O'Mary v. Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen denying 21 MOTION to Remand to Agency. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MIRANDA MAE O’MARY,
Plaintiff,
v.

CIV 16-0245 KBM

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reverse and
Remand for Rehearing, with Supporting Memorandum (Doc. 21), filed November 16,
2016. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the
parties have consented to me serving as the presiding judge and entering final
judgment. Doc. 9. Having reviewed the parties’ submissions, the applicable law, and the
relevant portions of the Administrative Record, the Court will deny the Motion.
I.

Procedural History
This is Plaintiff’s second appeal. On June 29, 2011, Plaintiff protectively filed an

application with the Social Security Administration for disability insurance benefits under
Title II of the Social Security Act. AR at 148-49.2 Plaintiff alleged a disability onset date
of October 20, 2007, due to “Fibromyalgia, Arthritis, and Compressed Dics (sic) in
1

Effective January 20, 2017, Nancy A Berryhill became the Acting Commissioner of the Social
Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill is therefore substituted for former Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.
2

Documents 12-1 through 12-29 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.

neck.” AR at 148, 173. However, Plaintiff continued to work full time until February 18,
2011. AR at 173.
The agency denied Plaintiff’s claims initially and upon reconsideration. AR at 7483. Plaintiff requested review and, after holding a de novo hearing, Administrative Law
Judge Myriam C. Fernandez Rice (“the ALJ”) issued an unfavorable decision on May 3,
2013. AR at 42-50. The Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision on November 12, 2013. AR at 1-6. As such, the ALJ’s decision became
the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
2003).
Plaintiff then appealed the ALJ’s decision to this Court. AR at 491-94. The Acting
Commissioner of Social Security requested voluntary remand of the case pursuant to
sentence four of 42 U.S.C. § 405(g), see AR at 497-98, and the case was accordingly
remanded. AR at 495-96. On remand, the Appeals Council instructed the ALJ to review
new and material evidence submitted by Plaintiff (specifically mentioning a consultative
examination conducted by John Vigil, M.D.) and to weigh a fibromyalgia questionnaire
submitted by Kathy Finch, M.D., one of Plaintiff’s treating providers. AR at 502-03.
Purporting to do just that, the ALJ held a second de novo hearing and, ultimately,
issued another unfavorable decision on December 8, 2015. AR at 424-37. The Appeals
Council did not assume jurisdiction over the case, and so the ALJ’s second decision
became the final decision of the Commissioner. 20 C.F.R. § 404.984. This Court now
has jurisdiction to review that decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
§ 422.210(a).

2

A claimant seeking disability benefits must establish that she is unable to engage
in “any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a). The Commissioner must use a five-step
sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 404.1520(a)(4).3
At Step One of the process, the ALJ found that Plaintiff engaged in substantial
gainful activity from October 20, 2007 through February 18, 2011, but that she had not
engaged in substantial gainful activity since that time. AR at 426. However, the ALJ did
note that Plaintiff continues to work for six hours per week and that “[a]lthough this work
does not rise to the level of substantial gainful activity, it does illustrate her ability to find
and maintain some employment.” AR at 427. At Step Two, she determined that Plaintiff
suffers from the severe impairments of “cervical spondylosis, fibromyalgia,
osteoarthritis, chronic pain, depression, anxiety, and obesity.” AR at 427. At Step Three,
the ALJ concluded that Plaintiff’s impairments, individually and in combination, did not
meet or medically equal the regulatory “listings.” AR at 427-30.
3

The Tenth Circuit recently summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333
n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in
a substantially gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009). If not, the ALJ then decides whether the claimant has a medically severe
impairment at step two. Id. If so, at step three, the ALJ determines whether the
impairment is “equivalent to a condition ‘listed in the appendix of the relevant
disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th
Cir. 2004)). Absent a match in the listings, the ALJ must decide at step four
whether the claimant's impairment prevents him from performing his past
relevant work. Id. Even if so, the ALJ must determine at step five whether the
claimant has the RFC to “perform other work in the national economy.” Id.

