McDaniel v. Social Security Administration
ORDER by Magistrate Judge Gregory J. Fouratt GRANTING 12 Motion to Remand. (kdj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Civ. No. 16-226 GJF
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
THIS MATTER is before the Court on Plaintiff’s “Memorandum in Support of Her
Motion to Reverse and [Remand] the Commissioner’s Final Decision” (“Motion”), filed on
October 7, 2016. ECF No. 12. The Commissioner responded on December 9, 2016. ECF No.
17. Plaintiff replied on January 3, 2017. ECF No. 18. Having meticulously reviewed the
briefing and the entire record, the Court finds that Plaintiff’s Motion is well taken and that the
Administrative Law Judge’s (“ALJ’s”) ruling should be REVERSED and REMANDED.
Therefore, and for the further reasons articulated below, the Court will GRANT Plaintiff’s
Plaintiff was born on December 17, 1991, in the Stanford University Children’s Hospital
in Palo Alto, California. Administrative R. (“AR”) 1034. In 2010, Plaintiff graduated from a
California high school and received a regular diploma, although her mother reports that she
received special services. AR 36, 1234. She has no past relevant work. AR 41, 289.
Plaintiff filed an application for Child Disability Benefits (“CDB”) and Supplemental
Security Income (“SSI”) on August 15, 2011.
AR 103, 117.
Plaintiff claimed disability
beginning on December 17, 1991 (later amended to January 1, 2010), based on fetal alcohol and
cocaine syndromes, uterine growth retardation, attention deficit hyperactivity disorder
(“ADHD”), mood disorder (not specified), psychosocial stressors, scoliosis, learning disorder
(not specified), headaches, and dizziness. AR 32, 103, 117. Plaintiff had previously filed CDB
and SSI claims in 2010 which were denied. AR 104, 118. The Social Security Administration
(“SSA”) denied Plaintiff’s 2011 application initially on January 6, 2012 [AR 116, 130], and upon
reconsideration on October 11, 2012. AR 146, 162. At her request, Plaintiff received a de novo
hearing before ALJ Michelle Lindsay on May 2, 2014, at which Plaintiff, her attorney, her
mother, and a vocational expert (“VE”) appeared. AR 51-102. On August 5, 2014, the ALJ
issued her decision, finding that Plaintiff was not disabled within the meaning of the Social
Security Act (“the Act”). AR 20-44. Plaintiff appealed to the SSA Appeals Council, but it
declined review on January 19, 2016. AR 1-3. As a consequence, the ALJ’s decision became
the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2017).
Plaintiff timely filed her appeal with this Court on March 24, 2016. ECF No. 1.
Plaintiff advances two grounds for relief.
First, she argues that the ALJ erred by
impermissibly “picking and choosing” only those portions of uncontradicted medical opinions
that led to a finding of nondisability. Pl.’s Mot. 7-11, ECF No. 12. Additionally, she alleges that
substantial evidence does not support the ALJ’s step five determination. Id. at 12-14.
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)). A court should meticulously review the entire record but should neither reweigh 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).
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).
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 residual functional capacity
(“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 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).
THE ALJ’S DECISION
The ALJ issued her decision on August 15, 2014. AR 44. At step one, she found that
Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of
January 1, 2010. AR 32. At step two, the ALJ found Plaintiff’s Type I diabetes mellitus and
scoliosis to be severe impairments. AR 22. In contrast, the ALJ found Plaintiff’s mood disorder
to be non-severe. AR 22.
At step three, the ALJ found that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 23-24. The ALJ began with Plaintiff’s mood disorder, which she
considered under “the four broad functional areas set out in the disability regulations for
evaluating mental disorders” and in Listing 12.00(C). 2 In the first functional area, activities of
daily living (“ADLs”), the ALJ found Plaintiff had no limitation. She based this finding on
Plaintiff’s wide variety of ADLs, which included preparing meals on a daily basis, vacuuming,
doing laundry, washing dishes, driving a car, shopping for groceries, walking the dog, feeding
horses, and bathing and dressing herself. AR 23. In the second area, social functioning, the ALJ
found that Plaintiff had “mild limitation.” AR 23. The ALJ reached this conclusion based on
Plaintiff’s admission that she “spent time with others on the telephone or on the computer,” but
weighed it alongside Plaintiff’s competing admission that she “had problems getting along with
Listing 12.00(C) does not refer to a specific mental impairment, but rather, to the types of evidence that the SSA
considers in evaluating all mental disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A1, § 12.00(C) (2017). This
includes evidence from, inter alia: (1) acceptable medical sources; (2) those who know the claimant, especially
regarding a claimant’s activities of daily living; (3) school and work; (4) sources demonstrating longitudinal
evidence of a mental disorder; and (5) sources substantiating a claimant’s faculty for functioning in unfamiliar and
in supportive situations. Id.
family, friends[,] and neighbors” and that “she “was unstable and concerned about what others
were doing.” AR 23. Additionally, the ALJ considered Plaintiff’s mother’s statement that it was
difficult for Plaintiff to make friends. AR 23. Third, as to Plaintiff’s concentration, persistence,
and pace, the ALJ also found Plaintiff to have a mild limitation. She based this on Plaintiff’s
reports that “she could follow written instructions better than verbal instructions” and “had a
hard time following and remembering verbal instructions.” AR 23. Lastly, regarding episodes of
decompensation, the ALJ found “little in the record or [Plaintiff’s] testimony that would indicate
the claimant has suffered from any episodes of decompensation.” AR 23. Thus, because
Plaintiff’s “medically determinable mental impairment causes no more than ‘mild’ limitation in
any of the first three functional areas and ‘no’ episodes of decompensation which have been of
extended duration,” the ALJ found that Plaintiff’s mental impairment was both non-severe and
insufficient to qualify as presumptively disabling under a relevant Listing. AR 23-24.
Next, the ALJ considered Plaintiff’s physical impairments under relevant Listings. She
began by evaluating Plaintiff’s lower back pain under Listing 1.04 3 for disorders of the spine.
To qualify as disabled under Listing 1.04, a claimant must suffer from one or more of the following:
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);
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;
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.
Id. § 1.04.
The ALJ found that “[t]he medical evidence does not establish the requisite evidence of nerve
root compression, spinal arachnoiditis or lumbar spinal stenosis” required to satisfy the Listing.
