Chacon v. Social Security Administration
ORDER denying 16 Motion to Remand to Agency by Magistrate Judge Carmen E. Garza. (jrt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 16-242 CG
NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Sean Chacon’s Motion to Reverse
and Remand for a Rehearing with Supporting Memorandum, (Doc. 16), filed November
21, 2016; Defendant Commissioner Nancy A. Berryhill’s Brief in Response to Plaintiff’s
Motion to Reverse and Remand the Agency’s Administrative Decision, (Doc. 20), filed
February 21, 2017; and Mr. Chacon’s Reply in Support of Motion to Reverse and
Remand for a Rehearing, (Doc. 23), filed March 10, 2017.
Mr. Chacon originally filed for supplemental security income on April 27, 2011,
when he was under 18 years old. (AR 228). His application was denied initially on June
24, 2011, (AR 115), and again upon reconsideration on November 21, 2011. (AR 12426). Mr. Chacon requested a hearing before an Administrative Law Judge (“ALJ”) on
January 16, 2012. (AR 143). In February 2012, Mr. Chacon turned 18. (See AR 228).
On March 26, 2014, Mr. Chacon requested a prehearing conference, (AR 154), which
was held on May 1, 2014, before ALJ Fred Upshall. (AR 44-68). Loretta Chacon, Mr.
Chacon’s aunt whom Mr. Chacon refers to as his grandmother, testified at the hearing.
(AR 45; 53-62). ALJ Upshall held a supplemental hearing on August 22, 2014, at which
Mr. Chacon, Ms. Chacon, and Thomas Greiner, an impartial vocational expert (“VE”),
testified. (AR 69-110).
On September 17, 2014, ALJ Upshall issued his decision denying Mr. Chacon’s
claim under both childhood and adult standards of disability. (AR 13-38). Mr. Chacon
requested review by the Appeals Council, which denied his request on February 1,
2015, (AR 1-6), making the ALJ’s decision Defendant’s final decision for purposes of
Mr. Chacon has appealed to this Court arguing the ALJ committed reversible
error under both the childhood and adult standards of disability. Under the childhood
standard, Mr. Chacon argues the ALJ erred by failing to find Mr. Chacon had at least a
marked limitation in the domain of attending and completing tasks. (Doc. 16 at 1). Under
the adult standard, Mr. Chacon alleges the ALJ failed to incorporate medical opinions
into Mr. Chacon’s residual functional capacity (“RFC”). (Doc. 16 at 1). The Court has
reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the
Court has meticulously reviewed the entire record. For the following reasons, the Court
finds Mr. Chacon’s motion should be DENIED.
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. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98
(10th Cir. 1992)). If substantial evidence supports the Commissioner’s findings and the
correct legal standards were applied, the Commissioner’s decision stands and the
plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331
F.3d 758, 760 (10th Cir. 2003). The Commissioner’s “failure to apply the correct legal
standards, or show . . . that she has done so, are grounds for reversal.” Winfrey v.
Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d
1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but
should neither re-weigh the evidence nor substitute its judgment for the
Commissioner’s. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court’s review
is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2015), which is
generally the ALJ’s decision, rather than the Appeals Council’s denial of review. O’Dell
v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. 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.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record 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). “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)).
Applicable Law and Sequential Evaluation Process
For purposes of supplemental security income (“SSI”), a child is “disabled” when
he “has a medically determinable physical or mental impairment which results in marked
and severe functional limitations, and 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.” Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001)
(citing 42 U.S.C. § 1382c(a)(3)(C)(i)). In order to determinate whether a child is
disabled, the Commissioner follows a three-step sequential evaluation process (“SEP”).
20 C.F.R. § 416.924(a); Briggs, 248 F.3d at 1237. The ALJ “must determine, in this
order, (1) that the child is not engaged in substantial gainful activity, (2) that the child
has an impairment or combination of impairments that is severe, and (3) that the child’s
impairment meets or equals an impairment listed in Appendix 1, Subpart P of 20 C.F.R.
Pt. 404.” Briggs, 248 F.3d at 1237 (citing 20 C.F.R. § 416.924(a)).