3

When a claimant does not meet a listed impairment, the ALJ must determine her
residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a
multidimensional description of the work-related abilities a plaintiff retains in spite of his
medical impairments. 20 C.F.R. § 404.1545(a)(1). “RFC is not the least an individual
can do despite his or her limitations or restrictions, but the most.” SSR 96-8P, 1996 WL
374184, at *1 (emphasis in original). In this case, the ALJ determined that Plaintiff
retains the RFC to “perform light work as defined in 20 C.F.R. § 404.1567(b) except that
she cannot climb ladders, ropes, or scaffolds and is limited to occasional overhead
reaching. She is able to maintain, understand, and remember simple work instructions
with occasional changes in work setting.” AR at 430.
Employing this RFC at Steps Four and Five, the ALJ determined that Plaintiff is
unable to perform her past relevant work as a court clerk. AR at 435. Relying upon the
testimony of a vocational expert (“VE”), however, the ALJ found that there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform despite
her limitations. AR at 436. Specifically, the ALJ determined that Plaintiff maintains the
RFC to work as an electronics worker, press operator, or fruit distributer. AR at 436.
Thus, the ALJ determined that Plaintiff is not disabled and denied benefits. AR at 437.
II.

Legal Standard
This Court “review[s] the Commissioner's decision to determine whether the

factual findings are supported by substantial evidence and whether the correct legal
standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting
Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). In

4

making this determination, however, this Court “cannot reweigh the evidence or
substitute [its] judgment for the administrative law judge's.” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016) (citation omitted).
III.

Analysis
Plaintiff argues that the ALJ improperly rejected the opinions of her treating

physician, Kathy Finch, M.D., other treating sources Nancy Stockton, PA-C, Debra
Jaccard, CNP, and Marissa Romero, CFNP, and consultative examiner John Vigil, M.D.
See Doc. 21 at 1. Plaintiff also contends that the ALJ’s Step Five finding is not
supported by substantial evidence because the VE testimony as to the number of jobs
in the national economy is unreliable. Id. The Court addresses each argument in turn.
A) Treating Physician Finch
Kathy Finch, M.D., treated Plaintiff from September 2008 until at least April 2012.
See AR at 249, 381. During her initial appointment, on September 30, 2008, Plaintiff
presented to Dr. Finch with complaints of increasing neck pain and a history of
Fibromyalgia. AR at 365. At that time, Plaintiff described her pain as “moderate.” AR at
365. Dr. Finch confirmed Plaintiff’s Fibromyalgia diagnosis, increased her dosage of
hydrocodone, and started her on Lyrica. AR at 366.
On December 23, 2008, Plaintiff presented for a recheck of her neck pain and
again described her pain as “moderate.” AR at 364. On November 5, 2009, Dr. Finch
increased Plaintiff’s hydrocodone prescription for a month. AR at 355. On November 11,
2009, Plaintiff presented for an annual exam. She reported that the extra hydrocodone
“really helps” and her dosage was permanently increased. AR at 352.

5

On March 18, 2010, Plaintiff sought FMLA paperwork from Dr. Finch’s office. AR
at 295. She reported that she was having more bad days than good and was taking a lot
of time off of work. AR at 295. On May 27, 2011, however, Plaintiff presented for a
physical and at that time reported that she felt well with “minor complaints,” including a
decreased energy level. AR at 290. On August 1, 2011, and again on September 1,
2011, Plaintiff presented with complaints of depression. AR at 339. Of note, Dr. Finch
reported that Plaintiff was “on a good mix of meds for fibromyalgia.” AR at 340.
Dr. Finch completed a Fibromyalgia Questionnaire on September 30, 2011 at the
request of the Administration. AR at 247-49. Dr. Finch indicated that she had been
treating Plaintiff since September 30, 2008, but that Plaintiff suffered from fibromyalgia
prior to establishing treatment with her. AR at 249. Dr. Finch noted that Plaintiff had 12
of 18 tender points, opined that Plaintiff would be unable to sustain an 8-hour workday
or 40-hour workweek and that the pain, fatigue, and other fibromyalgia symptoms would
interfere with Plaintiff’s ability to focus attention on work-related tasks in a competitive
work environment for increments of at least 2 hours at a time. AR at 249. Dr. Finch
indicated that Plaintiff would have variations from day-to-day in terms of her ability to
function and that she would have both good and bad days. AR at 249. Dr. Finch
indicated that Plaintiff had suffered from this degree of functional limitation even before
becoming Dr. Finch’s patient in 2008. AR at 249. Dr. Finch stated that she reached her
conclusions through a combination of clinical interviews, objective clinical observations,
consultation with other members of treatment staff, and objective testing. AR at 249.
On April 13, 2012, at Plaintiff’s last appointment with Dr. Finch, she presented
with symptoms of “myalgias, arthralgias, generalized fatigue, widespread pain and