“Moreover,” she opined, “the medical evidence does not support [a finding that
Plaintiff’s] back disorder has resulted in an inability to ambulate effectively, as defined in
Accordingly, the ALJ found Plaintiff did not meet or
medically equal the requirements of Listing 1.04.
The ALJ then considered Plaintiff’s Type I diabetes under Listing 9.00 for endocrine
disorders. Looking specifically to Listing 9.00(B)(5), 4 the ALJ found that “the medical evidence
failed to support the necessary requirements or severity level for that listing.”
“Therefore,” she concluded, Plaintiff’s “diabetes does not meet the listing.” AR 24.
Because none of Plaintiff’s impairments satisfied an applicable Listing, the ALJ moved
on to step four and assessed Plaintiff’s RFC. AR 24-43. “After careful consideration of the
entire record,” the ALJ determined that “[Plaintiff] has the residual functional capacity to
The SSA defines endocrine disorders as medical conditions that cause a hormonal imbalance. It further describes
and evaluates diabetes as follows:
Diabetes mellitus and other pancreatic gland disorders disrupt the production of several hormones,
including insulin, that regulate metabolism and digestion. Insulin is essential to the absorption of
glucose from the bloodstream into body cells for conversion into cellular energy. The most
common pancreatic gland disorder is diabetes mellitus (DM). There are two major types of DM:
type 1 and type 2. Both type 1 and type 2 DM are chronic disorders that can have serious disabling
complications that meet the duration requirement. Type 1 DM—previously known as “juvenile
diabetes” or “insulin-dependent diabetes mellitus” (IDDM)—is an absolute deficiency of insulin
production that commonly begins in childhood and continues throughout adulthood. Treatment of
type 1 DM always requires lifelong daily insulin. With type 2 DM—previously known as “adultonset diabetes mellitus” or “non-insulin-dependent diabetes mellitus” (NIDDM)—the body's cells
resist the effects of insulin, impairing glucose absorption and metabolism. Treatment of type 2
DM generally requires lifestyle changes, such as increased exercise and dietary modification, and
sometimes insulin in addition to other medications. While both type 1 and type 2 DM are usually
controlled, some persons do not achieve good control for a variety of reasons including, but not
limited to, hypoglycemia unawareness, other disorders that can affect blood glucose levels,
inability to manage DM due to a mental disorder, or inadequate treatment.
Id. § 9.00(B)(5).
perform the full range of light work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).”
Adverse Credibility Finding
To develop Plaintiff’s RFC, the ALJ relied on two principal grounds. First, the ALJ
rendered an adverse credibility finding against Plaintiff, opining that Plaintiff’s “statements
concerning the intensity, persistence[,] and limiting effects of [her] symptoms are not entirely
credible.” AR 26. Several bases informed the ALJ’s findings, and chief among them were
Plaintiff’s own statements. The ALJ recounted that, on an undated disability report [AR 30916], Plaintiff claimed that she suffered from “fetal alcohol, fetal cocaine, uterine growth
retardation, attention deficit/hyperactivity disorder (ADHD), mood disorder, psychosocial
stressors, scoliosis, learning disorder, headaches and dizziness which limits her ability to work.”
AR 25. Plaintiff alleged that these conditions affected, among other things, 5 “her memory,
completing tasks, her concentration, following instructions, [ ] getting along with others,” and
moreover, that “her diabetes affected her memory, concentration[,] and completing tasks.” AR
25. “Despite these allegations,” the ALJ remarked, Plaintiff “also stated on the same function
report that she could prepare her own meals on a daily basis, fold clothes, put dishes away[,] and
pull weeds.” AR 25. In the same report, Plaintiff also “stated she could go shopping in stores
for groceries and clothes and she could drive a car.” AR 25. In a separate function report dated
August 26, 2012 [AR 345-52], Plaintiff additionally noted “she had no problems with her
personal care, such as getting dressed or taking a bath . . . [and] that her hobbies and interests
included horses, goats, music, IPOD and being on the computer,” and further, “that she did those
hobbies on a daily basis and she did them fairly well.” AR 25. The ALJ also suggested Plaintiff
Because Plaintiff’s instant appeal centers on the ALJ’s assessment of her mental, non-exertional impairments, see
Pl.’s Mot. 7-14, ECF No. 12, this Order will be similarly focused, despite the ALJ discussing, in detail, Plaintiff’s
“has not been entirely compliant in taking prescribed medications, which suggests that the
symptoms may not have been as limiting as [Plaintiff] has alleged in connection with this
application, which weakens her credibility.” AR 25.
Other inconsistencies in Plaintiff’s statements factored into the ALJ’s credibility finding.
Among these, the ALJ recalled Plaintiff’s testimony that she stopped riding horses in November
2013, and measured that testimony against “an initial assessment comp[le]ted on June 3, 2014,
[where Plaintiff] stated that her current exercise habits included occasional walks or riding
horses.” AR 26 (citing AR 1220). Plaintiff’s testimony also conflicted with that of her mother,
who “testified that her daughter still rode horses, but [not] as much as she used to.” AR 26. In a
similar instance, Plaintiff testified “that she barely used the computer to check her email and that
was about it.” AR 26. The ALJ observed, however, that “it was noted in the medical evidence
that [Plaintiff] had done [computer] research because she thought she had Asperger’s syndrome
instead of attention deficit disorder or obsessive-compulsive disorder.” AR 226 (citing AR
The same document recorded that Plaintiff had “printed off some information on
Asperger’s from the Internet and she presented with a list of symptoms she had checked off.”
AR 26. Although the ALJ cautioned that these inconsistent statements “may not be the result of
a conscious intention to mislead,” nevertheless, she opined, “the inconsistencies suggest the
information provided by the claimant generally may not be entirely reliable.” AR 26.
The ALJ also reasoned that Plaintiff’s credibility was diminished by the declarations of
her mother, Mary McDaniel. Ms. McDaniel completed a Third Party Function Report on August
26, 2012 [AR 337-41], and therein ratified many of her daughter’s statements, including the fact
that Plaintiff “did not have any problems with her personal care, such as getting dressed or taking
a bath.” AR 25. Ms. McDaniel also observed that Plaintiff “could prepare her own meals on a
daily basis, do laundry, some weeding . . . vacuum[ ] her room . . . drive a car, and go shopping
in stores for items.” AR 25. She also recognized that Plaintiff could “go horseback riding and
that she attended church activities.” AR 25.