At the third step, the ALJ must assess whether the child’s impairments, alone or
in combination, medically or functionally equal a listing. 20 C.F.R. § 416.924(a). In doing
so, the ALJ considers all relevant factors, including: (1) how well the child initiates and
sustains activities, how much sleep he needs, and the effects of structured or supportive
settings; (2) how the child functions at school; and (3) the effects of the child’s
medications or other treatments. Id. at § 416.926a(a)(1)-(3); Briggs, 248 F.3d at 123738. The ALJ must assess the child’s functioning in terms of six domains: (i) acquiring
and using information; (ii) attending and completing tasks; (iii) interacting and relating
with others; (iv) moving about and manipulating objects; (v) caring for himself; and (vi)
health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi); Briggs, 248 F.3d at
1238. A child is disabled if he has “marked” limitations in two of these domains or an
“extreme” limitation in one domain. 20 C.F.R. § 416.926A(d).1
In order to determine whether an adult claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140
(1987); 20 C.F.R. §§ 404.1520, 416.920 (2012). At the first four steps of the SEP, the
claimant bears the burden of showing: (1) he is not engaged in “substantial gainful
activity”; (2) he 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) his impairment(s) either meet or equal one of the “Listings”2 of
presumptively disabling impairments; or (4) he is unable to perform her “past relevant
work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); see Grogan v. Barnhart,
399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot
engage in past relevant work, the ALJ will proceed to step five of the evaluation
process. At step five, the Commissioner must show the claimant is able to perform other
work in the national economy, considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Grogan, 399 F.3d at 1261.
a. Childhood Standard of Disability
Mr. Chacon filed for supplemental security benefits claiming Attention-Deficit
Hyperactivity Disorder (“ADHD”), Oppositional Defiant Disorder (“ODD”), bipolar
disorder, a seizure disorder, and severe headaches limited his ability to work. (AR 111).
At step one of the SEP, the ALJ found Mr. Chacon had not engaged in any substantial
The terms “marked” and “extreme” are defined in 20 C.F.R. § 416.924a(e).
20 C.F.R. pt. 404, subpt. P, app. 1.
gainful employment since his application was filed. (AR 22). At step two, the ALJ found
Mr. Chacon had the following severe impairments: ADHD, bipolar disorder, and posttraumatic stress disorder (“PTSD”). (AR 22).
Proceeding to step three, the ALJ first determined Mr. Chacon did not have an
impairment or combination of impairments that met or medically equaled a listed
impairment. (AR 22). Further, Mr. Chacon did not have an impairment or combination of
impairments that functionally equaled a listed impairment. (AR 22). The ALJ concluded
Mr. Chacon’s impairments could reasonably be expected to produce his alleged
symptoms, but that his statements regarding the intensity, persistence, and limiting
effects of his symptoms were not credible to the extent they conflicted with the ALJ’s
later RFC. (AR 23).
The ALJ then turned to opinion evidence in the record. First, the ALJ
exhaustively discussed several opinions rendered before Mr. Chacon’s application for
SSI. (AR 23-25). Because these “evaluations were completed long before” Mr.
Chacon’s alleged onset date, the ALJ assigned them “limited weight.” (AR 25).
By contrast, the ALJ gave several opinions great weight: those by Gerald L.
Russell, Ph.D.; Robert Romero, Mr. Chacon’s tenth grade Spanish teacher; and the
state agency medical consultants. (AR 26). Dr. Russell evaluated Mr. Chacon’s
cognitive, academic, and psychological functioning in March, 2011. (AR 25). Among
other suggestions, Dr. Russell recommended Mr. Chacon attend treatment for his
ADHD, as “all other treatments might be negatively impacted by [Mr. Chacon’s] inability
to sit still and pay attention.” (AR 25; 613). Ultimately, the ALJ gave Dr. Russell’s
opinion great weight because it was consistent with his interview notes, Mr. Romero’s
opinion, and Ms. Chacon’s report. (AR 25).
Mr. Romero filled out a teacher questionnaire that asked questions related to the
six domains of functioning. (AR 292-99). As the ALJ noted, Mr. Romero stated Mr.
Chacon was distracted by his phone and “drama” with friends. (AR 26; 294). Mr.