6

morning stiffness” that had begun about six months prior. AR at 382. Plaintiff described
her pain as “moderate” in severity and “unchanged,” but was unsure whether the pain
was “worsening from actual fibromyalgia or recent stress.” AR at 382.
The ALJ addressed these visits and Dr. Finch’s Fibromyalgia Questionnaire in
her decision, see AR at 431, 433-34, and ultimately found that Dr. Finch’s conclusions
as to the severity of Plaintiff’s impairments “reduces the credibility of her opinion, as the
claimant was able to continue working full time until February 2011.” AR at 434 (citing
AR at 249). The ALJ also gave the “opinion little weight because treatment notes from
Dr. Finch document that the claimant felt well and had a normal attention span and
ability to concentrate and at another visit describe (sic) herself as having moderate
pain.” AR at 434 (citing AR at 290, 382).
By assigning Dr. Finch’s opinions as to the functional limitations imposed by
Plaintiff’s fibromyalgia “little weight” the ALJ effectively rejected those opinions. Chapo
v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (equating “according little weight” to an
opinion with “effectively rejecting” it); Crowder v. Colvin, 561 F. App’x 740, 742 (10th
Cir. 2014) (unpublished) (citing Chapo for this proposition); Ringgold v. Colvin, 644 F.
App’x 841, 844 (10th Cir. 2016) (unpublished) (same). It was certainly the ALJ’s
prerogative to do so, if warranted. However, the Tenth Circuit has cautioned that “[i]f the
ALJ rejects the opinion completely, [s]he must then give specific, legitimate reasons for
doing so.” Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins
v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)). Moreover, “[i]n choosing to reject
the treating physician's assessment, an ALJ may not make speculative inferences from
medical reports and may reject a treating physician's opinion outright only on the basis

7

of contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion.” Id. (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th
Cir. 2002)).
Thus, in order to ensure that an ALJ properly evaluates a treating physician’s
opinions “case law, the applicable regulations, and the Commissioner’s pertinent Social
Security Ruling (SSR) all make clear that in evaluating the medical opinions of a
claimant’s treating physician, the ALJ must complete a sequential two-step inquiry, each
step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir.
2011). First, the ALJ should determine whether the opinion is entitled to “controlling
weight.” Watkins, 350 F.3d at 1300. An ALJ is required to give the opinion of a treating
physician controlling weight if it is both: (1) “well-supported by medically acceptable
clinical and laboratory diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.” Id. (quotation omitted). “[I]f the opinion is deficient in either of
these respects, then it is not entitled to controlling weight.” Id.
Because the ALJ does not affirmatively state whether Dr. Finch’s opinions are
entitled to controlling weight, it appears that the ALJ may have skipped the first step
under the treating physician analysis and leapt directly to the second. In the past, this
Court has held that skipping the first step in the analysis constitutes reversible error.
Wellman v. Colvin, CIV 13-1122 KBM, Doc. 19 (D.N.M. Dec. 3, 2014). In fact, this result
appeared mandatory under Tenth Circuit law. See Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003) (“A finding at this stage (as to whether the opinion is either
unsupported or inconsistent with other substantial evidence) is necessary so that we
can properly review the ALJ’s determination on appeal.”) (emphasis added); see also

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Robinson, 366 F.3d at 1083 (noting that the ALJ failed to expressly state whether an
opinion would be afforded controlling weight); Daniell v. Astrue, 384 F. App’x 798, 801
(10th Cir. 2010) (unpublished) (quoting Watkins, 350 F.3d at 1300).
However, more recently the Tenth Circuit has indicated that where a reviewing
court can determine that an ALJ “implicitly declined to give the opinion controlling
weight” there is no ground for remand. Mays v. Colvin, 739 F.3d 569, 575 (10th Cir.
2014).4 Here, the ALJ’s decision to ascribe Dr. Finch’s opinion “little weight” shows that
she implicitly declined to give it controlling weight because she specifically found it the
opinion to be both unsupported by her treatment notes and, more importantly,
inconsistent with the fact that Plaintiff was able to work full-time from 2008 through
2011. Therefore, the Court hesitates to reverse the ALJ solely for failing to discuss
explicitly whether Dr. Finch’s opinion was entitled to controlling weight. See Perez v.
Colvin, CIV 15-0429 MCA-KBM, 2016 WL 8229939, at *6 (D.N.M. Oct. 12, 2016), report
and recommendation adopted, 2016 WL 8229937 (D.N.M. Nov. 7, 2016).
Even if a treating physician's opinion is not entitled to controlling weight,
“[t]reating source medical opinions are still entitled to deference and must be weighed
using all of the factors provided in 20 C.F.R. § 404.1527” at the second step of the