Lastly, the ALJ looked to other portions of the record to substantiate an adverse
In one example, the ALJ looked to Plaintiff’s wage records, which
demonstrated that Plaintiff had earned $1,492.02 in 2011, $2,034.02 in 2012, and $6,065.48 in
2013. AR 25 (citing AR 254-56). In the ALJ’s opinion, “[t]he fact that the impairments did not
prevent the claimant from working at that time strongly suggests that it would not currently
prevent her from working now, which weakens her credibility.” AR 25. In another instance, the
ALJ highlighted a disability report evincing that Plaintiff left her place of employment in 2011
not on account of her impairments, but because of a residential move. AR 26 (citing AR 298).
The ALJ opined that “this shows the [Plaintiff] stopped working for reasons not related to the
allegedly disabling impairments.” AR 26. For these and the other reasons detailed above, the
ALJ returned an adverse credibility determination against Plaintiff.
Dr. R. Paxton, M.D. – significant weight
Along with Plaintiff’s adverse credibility finding, the ALJ relied on a host of medical
opinions to determine Plaintiff’s RFC. In fact, the ALJ ultimately drew on no less than five
medical opinions just to assess Plaintiff’s mental impairments. The first of these was the opinion
of Dr. R. Paxton, M.D., a psychiatrist and specialist in disability determination. On December
10, 2010, Dr. Paxton completed a standard SSA “Psychiatric Review Technique” (“PRT”) form
as well as a Mental Residual Function Capacity Assessment (“MRFCA”). AR 863-876. After
reviewing Plaintiff’s medical history in light of her anxiety-related disorders [AR 863], Dr.
Paxton concluded on the MRFCA that Plaintiff had no significant limitation in the four
categories and twenty subcategories measured by the MRFCA, 6 with three exceptions. These
three exceptions – each of which was identified as a moderate limitation – included:
The SSA has developed four categories and twenty subcategories in which non-examining consultative medical
professionals evaluate claimants and assign summary conclusions. It should be noted, however, that these summary
conclusions serve only as an aid to the evaluating medical professional’s assessment of residual functional capacity.
When reviewing an ALJ’s decision on appeal, the Tenth Circuit has guided reviewing courts to compare an ALJ’s
findings to a medical professional’s narrative on residual functional capacity, not to her summary conclusions of
moderate limitations. See Smith v. Colvin, 821 F.3d 1264, 1269 n.2 (10th Cir. 2016)
In each of these four categories, the medical professional may rate the claimant as: (1) showing no evidence
of limitation in the category; (2) not significantly (or mildly) limited; (3) moderately limited; or (4) markedly
limited. There is also a fifth option for the professional to select if the claimant is not ratable in a given category
based on the available evidence. The categories are as follows:
(A) Understanding and memory
(1) The ability to remember locations and work-like procedures
(2) The ability to understand and remember very short and simple instructions
(3) The ability to understand and remember detailed instructions
(B) Sustained concentration and pace
(4) The ability to carry out very short and simple instructions
(5) The ability to carry out detailed instructions
(6) The ability to maintain attention and concentration for extended periods
(7) The ability to perform activities within a schedule, maintain regular attendance, and
be punctual within customary tolerances
(8) The ability to sustain an ordinary routine without special supervision
(9) The ability to work in conjunction with or proximity to others without being
distracted by them
(10) The ability to make simple work-related decisions
(11) The ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods
(C) Social interaction
(12) The ability to interact appropriately with the general public
(13) The ability to ask simple questions or request assistance
(14) The ability to accept instructions and respond appropriately to criticism from
(15) The ability to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes
(16) The ability to maintain socially appropriate behavior and to adhere to basic standards
of neatness and cleanliness
(17) The ability to respond appropriately to changes in the work setting
(18) The ability to be aware of normal hazards and take appropriate precautions
(19) The ability to travel in unfamiliar places or use public transportation
(20) The ability to set realistic goals or make plans independently of others.
(1) Subcategory (A)(3) - Understanding and memory: the ability to understand
and remember detailed instructions;
(2) Subcategory (B)(5) - Sustained concentration and persistence: the ability to
carry out detailed instructions; and
(3) Subcategory (C)(12) - Social interaction: the ability to interact appropriately
with the general public.
AR 874-75. Dr. Paxton determined that Plaintiff “has the capacity to do simple level work at
two hour intervals in a non[-]public setting. Concentrative capacity is sufficient. Adaptive
capacity is also sufficient.” AR 876. The ALJ assigned significant weight to Dr. Paxton’s
opinion, concluding that his findings were “persuasive . . . as they are well supported by
explanation and by the medical evidence, and they reflect consideration of the entire medical
record[ ] by a specialist who is familiar with [SSA] regulations.” AR 36.
Dr. Robert Krueger, Ph.D. – moderate weight
Consultative examining psychologist Dr. Robert Krueger, Ph.D., examined Plaintiff on
December 1, 2011. AR 1011-17. Later, on April 16, 2014, he completed a questionnaire
concerning Plaintiff’s mental impairments for the instant disability review. AR 1142-44.
At the 2011 consultation, Dr. Krueger administered the Wechsler Adult Intelligence
Scale – Fourth Edition (“WAIS-IV”) test and determined that Plaintiff had a full scale IQ of 108.
AR 37. Plaintiff “scored at an average to high average level with both verbal and performance
skills[,] . . . did well with vocabulary and work comprehension skills[,] and she also did well
with abstract reasoning.” AR 37. Although the doctor noted that Plaintiff “did not appear to
qualify for having any major cognitive disorder at that time,” he did “diagnose[ ] the claimant
with a mood disorder – not otherwise specified.” AR 37.
Along with the diagnosis of mood disorder, Dr. Krueger “determined that [Plaintiff] had
some significant functional impairment.” AR 37. This derived primarily from Plaintiff’s Global
See AR 112-14, 126-28, 142-45, 159-61, 874-75.
Assessment of Functioning (“GAF”) score, which Dr. Krueger assessed to be in the range of 50
to 55. A GAF score in that range “indicates serious to moderate symptoms or any serious
impairment to moderate [impairment] on social, occupational[,] or school functioning.” AR 37
Thus, while Dr. Krueger found that Plaintiff “did have the intellectual
capacity to understand and remember either simple or complex work instruction with little or no
impairment,” he noted that Plaintiff “appeared to be somewhat socially immature,” and, at the
time of the evaluation, “might not possess independent living skills.” AR 37-38. Dr. Krueger
further found Plaintiff to have moderate impairments with: (1) maintaining pace and persistence
in a work environment, (2) in relationships with coworkers, supervisors, and the general public,
(3) traveling to distant places alone, and (4) being aware of and reacting appropriately to dangers
in work environments. AR 1016. Notably, Dr. Krueger also concluded that “[b]ecause of
behavior problems and mood disorder, [Plaintiff] may have moderate and at times marked
impairment with following instructions.” AR 1016 (emphasis added).