Romero indicated Mr. Chacon has “problems” in the first five domains of functioning,
with specific ratings ranging from “no problem” to “obvious” or “serious” problems. (AR
25; 294-297). The ALJ assigned Mr. Romero’s opinion great weight due to the length of
his interaction with Mr. Chacon and how Mr. Romero supported his determinations. (AR
Finally, the ALJ gave great weight to two state agency medical consultants. (AR
26). At the initial and reconsideration stages, state agency consultants determined Mr.
Chacon had no limitation in the fourth domain, less than marked limitation in the first,
second, and fifth domains, and marked limitation in the third domain. (AR 26). The ALJ
gave these opinions great weight on account of their experience in reviewing medical
records and their consistency with the record. (AR 26).
At the final step of the childhood analysis, the ALJ found Mr. Chacon had no
limitation in three domains, less than marked limitation in two domains, and marked
limitation in one domain. (AR 26-31). Evidence indicated Mr. Chacon focused well on
medication and was “very capable” when focused and on task. (AR 28). Finally, the ALJ
cited the state agency findings that Mr. Chacon suffered less than marked limitations in
attending and completing tasks. Without an “extreme” limitation in one domain or
“marked” limitations in two domains, Mr. Chacon did not suffer an impairment or
combination of impairments that medically or functionally met or equaled a Listing
impairment. Accordingly, the ALJ concluded Mr. Chacon was not disabled prior to
turning 18. (AR 31).
b. Adult Standard of Disability
Having determined step one already, the ALJ began at step two under the adult
standard of disability and found Mr. Chacon continued to suffer the same severe
impairments. (AR 31). At step three, the ALJ again determined Mr. Chacon’s
impairments, singly or in combination, did not meet or medically equal a Listing
impairment. (AR 31-33).
At step four, the ALJ found that, since turning 18, Mr. Chacon possessed the
RFC to perform a full range of work at all exertional levels with two nonexertional
limitations: Mr. Chacon is limited to unskilled work with no fast paced production
requirements and should be isolated in his work environment except for periodic,
occasional supervision. (AR 33). The ALJ again considered Mr. Chacon’s statements
not entirely credible. (AR 33). Although Mr. Chacon testified that his medication did not
help him, treatment notes indicated his mood and grades improved while he was on
medication. (AR 33). Further, evidence of Mr. Chacon’s ability to take care of himself
and his statements regarding his desire to just smoke marijuana reduced his credibility.
Turning again to opinion evidence, the ALJ granted Ms. Chacon little weight. Ms.
Chacon opined regarding Mr. Chacon’s ability to work, but the ALJ discounted that
testimony because she is not an acceptable medical source, she is not trained to
evaluate ability to work, and because her personal relationship with Mr. Chacon could
impact her descriptions. (AR 34).
The ALJ next considered the opinions of Patricia Rodriguez, a licensed school
psychologist. (AR 34). Ms. Rodriguez evaluated Mr. Chacon in December, 2012, when
Mr. Chacon was in eleventh grade. (AR 753). Ms. Rodriguez performed numerous tests
and made a number of recommendations to improve Mr. Chacon’s psychological health.
(AR 760-61). Ms. Rodriguez’s opinion received “great weight” due to its consistency
with her interview and testing. (AR 34).
The last findings the ALJ discussed were those by Barbara May-Valencia, Ph.D.
(AR 35). Dr. May-Valencia performed a consultative examination of Mr. Chacon on July
1, 2014, and diagnosed him with ADHD, PTSD, cannabis dependence, and bipolar
disorder by history. (AR 35). Dr. May-Valencia assigned Mr. Chacon a Global
Assessment of Functioning (“GAF”) score of 38, indicating “major impairment in several
areas, such as work or school, family relations, judgment, thinking, or mood.” (AR 35);
see Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012). The ALJ gave
Dr. May-Valencia “moderate” weight due to her specialty in mental health, but found her
low GAF score inconsistent with Mr. Chacon’s employment and reported social activity.
Proceeding in the SEP, the ALJ found Mr. Chacon had no past relevant work.
(AR 36). However, considering Mr. Chacon’s age, education, work experience, and
RFC, Mr. Chacon was able to perform jobs that exist in significant numbers in the
national economy. (AR 36-37). The ALJ relied on VE testimony that Mr. Chacon could
perform representative jobs such as weeder and farm worker in order to accommodate
his limitations. (AR 37). Because Mr. Chacon could perform jobs existing in significant
numbers in the national economy, the ALJ concluded he was not disabled from the date
he attained age 18 through the date of the decision. (AR 37).