In that decision, the Tenth Circuit panel noted that the ALJ had not “expressly” stated whether
he had given the treating physician’s opinion “controlling weight.” Nevertheless, if it is clear that
the ALJ “implicitly” declined to give such an opinion controlling weight, reversal is inappropriate.
Id. (“Because we can tell from the decision that the ALJ declined to give controlling weight to Dr.
Chorley’s opinion, we will not reverse on this ground.”). See also Causey v. Barnhart, 109 F.
App’x 375, 378 (10th Cir. 2004) (unpublished) (“Implicit in the ALJ’s decision is a finding that Dr.
Waldrop’s opinion . . . is not entitled to controlling weight.”); see also Andersen v. Astrue, 319 F.
App’x 712, 721 (10th Cir. 2009) (unpublished) (“It is apparent that the ALJ concluded that these
opinions were not entitled to controlling weight. Although ordinarily the ALJ should have made
explicit findings to this effect . . . we are not troubled by the substance of the ALJ’s
determination.”
4

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ALJ’s analysis. Watkins v, 350 F.3d at 1300 (quoting SSR 96–2p, 1996 WL 374188, at
*4). The Tenth Circuit has summarized these factors as:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ's
attention which tend to support or contradict the opinion.
Krauser, 638 F.3d at 1331 (quoted authority omitted). An ALJ is “not required ‘to apply
expressly each of the six relevant factors in deciding what weight to give a medical
opinion.’” Razo v. Colvin, 663 F. App’x 710, 715 (10th Cir. 2016) (unpublished) (quoting
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)). Rather, an ALJ must simply
provide “good reasons” for the weight assigned to the treating physician’s opinion. Id.
As summarized above, the ALJ provided two reasons for rejecting Dr. Finch’s
opinion – the lack of supportability in her treatment notes and that the record
established that Plaintiff did in fact work full time during the time that Dr. Finch opined
she would be unable to sustain an 8-hour workday. These two reasons touch upon the
“the degree to which the physician's opinion is supported by relevant evidence” and the
“consistency between the opinion and the record as a whole,” See 20 C.F.R.
§ 404.1527(c)(3)-(4), and the Court finds that they satisfied the ALJ’s duty to provide
“good reasons” for rejecting Dr. Finch’s opinions. See, e.g. Williams v. Barnhart, 178 F.
App’x 785, 791 (10th Cir. 2006) (unpublished) (declining to disturb an ALJ’s RFC
determination that the Plaintiff could still work as a legal secretary when she worked for
six years with permanent restrictions identified by her physician); Cortes v. Colvin, CIV
15-9286 EFM, 2016 WL 6563720 at *9 (D. Kan. 2016) (“the record also shows that

10

Cortes has been able to work contrary to Dr. Shroyer’s opinion. . . . Thus, the ALJ
properly assessed Dr. Shroyer’s opinions under SSR 06-3p and gave good reasons for
rejecting Dr. Shroyer’s opinions.”).
In so finding, the Court rejects Plaintiff’s argument that the ALJ’s “choice to
reference only two (2) of Dr. Finch’s treatment notes which support her decision form an
incomplete basis to reject her opinion.” Doc. 21 at 16. This contention would have more
force if the two treatment notes identified by the ALJ (which are located in the AR at 292
and 382), were not consistent with the overall course of her treatment with Dr. Finch. As
noted above, Plaintiff’s pain is generally described as “moderate” in her encounters with
Dr. Finch, and Plaintiff has pointed to no evidence of record detracting from the ALJ’s
observation that “the claimant felt well and had a normal attention span and ability to
concentrate[.]” AR at 434. Accordingly, the Court will not reverse the ALJ for rejecting
the opinions of Dr. Finch.
B) Other “Treating” Sources
While the term “medical source” refers to almost any medical provider a claimant
may receive treatment from, the regulations draw a distinction between “acceptable
medical sources” and those that are not. See SSR 06-03p, 2006 WL 2329939 at *1.
Drawing this distinction is necessary, in part, because only “acceptable medical
sources” can be considered treating sources as defined in 20 C.F.R. § 404.1502, whose
medical opinions may be entitled to controlling weight. Id. at *2.
Still, “[i]t is the ALJ's duty to give consideration to all the medical opinions in the
record.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20
C.F.R. §§ 404.1527(c), 416.927(c)). “[Sh]e must also discuss the weight [s]he assigns