When he completed a questionnaire on Plaintiff’s mental impairments in 2014, Dr.
Krueger opined Plaintiff “had limitations in her ability to perform work on a full time basis and
that her psychologically based symptoms would cause problems for her maintaining regular
attendance and being punctual within customary tolerances.” AR 38. He further concluded that
Plaintiff would miss work or arrive late an average of five days per month. AR 38. The ALJ
assigned only moderate weight to the opinion of Dr. Krueger, reasoning that he “only saw
[Plaintiff] once, and he based his answers on the questionnaire on that [one] meeting.” AR 38.
Dr. Elizabeth Chiang, M.D. – moderate weight
The ALJ also accorded moderate weight to the opinion of non-examining state medical
consultant Dr. Elizabeth Chiang, M.D. AR 38. On January 4, 2012, at the initial determination
stage of the instant disability claim, Dr. Chiang reviewed Plaintiff’s medical records and
assessed her MRFCA in the four broad categories developed by the SSA along with their twenty
subcategories. 7 AR 112-14, 126-28. In many of these, Dr. Chiang either found Plaintiff to
suffer no limitations, or that no evidence existed to support a limitation. AR 112-13, 126-27.
She did, however, assess the following four moderate limitations:
(1) Subcategory (C)(12) - Social interaction: the ability to interact appropriately
with the general public;
(2) Subcategory (C)(14) - Social interaction: the ability to accept instructions and
respond appropriately to criticism from supervisors;
(3) Subcategory (C)(15) - Social interaction: the ability to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes;
(4) Subcategory (D)(20) - Adaptation: the ability to set realistic goals or make
plans independently of others.
AR 112-13, 126-27.
The ALJ emphasized that Dr. Chiang found no limitation in Plaintiff’s ability to: (1)
carry out very short and simple instructions, (2) carry out detailed instructions; (3) perform
activities within a schedule, (4) maintain regular attendance, and (5) be punctual within
customary tolerances. AR 38. Nevertheless, the ALJ recognized that Dr. Chiang found areas of
both mild and moderate limitation in Plaintiff’s mental functions. As to the former, the ALJ
discussed Dr. Chiang’s conclusion that Plaintiff “was mildly limited in her activities of daily
living and in maintaining her concentration, persistence [and] pace.” 8
mentioned Dr. Chiang’s conclusion that Plaintiff “was moderately limited in her social
Dr. Chiang actually found no limitation in the category of understanding and memory, and therefore, did not assess
any subcategory individually. AR 112, 126.
This conclusion derives from Dr. Chiang’s PRT assessment for presumptive disability at step three of the
sequential evaluation process. See AR 108, 122.
functioning,” 9 as well as in “her ability to respond appropriately to changes in the work setting.”
Dr. Chiang found Plaintiff, on balance, to be “capable of semi-skilled work” at the “light
exertional level.” AR 38. The ALJ noted this, but did observe that Dr. Chiang recommended “a
workplace with well-defined expectations and limited interpersonal interaction.” AR 38. The
ALJ assigned moderate weight to Dr. Chiang’s opinion, as she found it to be “persuasive” and
“well supported by explanation and the medical evidence.”
Moreover, the ALJ
explained that the opinion “reflect[ed] consideration of the entire medical record[ ] by a
specialist who is familiar with Social Security regulations.” AR 38.
Dr. Mary Loescher, Ph.D. – moderate weight
On January 6, 2012, the SSA denied Plaintiff’s initial-stage request for CDB and SSI
benefits. AR 116, 130. Plaintiff requested reconsideration on March 9, 2012, indicating that her
impairments continued to prevent her from engaging in substantial gainful activity. AR 174.
Based on that request, the SSA ordered a second examination of Plaintiff’s mental functions, and
on September 25, 2012, which was performed by consultative examining psychologist Dr. Mary
Loescher, Ph.D. AR 1128-31.
Following a review of Plaintiff’s medical records, an interview of Plaintiff’s mother, and
an examination of Plaintiff herself, Dr. Loescher diagnosed Plaintiff with adjustment disorder
and mood disorder on rule-out bases. AR 1131. Dr. Loescher opined that Plaintiff was mildly
impaired in three areas: (1) handling basic instructions, (2) working in a structured setting, and
(3) understanding, remembering, and following through on basic and complex instructions. AR
1131. Additionally, she believed Plaintiff was moderately impaired in her “ability to function in
a work setting on a consistent basis due to her difficulties interacting with peers and the
This citation is also taken from Dr. Chiang’s step three assessment. See AR 108, 122. See also supra, note 7.
possibility that she would not be able to recognize dangers in a work setting.” AR 1131. She
explained that Plaintiff “appears to have some depression and possibly some anxiety secondary
to the loss of her sister and the changes in her life due to the relocation from California.” AR
Yet, she noted that Plaintiff had previously demonstrated “average to high average
cognitive abilities” and that her “working memory scores are in the high average range.” AR
1131. The ALJ assigned moderate weight to Dr. Loescher’s opinion, finding it “persuasive” and
“well supported by the medical evidence.” AR 40.
Dr. Cathy Simutis, Ph.D. – significant weight
Lastly, the ALJ assigned significant weight to the opinion of Dr. Cathy Simutis, Ph.D., a
non-examining state psychologist. AR 40-41. Dr. Simutis reviewed Plaintiff’s records at the
reconsideration stage, and therefore drew on the greatest body of medical records when crafting
Plaintiff’s PRT and MRFCA. AR 140-45, 156-161. She, like Dr. Chiang at the initial stage,
evaluated Plaintiff in the four categories developed by the SSA along with their twenty subparts.
See supra, pp. 13-14; see also supra, note 6. In most subcategories, Dr. Simutis found Plaintiff
to suffer from no significant limitation. In fact, Dr. Simutis found Plaintiff to possess moderate
limitations in only three areas:
(1) Subcategory (B)(5) - Sustained concentration and persistence: the ability to
carry out detailed instructions;
(2) Subcategory (B)(6) – Sustained concentration and persistence: the ability to
maintain attention and concentration for extended periods; and
(3) Subcategory (C)(12) - Social interaction: the ability to interact appropriately
with the general public.
