreliable” because the
numbers she gave actually cover job categories, rather than specific jobs, and that those categories
include jobs that Plaintiff cannot perform. [Doc. 19 at 20-22]. Therefore, “[t]here is no way of
reliably verifying the accuracy of the number of jobs available in the national economy for the
[representative] occupations.” Id. at 20. As such, Plaintiff argues that the ALJ’s finding that
“there are jobs that exist in significant numbers in the national economy that [Plaintiff] can
perform” is not supported by substantial evidence. 11

The Court declines to consider this

argument because it depends on facts that were not developed at the ALJ hearing, and remands this
case to the Commissioner for additional consideration of the availability of jobs that Plaintiff can
perform.

11

Plaintiff also argues, based on record evidence from other SSA cases, that the SSA acknowledges that the
use of category numbers instead of specific job numbers is not substantial evidence. [Doc. 19 at 24]. The Court
declines to address this contention, however, both because job availability is a highly personalized inquiry and
because Plaintiff’s counsel, though clearly fully aware of this issue, did not fairly raise it at the agency level.
Plaintiff’s submission of a motion to compel production, including an objection to certain testimony by the VE, should
and could have been reiterated and explained at the hearing, and it appears that counsel made a conscious decision not
to do so. This eliminated any possibility for the VE to provide additional information and/or for the ALJ to make
specific findings regarding job availability, erosion of exertion level, etc. In addition, this Court will not assume,
based on extraneous evidence, that VE Trost’s numbers do not accurately represent the specified jobs. In any event,
this is an issue that may be affected by the proceedings on remand and, therefore, need not be addressed. See, e.g.,
Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).

13

B. The ALJ’s Consideration of the Opinion of Paul Weeks, LPCC
Plaintiff contends that the ALJ failed to properly explain his rejection of the opinion of
treating counselor Paul Weeks. [Doc. 19 at 15-20]. Defendant responds that the reasons given by
the ALJ were reasonable and should be affirmed. [Doc. 23 at 9-14]. The Court agrees.
Mr. Weeks first met and began counseling Plaintiff in June 2013. [Doc. 13-25 at 44-55].
On July 28, 2015, Mr. Weeks filled out a medical assessment form on Plaintiff’s ability to perform
mental work-related activities. 12 [Doc. 13-28 at 19-20]. As a Licensed Professional Clinical
Counselor (LPCC), Mr. Weeks is not considered to be an “acceptable medical source.” See
20 C.F.R. § 404.1513(a). The ALJ assigned “little weight” 13 to Mr. Weeks’ medical source
statement forms dated July 28, 2015, finding that “[t]he severity of symptoms indicated on [Mr.
Weeks’] forms is not consistent with Mr. Weeks’ treatment notes or with other evidence.”
[Doc. 13-12 at 19]. In particular, the ALJ noted that several sources had indicated that Plaintiff
engaged in cutting, hauling, and selling of firewood, and that Plaintiff had admitted that he felt he

12

The form used by Mr. Weeks for his assessment of Plaintiff is a check-box form on which the evaluator
chooses between “slight,” “moderate,” and “marked” limitations with respect to listed job activities It is similar,
though not identical, to Section I of the standard MRFC form used by the Social Security Administration
(SSA-4734-F4-SUP). The most significant difference between Mr. Weeks’ form and the standard MRFC form is
that, unlike SSA-4734-F4-SUP, the form used by Mr. Weeks did not include Section III, which is where the evaluator
is expected to record “elaborations” on the “summary conclusions” in Section I. Section III is considered to be the
RFC portion of the form, where the evaluator more fully discusses his or her findings in Section I. See POMS DI
25020.010.B.1 available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010 (site last visited March 10,
2017). The purpose of Section I is “chiefly to have a worksheet” for the evaluator. Id. Another difference is that
the standard MRFC has five choices per ability, rather than the three on Mr. Weeks’ form, which are “not significantly
limited,” “moderately limited,” “markedly limited,” “no evidence of limitation in this category,” and “not ratable on
available evidence.”
13

Assigning “little weight” to a medical source’s opinion effectively rejects it. See, e.g., Chapo v. Astrue,
682 F.3d 1285, 1291 (10th Cir. 2012).

14

was very healthy because of his activity level. Id. at 19-20 (citing Doc. 13-29 at 13-15, 34). In
addition, the ALJ considered that Plaintiff took care of his dogs, rabbits, chickens, and sick
girlfriend” and “reported that he had no problems with household chores, except that he could not
do heavy lifting,” that he cooked and shopped for food, had income from odd jobs, fished, walked
his dogs, and “exercised weekly ‘doing work over his head.’” Id. (citing Doc. 13-25 at 19).
Finally, the ALJ noted that Mr. Weeks had assessed GAF scores for Plaintiff that were inconsistent
with the “many ‘marked’ limitations [Mr. Weeks] indicated on the forms. Id.
Although Mr. Weeks is a “treating source,” he is not an “acceptable medical source” and,
therefore, his opinion is not entitled to controlling weight. See Soc. Sec. Rep. 06-03P at *2.
Mr. Weeks did not begin seeing Plaintiff until several years after Plaintiff’s alleged disability onset
date, and did not prescribe his medications.

The ALJ considered Mr. Weeks’ notes and

assessments along with evidence from a variety of other sources. His conclusion was that
Mr. Weeks’ 2015 assessments were inconsistent with both other record evidence and Mr. Weeks’
own treatment notes. In fact, not a single acceptable medical source determined that Plaintiff’s
mental impairments caused marked restriction of his work abilities.

With respect to

“nonacceptable” medical sources, an “ALJ’s decision is sufficient if it permits [the court] to
‘follow the adjudicators’ reasoning.’” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir.
2012) (quoting SSR 06-03P at *6). Despite Plaintiff’s disagreement with the ALJ’s decision to
accord little weight to Mr. Weeks’ opinions, the Court is able to follow the ALJ’s reasoning and
cannot conclude that the decision is not supported by substantial evidence. Therefore, the Court
finds that this argument for reversal is without merit and should be denied.

15

VI. Conclusion
For the reasons stated above, the Court FINDS that Plaintiff’s claim of error with respect to
the ALJ’s consideration of the opinion of Paul Weeks, LPCC is without merit and should be
denied. However, pursuant to Hackett v. Barnhart, this case is remanded for reconsideration of
the availability of jobs that Plaintiff can perform.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum (Doc. 19), is DENIED, in part, and GRANTED, in
part, and the Commissioner’s decision in this case is REMANDED for additional consideration of
evidence at step five of the SEP.

A final order will be entered concurrently with this

Memorandum Opinion and Order.
IT IS SO ORDERED.
_________________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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