11

to such opinions.” Id. (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). While not
entitled to the same deference as an “acceptable medical source,” opinions from other
medical sources “are important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant evidence in the
file.” SSR 06-03P, 2006 WL 2329939 at *3.
Factors to be considered by an ALJ when evaluating an opinion from a provider
that does not qualify as an “acceptable medical source” include:
• How long the source has known and how frequently the source has seen
the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support an
opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the
individual's impairment(s); and
• Any other factors that tend to support or refute the opinion.
Id. at *4-5. “Not every factor for weighing opinion evidence will apply in every case[,]”
but, rather, “[t]he evaluation of an opinion from a medical source who is not an
‘acceptable medical source' depends on the particular facts in each case.” Id. at *5. “In
the case of a nonacceptable medical source, the ALJ’s decision is sufficient if it permits
us to follow the adjudicator’s reasoning.” Fulton v. Colvin, 631 F. App’x 498, 503–04
(10th Cir. 2015) (unpublished) (quoting Keyes–Zachary, 695 F.3d at 1164) (internal
alterations omitted).

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1. Physician’s Assistant Stockdale5
Nancy Stockdale, a Certified P.A., worked for Dr. Finch, see, e.g., AR at 295-97,
and she completed Family Medical Leave Act (FMLA) forms for Plaintiff in April 2009
and March 2010. Id. Ms. Stockdale indicated on the April 14, 2009 forms that Plaintiff
experiences extreme pain and fatigue on some days and could be expected to miss 2-3
days of work per month due to her symptoms. AR at 781-82. She further opined that
“pain prevents full functioning at work – concentration affected by pain.” AR at 782. A
year later, Ms. Stockdale opined that Plaintiff’s symptoms could be expected to cause
her to miss 2-6 days of work per month due to unpredictable and severe symptoms.
See AR at 770-71.
The ALJ gave little weight to Ms. Stockdale’s opinions “because the claimant
continued to be able to maintain her job until February, 2011.” AR at 431. The ALJ went
on to state that “[r]equiring FMLA does not necessarily mean that an individual is unable
to work.” AR at 431. The ALJ also noted that a physician’s assistant is not an
acceptable medical source, and that “[t]reatment notes from March 2010 report that
claimant was incapacitated once every three weeks due to her fibromyalgia. This alone
would not preclude employment.” AR at 431 (citing AR at 295).
Plaintiff argues that these reasons are “neither adequate nor legitimate,” Doc. 21
at 18, but the Court is inclined to disagree. As required by SSR 06-03P, the ALJ
considered whether Ms. Stockdale’s opinion was consistent with other evidence in the
record – that is, Plaintiff’s ability to continue working full-time despite her symptoms.

5

While Plaintiff’s opening brief identifies this provider as Nancy Stockton, PA-C, and faults the
ALJ for being unable to identify her by name, the Commissioner correctly points out that the PAC’s last name is actually Stockdale, not Stockton. Compare Doc. 21 at 17 with Doc. 25 at 17
and AR at 297.

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See SSR 06-03P, 2006 WL 2329939 at *4-5. The ALJ also considered Ms. Stockdale’s
level of expertise and contrasted her opinions as stated in the FMLA forms with
contemporaneous evidence of record. AR at 295 (indicating that Fibromyalgia
incapacitates Plaintiff once every 2-3 weeks). While the ALJ’s analysis could have been
more precise and could have employed more of the factors stated in SSR 06-03P, the
Court will not reverse her for her treatment of Ms. Stockdale’s opinions.
2. Certified Nurse Practitioner Jaccard
Debra Jaccard, CNP, treated Plaintiff for anxiety and depression from 2013
through 2015. During the course of her treatment of Plaintiff, Ms. Jaccard completed
two Medical Assessment of Ability to do Work-Related Activities (Mental) forms, which
the ALJ discussed and weighed. See AR at 434. As to these opinions, the ALJ noted
internal inconsistencies and “more limiting symptoms in 2013.” AR at 434. The ALJ
surmised that these differences suggested “an improvement in the claimant’s symptoms
or imprecise completion of the forms.” AR at 434. The ALJ also noted that Plaintiff never
alleged any difficulties getting along with others, and determined that Ms. Jaccard’s
opinions were entitled only to “little weight”
because she is not an examining and treating source and also because
she consistently assigned GAF6 scores of 60 and up to 70. These scores
are inconsistent with any marked limitations. Further, the claimant
reported improved symptoms with her medications. This improvement is
also not reflected in these statements.