AR 142-44, 158-60.
The ALJ, however, made no mention of the moderate limitations assigned by Dr.
Simutis. AR 40-41. Instead, the ALJ focused on those areas where Dr. Simutis had found
Plaintiff to not be significantly limited, including her ability to: (1) carry out very short and
simple instructions, (2) perform activities with a schedule, maintain regular attendance, and be
punctual within customary tolerances, (3) get along with coworkers or peers without distracting
them or exhibiting behavioral extremes, and (4) maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness. AR 40. Furthermore, the ALJ focused on
Dr. Simutis’s finding that Plaintiff was only “partially credible[,] as her function report indicated
that she shopped, drove[,] and went to a church group – weekly, she was in school taking math
and English classes at CNM.” AR 41. Additionally, the ALJ cited with approval Dr. Simutis’s
conclusion that Plaintiff generally retained the “capacity for semi-skilled work.” AR 41. The
ALJ found the opinion of Dr. Simutis “persuasive” and accorded it “significant weight” as it was
“well supported by explanation and by the medical evidence, and [it] reflect[ed] consideration of
the entire medical record[ ] by a specialist who is familiar with Social Security regulations.” AR
The ALJ concluded, based on Plaintiff’s adverse credibility finding and these five
medical opinions, that Plaintiff’s “residual functional capacity assessment is supported by the
objective medical evidence contained in the record.” AR 43.
She reasoned that “[t]reatment
notes in the record do not sustain the [Plaintiff’s] allegations of disabling conditions.” AR 43.
In addition, she found that Plaintiff “does experience some levels of physical limitations but only
to the extent described in the residual functional capacity listed above.” AR 43.
In the second phase of step four, the ALJ found that Plaintiff had no past relevant work.
AR 43. As a consequence, she omitted the comparison between Plaintiff’s assigned RFC and
past relevant work that would ordinarily occur in the third phase of step four. AR 43. Instead,
the ALJ proceeded to step five. There, the ALJ explained that because Plaintiff “has solely
nonexertional limitations, section 204.00 in the Medical Vocational Guidelines [commonly
referred to as ‘the grids’] provides a framework for analysis.” AR 43. And, “[b]ased on a
residual functional capacity for the full range of light work, considering [Plaintiff’s] age,
education, and work experience, a finding of ‘not disabled’ is directed by Medical-Vocational
Rule 202.20.” AR 43. Finally, the ALJ found that Plaintiff had not been under a disability, as
defined by the Act, during the relevant time period and denied her claim. AR 44.
Plaintiff’s Motion advances two allegations of error, but neither distills the terminal
infirmity of the ALJ’s decision. Indeed, it is neither a “pick and choose” violation nor a step five
error – as Plaintiff alleges - that dooms the ALJ’s decision. Rather, the decision fails appellate
scrutiny because the ALJ did not provide intelligible analysis of the medical opinions that
informed the nonexertional portion of Plaintiff’s RFC. And because this analytical deficiency
precludes meaningful review by this Court, the undersigned cannot find that substantial evidence
supports Plaintiff’s RFC. The Court’s rationale follows below.
A. Plaintiff’s RFC Is Not Supported by Substantial Evidence
Plaintiff begins by asserting that while an ALJ “is entitled to resolve any conflicts in the
record, she cannot pick and choose 10 through uncontradicted medical opinions, taking only those
parts that are favorable to a finding of nondisability.” Pl.’s Mot 7. She then explains that, in
defiance of this rule, “[t]he ALJ – contrary to all doctors who examined or reviewed [Plaintiff’s]
claim – found no limitations, finding [Plaintiff] capable of physically performing the full range
of light work.” Id. at 8.
See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“An ALJ is not entitled to pick and choose through an
uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.”). The “pick
and choose” rule, as it has become known, derives from this seminal case.
To support her claim, Plaintiff documents the nonexertional limitations recommended by
each of the three non-examining consultants: Dr. Chiang, Dr. Simutis, and Dr. Paxton. Id. at 8-9.
Additionally, Plaintiff details the various nonexertional limitations identified by Dr. Krueger and
Dr. Loescher, the two consultative examiners. Id. at 9-10. Plaintiff takes exception to the ALJ
assigning either “significant” or “moderate” weight to each of these five medical professionals,
alleging that by doing so – and by not overtly discounting any of the five opinions – the ALJ
“created multiple unresolved conflicts.” Id. at 10. Based on her reading of Haga v. Astrue,
Plaintiff concludes that “when the ALJ explicitly finds the evidence supported in the record, but
implies no explanation for rejecting any of the limitations opined by these doctors and never
states in the decision she actually rejected the opinions, there is simply no plausible basis to
affirm the decision.” Id. at 11 (citing Haga v. Astrue, 482 F.3d 1205 (10th Cir. 2007); Dutton v.
Colvin, 635 F. App’x 504 (10th Cir. 2015) (unpublished)).
The Commissioner responds by reframing the issue thus: “[w]here the record did not
reflect that [Plaintiff] had any major social limitations that would preclude the minimal social
demands of unskilled work, did the ALJ reasonably find her not disabled under the grids?”
Def.’s Resp. 2. She explains that “the ALJ ultimately applied the grids . . . and all of the
occupations contemplated by the grids are unskilled.” Id. at 6. Furthermore, the Commissioner
relates that “[u]nskilled jobs generally involve working with objects instead of with people, and
require little by way of social functioning.” Id. at 7. She then provides the following overview
for the remainder of her response:
[Plaintiff’s] sparse mental health treatment during the relevant period, her past
work in customer service, and her involvement in a theater company and church
activities do not support additional social limitations that would erode the
unskilled job base anticipated by the grids, and so even if the Court finds the ALJ
should have included social limitations in the RFC finding, any omission on the
ALJ’s part was harmless because it did not affect the outcome of the case.