Mr. Chacon argues the ALJ committed two reversible errors: (1) impermissibly
ignoring evidence in finding Mr. Chacon less than markedly limited in the second
domain of functioning, ability to attend and complete tasks, (Doc. 16 at 16-19); and (2)
impermissibly ignoring portions of Dr. May-Valencia’s and Ms. Rodriguez’s opinions in
formulating his RFC, (Doc. 16 at 19-23). The Commissioner responds that the ALJ
reasonably considered, weighed, and incorporated each opinion. (Doc. 20 at 4-13).
ALJs are required to consider every opinion in the record. See 20 C.F.R. §
416.927(b)-(c). Further, an ALJ’s decision “must demonstrate that the ALJ considered
all of the evidence, but an ALJ is not required to discuss every piece of evidence.”
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citing Vincent ex rel. Vincent
v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)). “Rather, in addition to discussing
the evidence supporting his decision, the ALJ must also discuss the uncontroverted
evidence he chooses not to rely upon, as well as significantly probative evidence he
rejects.” Id. (citation omitted). Finally, an ALJ may not “pick and choose among medical
reports, using portions of evidence favorable to his position while ignoring other
evidence.” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
a. The ALJ did not ignore evidence in finding Mr. Chacon less than markedly
limited in his ability to attend and complete tasks
Mr. Chacon first charges the ALJ with ignoring evidence that he is markedly
limited in his ability to attend and complete tasks. (Doc. 16 at 1, 16-19). In particular, Mr.
Chacon accuses the ALJ of disregarding evidence from Mr. Romero, Dr. Russell, and
Ms. Chacon. (Doc. 16-19). Given the fact-intensive nature of Mr. Chacon’s challenge,
the Court will discuss each opinion in turn, then the ALJ’s discussions of the opinions,
and then evaluate whether the ALJ incorporated or ignored the opinions.
In May, 2011, Mr. Romero filled out a teacher questionnaire that asked questions
related to the six domains of functioning. (AR 292-99). The only portion of the
questionnaire relevant to this appeal is the page on attending and completing tasks. (AR
294). Mr. Romero stated Mr. Chacon was distracted by his phone and “drama” with
friends outside the classroom. (AR 26; 294). Of thirteen potential “problems” on a scale
from one to five, Mr. Romero indicated Mr. Chacon had a “serious” problem (4/5) in
three areas, an “obvious” problem (3/5) in three areas, a “slight” problem (2/5) in four
areas, and no problem (1/5) in two areas.3 (AR 28; 294).
Dr. Russell evaluated Mr. Chacon’s cognitive, academic, and psychological
functioning in March, 2011. (AR 25). Overall, Mr. Chacon showed “mostly average
ability” intellectually “except for low average short-term, working memory.” (AR 613). Mr.
Chacon also showed “some variability in his attention and concentration.” (AR 613).
Following three sessions, Dr. Russell made several diagnoses, including ADHD,
Primarily Inattentive Type. (AR 613). Dr. Russell also made several recommendations,
for instance recommending that Mr. Chacon attend treatment for his ADHD, as “all other
treatments might be negatively impacted by [Mr. Chacon’s] inability to sit still and pay
attention.” (AR 25; 613).
Mr. Romero made no indication the thirteenth area, “sustaining attention during play/sports
activities.” (AR 294).
Finally, Ms. Chacon testified at both hearings and completed a function report
detailing Mr. Chacon’s abilities. (AR 53-62; 93-100; 303-13). Ms. Chacon described Mr.
Chacon as forgetful, combative when receiving direction, and unable to focus. (AR 5859; 310-12). For example, Ms. Chacon stated he must be reminded about personal
hygiene and homework and he cannot focus long enough to complete a project,
homework, or chores. (AR 97; 311-12). However, Ms. Chacon also indicated in the form
and in testimony that she and Mr. Chacon do not “get along very well” and argue
frequently. (AR 94-95; 97; 310).