6

“GAF” stands for “Global Assessment of Functioning.” As the Tenth Circuit has noted, “[t]he
GAF is a subjective rating on a scale of 1 to 100 of ‘the clinician's judgment of the individual's
overall level of functioning.’” Holcomb v. Astrue, 389 F. App'x 757, 759 n.1 (10th Cir. 2010)
(quoting American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
(Text Revision 4th ed. 2000) at 32). Although the current Diagnostic and Statistical Manual has
abandoned the use of GAF scores, see Am. Psychiatric Ass'n Diagnostic and Statistical Manual
of Mental Disorders (DSM-V) at 16 (5th ed. 2013), they continue to be used in psychiatric
practice, as evidenced by this case.

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AR at 434. The Court finds that most of the ALJ’s reasons for discounting Ms. Jaccard’s
opinions are supported by substantial evidence, and so will not reverse the ALJ for
effectively rejecting them.
On April 26, 2013, Plaintiff presented to Ms. Jaccard reporting that she continued
to struggle with anxiety and depression, chronic pain, and sleep issues. AR at 855. On
May 15, 2013, Plaintiff told Ms. Jaccard that “things aren’t going much better. My
husband still hasn’t sent any money home and things are really tight.” AR at 855. Ms.
Jaccard noted low energy and a depressed mood, and assigned a GAF score of 60. AR
at 855. On June 6, 2013, Plaintiff reported that she was feeling a little calmer but was
still “really depressed” and had no motivation. AR at 851. She also reported that her
family still had financial issues. AR at 852. Ms. Jaccard noted low energy and a
depressed affect and assigned a GAF score of 60. AR at 852.
On June 7, 2013, Ms. Jaccard filled out a Medical Assessment of Ability to do
Work-Related Activities (mental) form in conjunction with Plaintiff’s disability claim. AR
at 859-860. On that form Ms. Jaccard indicated that Plaintiff had moderate to marked
limitations in all areas of sustained concentration and persistence, moderate to marked
limitations in all but one area of social interaction, and moderate limitations in all areas
of adaptation. AR at 859-860. Ms. Jaccard summarized her findings by stating that
Plaintiff has severe anxiety, which impacts her ability to cope, focus and concentrate
and to be able to manage a normal workload. AR at 860. Ms. Jaccard also opined that
Plaintiff met the agency’s listing for affective disorders. AR at 861-62.
On September 11, 2014, Plaintiff told Ms. Jaccard “I am still waiting to hear about
my disability and I still am struggling with depression and anxiety.” AR at 710. At that

15

time Ms. Jaccard noted that Plaintiff’s mood was anxious and mildly to moderately
depressed and she assigned a GAF score of 60. AR at 710.
On November 13, 2014, Ms. Jaccard noted that Plaintiff was denied disability for
the second time and was feeling “more depressed and ‘blah.’” AR at 711. Ms. Jaccard
adjusted Plaintiff’s medications and assigned a GAF score of 60. AR at 711. On
January 15, 2015, Plaintiff stated that she was “doing about the same.” AR at 712. She
reported that she still had not heard anything about her disability claim and so was
getting “pretty frustrated about it.” AR at 712. Ms. Jaccard assigned a GAF score of 60
and continued Plaintiff’s medications. AR at 712.
On June 16, 2015, Plaintiff reported to Ms. Jaccard that she was working two
days a week and taking care of her preschool-age granddaughter two days a week. AR
at 655. At that time Ms. Jaccard indicated that Plaintiff’s response to treatment was
“good” and she assigned a GAF score of 65. AR at 655. On August 14, 2015, Plaintiff
reported that she was still working part time and waiting to hear about her disability
claim. AR at 679. Despite noting that Plaintiff’s report that her depression was made
worse by her new diabetes medication, Ms. Jaccard indicated that Plaintiff’s response to
treatment was “fair” and she assigned a GAF score of 70. AR at 679.
On October 21, 2015, Ms. Jaccard completed a second Medical Assessment of
Ability to do Work-Related Activities (Mental) form for Plaintiff. AR at 791. On this form
Ms. Jaccard opined that Plaintiff was markedly limited in the ability to complete a normal
workday and workweek without interruptions from psychological based symptoms and
to perform at a consistent pace without an unreasonable number and length of rest
periods. AR at 791. Ms. Jaccard also noted moderate limitations in various aspects of