The Commissioner counters Plaintiff’s Motion with three arguments. The first focuses
on the grids, which the Commissioner notes “only take notice of unskilled jobs.” Id. (citing 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b); Social Security Ruling (“SSR”) 83-10, 1983 WL
31251, at *3 (Jan 1, 1983)). She directs this Court to the governing regulations, which provide
that “[u]nskilled jobs require little or no judgment to do simple duties that can be learned on the
job in a short period of time.” Id. (citing 20 C.F.R. § 404.1568(a) (2017)). The Commissioner
also points this Court to multiple SSA Rulings for the proposition that unskilled work involves
only “basic mental demands.” Id. The first of these details that unskilled work involves
“respond[ing] appropriately to supervision, coworkers, and usual work situations,” and deals
primarily “with objects, rather than with data or people.” Id. (quoting SSR 85-15, 1985 WL
56857, at *4 (Jan. 1, 1985)). The next clarifies that “there are nonexertional limitations or
restrictions which have very little or no effect on the unskilled light occupational base.” Id.
(quoting SSR 83-14, 1983 WL 31254, at *5 (Jan. 1, 1983)).
The second prong of the Commissioner’s response draws from the “record as a whole” to
substantiate Plaintiff’s lack of social limitations “that would significantly erode the unskilled job
base contemplated by the grids.” Id.
After reviewing exemplars of the social limitations
assigned by the five relevant medical professionals, the Commissioner opines that “while the
opinion evidence may have suggested some impairment in social functioning, those limitations
would not necessarily preclude the unskilled jobs anticipated by the grids.” Id. at 8. She bolsters
her position by recalling the ALJ’s observation that Plaintiff worked at least two different jobs
during the relevant time period. Id. Likewise, the Commissioner recalls Plaintiff’s numerous
ADLs, including attending a church group, working at a local theater group, and attending
college. Id. at 9. “Finally,” the Commissioner reasons, “the medical evidence of record shows
little mental health treatment during the relevant period, and [that] medication helped control her
The Commissioner builds upon the preceding prongs to construct the third and final
segment of her response. Here, she suggests that Plaintiff’s “mental health record does not
suggest any social limitations precluding unskilled work . . . [which] in turn, leaves the light,
unskilled base contemplated by the grids intact.” Id. at 10. Accordingly, she concludes, “[a]ny
arguable mistake on the ALJ’s part in formulating the RFC finding is thus harmless.” Id. (citing
Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).
Standard for evaluating medical evidence
An ALJ must evaluate every medical opinion in the record, although the weight given to
each opinion will vary according to the relationship between the disability claimant and the
medical professional. Hamlin, 365 F.3d at 1215. See Robinson v. Barnhart, 366 F.3d 1078,
1084 (10th Cir. 2004) (“[t]he opinion of an examining physician is generally entitled to less
weight than that of a treating physician, and the opinion of an agency physician who has never
seen the claimant is entitled to the least weight of all.”); 20 C.F.R. § 404.1527(c) (2017). On
issues including the RFC determination and the ultimate issue of disability, opinions from any
medical source must be carefully considered and “must never be ignored.” SSR 96–5p, 1996
WL 374183 at *2–3 (July 2, 1996) (emphasis added). See Victory v. Barnhart, 121 F. App’x
819, 825 (10th Cir. 2005) (unpublished) (finding it is clear legal error to ignore a medical
opinion). Regulations provide several specific factors for evaluating a medical opinion. See 20
C.F.R. § 404.1527(d)(1)-(6). Using these factors, ALJs are directed to weigh medical source
opinions and to provide “appropriate explanations for accepting or rejecting such opinions.” SSR
96-5p, 1996 WL 374183, at *5.
When assessing a claimant’s RFC, an ALJ must explain what weight is assigned to each
opinion and why. Id. Nevertheless, “there is no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical opinion on [a specific]
functional capacity . . . because the ALJ, not a physician, is charged with determining a
claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir.
2012) (alteration and internal quotation marks omitted)). Nevertheless, “[a]n ALJ is not entitled
to pick and choose through an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.” Id. at 1292 (internal brackets omitted) (quoting Haga,
482 F.3d at 1208). It is reversible error for the ALJ not to discuss uncontroverted evidence he
chooses not to rely on, as well as significantly probative evidence he rejects. Grogan v.
Barnhart, 399 F.3d 1257, 1266 (10th Cir. 2005).
On appellate review, an ALJ’s findings must be sufficiently specific to allow for
meaningful review. See Langley, 373 F.3d at 1123. If an ALJ’s decision is not articulated with
sufficient particularity to allow for judicial review, the court cannot affirm the decision as legally
correct. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must
support his or her findings with specific weighing of the evidence and “the record must
demonstrate that the ALJ considered all of the evidence.” Id. at 1009-10.
According to SSR 96–8p, 11 the RFC assessment “must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts (e.g.,
SSR rulings are binding on an ALJ. See Sullivan v. Zebley, 493 U.S. 521, 530 n. 9 (1990); Nielson v. Sullivan,
992 F.2d 1118, 1120 (10th Cir. 1993); 20 C.F.R. § 402.35(b)(1) (2017).
laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96–8p,
1996 WL 374184 at *7 (July 2, 1996).
The ALJ must also explain “how any material
inconsistencies or ambiguities in the evidence in the case record were considered and resolved.”
Id. The RFC assessment must always consider and address medical source opinions. If the RFC
assessment conflicts with an opinion from a medical source, the ALJ must explain why the
opinion was not adopted. Id. When the ALJ fails to provide a narrative discussion describing
how the evidence supports each conclusion, citing to specific medical facts and nonmedical
evidence, the court will conclude that his RFC conclusions are not supported by substantial
evidence. See Southard v. Barnhart, 72 F. App’x. 781, 785 (10th Cir. 2003) (unpublished)
(“Because the ALJ failed to make all the detailed findings required by the regulations and rulings
at step four, his RFC conclusions are not supported by substantial evidence.”).
3. The Court cannot meaningfully review the ALJ’s RFC determination
An ALJ’s decision must be sufficiently specific and articulated to allow for meaningful
See Clifton, 79 F.3d at 1009.
These requirements, which are noticeably
qualitative rather than quantitative, are the attributes of a well-crafted administrative decision,
irrespective of whether its findings are ultimately upheld. Unfortunately, they also describe the
obverse of the decision currently under review.
ALJ Lindsay clearly reviewed the evidence of record.
In fact, she recorded an
encyclopedic summary of the evidence, surpassing any this Court has seen. See AR 22-43. Yet,
while the decision benefitted from this attention to detail, it faltered in its analysis of those
details, and it is that absence that necessitates remand.