First, the ALJ assigned Mr. Romero’s opinion great weight due to the length of
his interaction with Mr. Chacon and how Mr. Romero supported his determinations. (AR
25-26). In finding Mr. Chacon less than markedly disabled in the second domain, the
ALJ explicitly considered Mr. Romero’s report, including that Mr. Chacon was distracted
by his phone and peers, and that Mr. Chacon had “serious” or “obvious” problems in six
out of the twelve areas indicated. (AR 28).
Second, the ALJ also thoroughly discussed Dr. Russell’s opinions and
recommendations. (AR 25). In particular, the ALJ noted Dr. Russell’s recommendation
that Mr. Chacon attend therapy, otherwise “all other treatments might be negatively
impacted by his inability to sit still and pay attention.” (AR 25). The ALJ gave Dr.
Russell’s opinions great weight due to their consistency with his interview notes, Mr.
Romero’s report, and Ms. Chacon’s report and testimony. (AR 25).
As for Ms. Chacon, the ALJ gave her opinion “moderate weight.” (AR 26).
Although Ms. Chacon reported Mr. Chacon was forgetful, had trouble accepting
direction, and could not focus well enough to complete homework or chores, the ALJ
found Ms. Chacon’s opinion “could be colored by her frustration” with Mr. Chacon
“because he was messy and did not perform chores as directed.” (AR 26). The ALJ
found probative Ms. Chacon’s testimony that she and Mr. Chacon did not get along and
that she expected chores to be performed her particular way. (AR 26).
In his second domain analysis, the ALJ discussed Mr. Romero’s questionnaire,
Ms. Rodriguez’s report, and state agency findings that Mr. Chacon was less than
markedly impaired. (AR 28). The ALJ explicitly described Mr. Romero’s notations of
“serious” and “obvious” problems. (AR 28). The ALJ reiterated Ms. Rodriguez’s report
findings that Mr. Chacon was focused and attentive while on medication, but truant and
negligent the previous school year. (AR 28). Finally, the ALJ cited the two state agency
findings that Mr. Chacon was less than markedly disabled in attending and completing
tasks. (AR 28).
Given the ALJ’s thorough discussions of Dr. Russell’s, Mr. Romero’s, and Ms.
Chacon’s opinions, and the specific citation of evidence in his determination, the Court
finds there is no indication the ALJ impermissibly ignored any evidence. Although the
ALJ did not specifically discuss Dr. Russell or Ms. Chacon in his second domain
findings, he was not required to. The ALJ was only required to do was demonstrate he
considered all of the evidence. Clifton, 79 F.3d at 1009-10 (citation omitted). The ALJ
did just that by painstakingly describing each opinion and then weighing specific
evidence in support of his finding. “Where, as here, we can follow the adjudicator’s
reasoning in conducting our review, and can determine that correct legal standards
have been applied, merely technical omissions in the ALJ’s reasoning do not dictate
reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). This is not a
situation where the ALJ uses boilerplate language to find a claimant not disabled. See
Clifton, 79 F.3d at 1009-11. On the contrary, the ALJ appears to have considered and
weighed conflicting evidence, opting to rely on substantial evidence that Mr. Chacon
was not markedly limited in his ability to attend and complete tasks. Accordingly, the
Court finds no error in the ALJ’s analysis.
b. The ALJ did not err in rejecting Dr. Valencia’s and Ms. Rodriguez’s
Mr. Chacon’s second argument largely mirrors his first. Under the adult standard
of disability, Mr. Chacon argues the ALJ erred by failing to incorporate, without
explanation, various portions of Dr. May-Valencia’s and Ms. Rodriguez’s opinions. (Doc.
16 at 20-23). This argument is governed by the same principles explained above, and
the Commissioner again argues that the ALJ reasonably incorporated Dr. MayValencia’s and Ms. Rodriguez’s opinions. (Doc. 20 at 8-13).
Ms. Rodriguez performed a psychological evaluation of Mr. Chacon in
December, 2012, when Mr. Chacon was in eleventh grade. (AR 753-61). Ms. Rodriguez
diagnosed Mr. Chacon with ADHD, a mood disorder, chronic PTSD, anxiety disorder,
and cannabis abuse. (AR 760). Ms. Rodriguez also made a number of
recommendations “as a precautionary measure to maintain stability and promote
psychological wellness in a preventative and proactive supportive way.” (AR 760). The
recommendations are all suggestions for Mr. Chacon’s school and home life, nearly all
of which the ALJ expressly discussed. (AR 34; 760-61). The ALJ gave Ms. Rodriguez’s
opinion “great weight” because it was consistent with her interview and testing of Mr.