16

understanding and memory, sustained concentration and persistence, social interaction
and adaptation. AR at 791-92. Ms. Jaccard went on to opine that Plaintiff meets the
listing for Affective and Anxiety-Related Disorders. AR at 793.
Given their longitudinal treatment relationship, Plaintiff correctly takes issue with
the ALJ’s statement that Ms. Jaccard was “not an examining and treating source.”7 Still,
it appears that the ALJ’s other reasons are in accord with the factors stated in SSR 0603p, and the Court can follow the ALJ’s reasoning.
For instance, the ALJ addressed the degree to which Ms. Jaccard’s treatment
notes supported her opinions (pointing out “internal inconsistencies”). In this regard, the
ALJ specifically referenced Ms. Jaccard’s 2013 finding that Plaintiff would be markedly
impaired in social functioning and contrasted it with her 2015 finding that Plaintiff would
have no such restriction. AR at 434. As the ALJ permissibly opined, this difference
signals either an improvement in Plaintiff’s functioning over the course of two years, or
“imprecise completion of the forms.” AR at 434. While the Court agrees with Plaintiff that
“it is reasonable to believe that Ms. O’Mary showed reduction in some symptoms over a
period of two years,” Doc. 21 at 19, Ms. Jaccard’s treatment notes do not reflect such a
dramatic improvement.
Plaintiff also maintains that the ALJ should not have relied upon Plaintiff’s GAF
scores to discount the marked limitations identified by Ms. Jaccard. See Doc. 21 at 19
(“as the Commissioner often reminds claimants, the GAF assessment is a snapshot of
what a health professional estimates a claimant’s functioning to be.” (quoting Groberg v.
Astrue, 505 F. App’x 763, 771 (10th Cir. 2012) (unpublished), for the proposition that “a

7

As the Commissioner points out, however, even treating nurses and physician assistants are not
acceptable medical sources capable of giving medical opinion. Doc. 25 at 17.

17

single ‘good day’ at the doctor’s office does not necessarily signify a lack of any
occupational effects from mental disorders.”)). Plaintiff’s argument would have more
force if she did not consistently have GAF scores which ranged from 60-70, indicating
moderate symptoms, at worst, and mild symptoms, at best. See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) at
32.8 Moreover, Plaintiff’s testimony that she has seen improvement with her mental
health medications, AR at 475, buttresses consideration of the GAF scores. It was
therefore reasonable for the ALJ to discount Ms. Jaccard’s opinions based on the GAF
scores she regularly assigned.
Plaintiff does not address the ALJ’s other reasons for discounting Ms. Jaccard’s
opinions, and the Court finds no fault in them. For instance, it was appropriate for the
ALJ to contrast the absence of any alleged difficulty in getting along with others to Ms.
Jaccard’s limitation of Plaintiff’s abilities as to social functioning. Compare AR at 473
(testimony) with 792 (second Medical Assessment).
Certified Family Nurse Practitioner Romero
Plaintiff presented to Marissa Romero, CFNP, on October 4, 2010, complaining
of chronic, worsening, fatigue, and headaches, but not of a severity as to limit her
activities. AR at 727. Ms. Romero diagnosed myalgia and myositis unspecified, but
declined to prescribe medication absent documentation of a formal diagnosis of
fibromyalgia. AR at 728-29. Ms. Romero continued to treat Plaintiff over the following
8

According to the DSM IV, a GAF score ranging from 51-60 indicates “[m]oderate symptoms
(e.g. flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers)[,]” while a score ranging from 61-70 indicates “[s]ome mild symptoms (e.g., depressed
mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships.” Id.