The ALJ’s RFC determination fails for numerous reasons. The first is the decision’s
In weighing the medical opinions related to Plaintiff’s exertional
limitations, the ALJ communicated her evaluations through the common, easily understood
terms of “significant weight” and “little weight.” AR 41-42. She did not do so, however, with
the five medical opinions concerning Plaintiff’s nonexertional impairments. Instead, the ALJ
assigned “significant weight” to the opinions of Dr. Paxton and Dr. Simutis, while assigning a
more amorphous “moderate weight” standard to the opinions of Dr. Krueger, Dr. Chiang, and
Dr. Loescher. AR 36-41. Notably, by assigning these two types of weight, the ALJ did not
overtly reject any of the five medical opinions – none of which entirely agree.
Next, the ALJ compounded her error by evaluating each medical opinion with either
summary or boilerplate language. The ALJ assigned moderate weight to the opinion of Dr.
Krueger for no other reason than he “saw the claimant once, and he based his answers on that
questionnaire on that 1 meeting.” 12 AR 38. She assigned the same weight to Dr. Loescher’s
opinion, but proffered the following perfunctory explanation to justify her evaluation: “I find Dr.
Loescher’s opinion persuasive and accord[ ] it moderate weight, as it is well supported by
explanation and by the medical evidence.” AR 40. The greater part of this cursory explanation
then reappeared in the evaluations of the opinions of Dr. Paxton, Dr. Chiang, and Dr. Simutis,
each of which were evaluated by the exact same, one-sentence narrative: “they are well
supported by explanation and by the medical evidence and they reflect consideration of the entire
medical records by a specialist who is familiar with Social Security regulations.” AR 36 (Dr.
Paxton), AR 38 (Dr. Chiang), AR 41 (Dr. Simutis). 13 But, paradoxically, the ALJ used this same
unhelpful, stock language to assign significant weight to Dr. Paxton and Dr. Simutis on the one
The ALJ did not explain precisely why she discounted Dr. Krueger’s opinion. When the SSA or affiliated state
agencies send a claimant on a consultative examination, it is just that – a one-time consultation. Under the ALJ’s
logic, any consultative examination is therefore inherently devalued.
The ALJ also justified assigning significant weight to Dr. Mark Werner, M.D. and Dr. Allen Gelinas, M.D., who
opined on Plaintiff’s exertional limitations, using the same boilerplate language. AR 41 (Dr. Werner), AR 42 (Dr.
hand, and moderate weight (a presumably lower weight than significant) to Dr. Chiang on the
other. This leaves the Court in the unenviable position of trying to divine whether the ALJ
erroneously assigned moderate weight to Dr. Chang, or incorrectly assigned significant weight to
one or both of the opinions of Dr. Paxton or Dr. Simutis. Alternatively, the boilerplate language
may be exactly what it appears to be: the veneer of analysis, applied at once robotically and
haphazardly. In either case, the ALJ’s nebulous terminology combined with rote, inconsistent
summary narratives confuses the decision sufficiently so as to preclude this Court from engaging
in a meaningful review. See Clifton, 79 F.3d at 1009.
Plaintiff adds that “[i]n assigning either moderate or significant weight to all of the
doctors’ opinions, the ALJ created unresolved conflicts in the evidence.” Pl.’s Mot. 10. For this
Court, the principal infirmity of the ALJ’s terminology and its application does not derive from
an unresolved conflict. Regulations charge the ALJ with resolving conflicts, and in this case, the
ALJ did so (albeit without the required substantial evidence) by applying the grids, thereby
limiting Plaintiff to unskilled work. See Haga, 482 F.3d at 1208 (“the ALJ is entitled to resolve
any conflicts in the record”). However, regulations also direct ALJs to use the factors detailed in
20 C.F.R. § 404.1527(d)(1)-(6) to weigh medical source opinions and to provide “appropriate
explanations for accepting or rejecting such opinions.” SSR 96-5p, 1996 WL 374183, at *5.
This, the ALJ did not do.
Rather than providing appropriate explanations for her evaluations of medical opinions,
the ALJ used vague, summary, and confusing language. The ALJ’s one-sentence narratives,
often boilerplate and inconsistently applied, are insufficiently specific to allow the undersigned
to meaningfully review her decision. See Langley, 373 F.3d at 1123. As a consequence, this
Court must conclude that her RFC conclusions are not supported by substantial evidence. See
Southard, 72 F. App’x. at 785 (“Because the ALJ failed to make all the detailed findings
required by the regulations and rulings at step four, his RFC conclusions are not supported by
4. Even if properly articulated, the ALJ’s RFC conclusion would violate the “pick
and choose” rule
The preceding explains why the ALJ’s decision must be reversed and remanded. It also
details the deficiencies of the opinion so that these errors may be avoided and/or cured on
remand. To further illuminate the administrative proceedings to follow, the Court will now
explain why, even if the ALJ had properly articulated her reasoning, her opinion would have
nonetheless violated the “pick and choose” rule announced in Haga v. Astrue.
In 2007, the Tenth Circuit published two cases that control here. First, in Haga, the
court held that an ALJ erred in failing to explain why he adopted some of a consultative
examiner’s restrictions but rejected others. See Haga, 482 F.3d at 1208. “[T]he ALJ did not
state that any evidence conflicted with [the consultative examiner’s] opinion or mental RFC
assessment. So it is simply unexplained why the ALJ adopted some of [the consultative
examiner’s] restrictions but not others.” Id. The court, therefore, remanded “so that the ALJ
[could] explain the evidentiary support for his RFC determination.” Id. Later in 2007, the Tenth
Circuit expressly applied Haga and its reasoning to the opinions of nonexamining physicians in
Frantz v. Astrue, 509 F.3d 1299, 1302–03 (10th Cir. 2007). Since the time of the Haga opinion,
the Court’s holding that an “ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability” has
become known as the “pick and choose” rule. Haga, 482 F.3d at 1208.
More recent decisions of the Tenth Circuit have clarified the application of Haga, but
none have overruled it. First, in 2015, the Vigil court held it is not always necessary for the ALJ
to make specific limitations in the RFC for concentration, persistence and pace. Vigil v. Colvin,
805 F.3d 1199, 1203-04 (10th Cir. 2015). In Vigil, the Tenth Circuit found that the ALJ
adequately accounted for moderate limitations in concentration, persistence and pace by limiting
the plaintiff to unskilled work. Id. It noted that unskilled work generally requires only the
following: (1) understanding, remembering, and carrying out simple instructions; (2) making
judgments that are commensurate with the functions of unskilled work – i.e., simple work-related
decisions; (3) responding appropriately to supervision, co-workers and usual work situations; and
(4) dealing with changes in a routine work setting. Id. (quoting SSR 96-9p, 1996 WL 374185, at
*9 (July 2, 1996)).