Chacon. (AR 34). Further, the ALJ “considered her school related recommendations” for
Mr. Chacon and “limited him to simple work with no fast paced production requirements
as a result.” (AR 34). Finally, the ALJ “limited him to isolated work due to his
behavioral/interpersonal concerns.” (AR 34).
The last findings the ALJ discussed were Dr. May-Valencia’s. (AR 35). Dr. MayValencia performed a consultative examination of Mr. Chacon on July 1, 2014, and
diagnosed him with ADHD, PTSD, cannabis dependence, and bipolar disorder by
history. (AR 35). Dr. Valencia assigned Mr. Chacon a Global Assessment of Functioning
(“GAF”) score of 38, indicating “major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood.” (AR 35); see Keyes-Zachary, 695
F.3d at 1162 n.1. According to Dr. Valencia, Mr. Chacon exhibited low-average to
average mental processing in several areas, including long term memory, working
memory, cognitive functioning, processing speed, ability to sustain attention and
concentration, and assert mental control. (AR 35). Finally, Dr. Valencia found Mr.
Chacon’s psychiatric symptoms “interfered” to an unspecified degree with his ability to
interact appropriately with the general public, persist at basic work tasks, and adapt to
changes in the work place. (AR 35; 776).
The ALJ gave Dr. Valencia “moderate” weight due to her specialty in mental
health. (AR 35). But, the ALJ considered Dr. Valencia’s GAF score inconsistent with her
interview notes. Specifically, the ALJ considered that Mr. Chacon was working when Dr.
May-Valencia interviewed him, that Mr. Chacon did not want to attend therapy because
it would interfere with other things he wanted to do, and that Dr. May-Valencia
recommended vocational rehabilitation for Mr. Chacon. (AR 35). A GAF score of 38, the
ALJ reasoned, was inconsistent with Mr. Chacon’s employment, potential for vocational
rehabilitation, and social activity. (AR 35). Finally, the ALJ further discounted Dr.
Valencia-May’s opinion because of Mr. Chacon’s expressed reluctance to attend
therapy. (AR 35-36).
After analyzing the opinions and the ALJ’s evaluation of the opinions, there is no
indication the ALJ failed to incorporate Dr. May-Valencia’s and Ms. Rodriguez’s
opinions into his RFC without adequate explanation. First, it is noteworthy that Ms.
Rodriguez did not opine regarding Mr. Chacon’s limitations; rather, she made a number
of “recommendations” for Mr. Chacon’s psychological well-being. (AR 760). Thus, this is
not a situation in which the ALJ adopted some limitations but not others and failed to
explain his reasons for doing so. See Carpenter v. Astrue, 537 F.3d 1264, 1269 (10th
Cir. 2008) (reversing ALJ who adopted some but not all of a physician’s findings of
limitations). Instead, the ALJ reasonably incorporated Ms. Rodriguez’s
recommendations into workplace restrictions. The Court will not substitute its judgment
for the ALJ when his decision demonstrates he considered all the evidence.
Second, the Court finds no error in the ALJ’s consideration of Dr. May-Valencia’s
findings. The ALJ thoroughly described Dr. May-Valencia’s opinion and reasonably
incorporated it to the extent he found it supported by the record. Mr. Chacon insists the
ALJ was required to accept Dr. May-Valencia’s finding that his symptoms “interfere[d]”
with his abilities or explain his reasons for not doing so. (Doc. 16 at 21). Here again
though, Dr. May-Valencia did not opine regarding the severity of the interference,
making it unclear just how impaired she felt Mr. Chacon was. And, the ALJ discounted
Dr. May-Valencia’s low GAF score as contradicted by other evidence. (AR 35).
For the foregoing reasons, the Court finds that the ALJ applied the correct legal
standards and committed no reversible error. IT IS THEREFORE ORDERED that the
Ms. Lujan’s Motion to Reverse and Remand for a Rehearing with Supporting
Memorandum (Doc. 17), is DENIED.
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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