In 2016, the Smith court ratified the Vigil court’s holding that “an administrative law
judge can account for moderate limitations by limiting the claimant to particular kinds of work
activity.” Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016) (citing Vigil, 805 F.3d at 1204).
On appeal, the Smith court reviewed an ALJ’s RFC determination based on a non-examining
physician’s assessment of nine nonexertional limitations that sounded in the categories of (1)
sustained concentration and pace, (2) social interaction, and (3) adaptation. Id. at 1268. The
physician, when reducing these limitations to her RFC narrative, omitted the majority of the nine
and recommended instead that the claimant “could (1) engage in work that was limited in
complexity and (2) manage social interactions that were not frequent or prolonged.” Id. The
ALJ adopted the recommendation, and found that the claimant “(1) could not engage in face-toface contact with the public and (2) could engage in only simple, repetitive, and routine tasks.”
Id. at 1269. “Through these findings,” the Tenth Circuit held, “the [ALJ] incorporated the
functional limitations of [the claimant’s] moderate nonexertional limitations.” Id. The Smith
court reasoned that the “notations of moderate limitations served only to aid [the physician’s]
assessment of residual functional capacity.” Id. at 1269, n2. Correspondingly, the Tenth Circuit
explained that the court’s function is not to compare the ALJ’s findings to a physician’s
“notations of moderate limitations,” but rather, to compare the ALJ’s findings to the physician’s
In the instant case, the ALJ reviewed five medical opinions, each of which recommended
nonexertional limitations. Between the five, the medical professionals recommended moderate –
and one occasionally marked limitation [AR 1016 (Dr. Krueger)] – across the four categories
assessed by the SSA. This falls outside of the guidance of Vigil, where the court found “the ALJ
accounted for [the claimant’s] moderate concentration, persistence, and pace problems in his
RFC assessment by limiting him to unskilled work.” Vigil, 805 F.3d at 1204. In fact, the Vigil
court warned against the approach adopted by the ALJ here, cautioning that “[t]here may be
cases in which an ALJ's limitation to ‘unskilled’ work does not adequately address a claimant’s
mental limitations.” Id. (citing Chapo, 682 F.3d at 1290 n. 3 (recognizing that restrictions to
unskilled jobs do not in all instances account for the effects of mental impairments)). The ALJ
eschewed this guidance and instead tried to address Plaintiff’s litany of mental limitations –
which were not confined to concentration, persistence, and pace – by limiting her to unskilled
work. Vigil does not support that proposition.
Similarly, the ALJ’s decision does not fall within the four corners of Smith v. Colvin. In
Smith, the ALJ emulated a nonexamining physician’s reduction of multiple moderate limitations
into two practical RFC restrictions that encompassed the claimant’s moderate limitations. See
Smith, 821 F.3d at 1268. The ALJ in Smith effectively carried these recommendations over into
her RFC. Id. at 1269. Here, the ALJ made no such efforts. Indeed, none of the five narratives
propounded my medical professionals in this case is adequately represented in the ALJ’s RFC
Thus, this Court cannot say that the ALJ adequately accounted for the
moderate nonexertional limitations identified by medical professionals. Moreover, neither Vigil
nor Smith allows an ALJ to account for a marked limitation, like that identified by Dr. Krueger,
to be satisfactorily addressed by limiting a claimant to a class of work. Therefore, even if this
Court could meaningfully review the opinion crafted by the ALJ, it would nonetheless be forced
to find that the ALJ committed reversible error by picking and choosing through uncontradicted
medical opinions, taking only the parts that were favorable to a finding of nondisability. See
Haga, 482 F.3d at 1208. Because the ALJ did so, and made no attempt to explain why, her
decision must be reversed and remanded. See Frantz, 509 F.3d at 1302–03 (remanding where
RFC failed to reflect moderate limitations and failed to explain the omission).
B. Step Five Claim, Post-Hoc Rationalizations, and Harmless Error
The Court need not reach the merits of Plaintiff’s step five claim. See Pl.’s Mot. 12-14.
Because the ALJ failed to address or explain her reasoning for discounting Plaintiff’s litany of
nonexertional limitations, the error of the ALJ’s step five analysis is inherent and unmistakeable.
Furthermore, the Court rejects the Commissioner’s last two attempts to salvage the ALJ’s
decision. The Commissioner cites to numerous regulations and citations from the record to try
and justify the ALJ’s total avoidance of Plaintiff’s nonexertional limitations and application of
the grids. See Def.’s Resp. 6-10. Had the ALJ supported her decision as the Commissioner has
tried to do for her in the response brief, this opinion might look very different. However, she did
not. This Court may evaluate the ALJ’s opinion solely on the reasons stated in the decision. See
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168–69 (1962). Or, as stated by the
Tenth Circuit, “[a]ffirming this post hoc effort to salvage the ALJ’s decision would require us to
overstep our institutional role and usurp essential functions committed in the first instance to the
administrative process.” Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004). This, the
Court will not do.
Finally, the Commissioner’s harmless error argument is without basis. See Def.’s Resp.
10. This Court cannot ascertain, definitively, what weight the ALJ intended to assign to the
medical opinions at issue. Each medical professional recommended moderate nonexertional
limitations, and one identified a marked limitation. On remand, the ALJ may reject them all for
reasons yet unidentified, but that potential does not preclude this Court’s current remand. The
Commissioner cannot state that Plaintiff’s RFC will not change, when the current analysis
underlying that RFC is so confusing as to preclude meaningful appellate review. Therefore, the
Court rejects the Commissioner’s invitation to affirm based on harmless error.
For the reasons articulated above, the Court cannot find that the ALJ’s decision was
supported by substantial evidence or that the ALJ correctly applied the proper legal standards.
IT IS THEREFORE ORDERED that “Plaintiff’s Memorandum in Support of Her
Motion to Reverse and [Remand] the Commissioner’s Final Decision” [ECF No. 12] is
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED
and that the instant cause be REMANDED for further review consistent with this opinion.
IT IS SO ORDERED.
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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