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years and completed Medical Assessment of Ability to do Work-Related Activities
(physical) forms in conjunction with Plaintiff’s disability claim on May 23, 2013 and
October 8, 2015. AR at 857, 795.
On May 23, 2013, Ms. Romero opined that Plaintiff’s conditions limit her to lifting
less than 10 pounds occasionally and 5 pounds frequently. AR art 857. Ms. Romero
further opined that Plaintiff could stand and/or walk less than 2 hours in an 8-hour
workday and sit less than 4 hours in an 8-hour workday. AR at 857. Ms. Romero also
completed a Medical Assessment of Ability to do Work-Related Activities (non-physical)
form for Plaintiff, noting that Plaintiff’s severe pain would cause moderate to marked
limitations in all but one area of mental functioning. AR at 858.
Two years later, on October 8, 2015, Ms. Romero opined that Plaintiff’s
conditions limit her to lifting less than five pounds, standing and walking less than 2
hours in an 8-hour workday, and sitting less than 6 hours in an 8-hour work day. AR at
795. Ms. Romero also completed a Medical Assessment of Ability to do Work-Related
Activities (non-physical) form for Plaintiff’s application. AR at 796. On this form, Ms.
Romero opined that Plaintiff was moderately impaired in all areas of functioning with the
exception of maintaining physical effort for long periods without a need to decrease
activity or pace, which Ms. Romero opined that Plaintiff was markedly impaired. AR at
796.
The ALJ gave Ms. Romero’s opinions “little weight” because her treatment notes
were “very duplicative and imprecise and provided little insight into the changes in the
claimant’s functioning.” AR at 434. The ALJ also noted that Ms. Romero “is not an
acceptable medical source and her treatment of the claimant was conservative. The

19

claimant continued to be able to ambulate without an assistive device and never
mentioned any limitations with respect to lifting[.]” AR at 435.
Plaintiff admits that Ms. Romero’s treatment notes are duplicative, Doc. 21 at 21,
but she argues that the restrictions Ms. Romero identified are nonetheless consistent
with those proscribed by Ms. Jaccard and consultative examiner Vigil. Id. at 21-22.
Plaintiff argues that had the ALJ accepted Nurse Practitioner Romero’s limitations then
a more restrictive RFC would have resulted. Doc. 21 at 22. While this may be true, the
ALJ’s reasons for discounting the opinions are supported by substantial evidence and
the Court can follow the ALJ’s reasoning. Therefore, the Court will not reverse the ALJ
for her treatment of Ms. Romero’s opinions.
To say that Ms. Romero’s treatment notes are “duplicative” and “imprecise” is an
understatement. Records from 2014 through 2015 are almost identical and are in some
places internally inconsistent.9 The Court therefore agrees that these records “provided
little insight into the changes in the claimant’s functioning” over the course of her
treatment with Ms. Romero, and provide little support for the medical assessments she
submitted in aid of Plaintiff’s disability application. Moreover, the ALJ acceptably
discounted the opinion on the basis that Ms. Romero is not an acceptable medical

9

For example, on December 11, 2014, Plaintiff presented with chronic pain. According to the
records, Plaintiff rated her pain as 7/10 and described it as originating in her neck and back, and
legs. AR at 815. Ms. Romero noted a full range of motion in Plaintiff’s head and neck and a
normal gait. AR at 815. These records appear to have been duplicated for Plaintiff’s follow-up
appointments on April 7, 2015, AR at 813, and May 7, 2015. AR at 811. Likewise, on June 25,
2015, Plaintiff presented to Ms. Romero complaining of worsening foot pain “occurring in a
persistent pattern for 6 months (+).” AR at 805. Gait was noted as both “slow and cautious” and
“normal.” AR at 805-06. These treatments notes appear to have been duplicated for Plaintiff’s
following visits with Ms. Romero, on July 23, 2015, AR at 803-04, August 20, 2015, AR at 80102, and September 17, 2015, AR at 799-800.

20

source, that her treatment of Plaintiff was conservative, and that there was no support in
the record for Ms. Romero’s opinions as to Plaintiff’s ability to ambulate and lift.
C) Consultative Examiner Vigil
John Vigil, M.D., examined Plaintiff at her attorney’s request on June 28, 2013.
AR at 842. Dr. Vigil also reviewed records from Dr. Finch’s office. AR at 843. At the time
of her evaluation Plaintiff rated her pain as an 8/10. AR at 845. Dr. Vigil observed that
she walked into the examination room with “a slow, stiff, and antalgic gait.” AR at 845.
Dr. Vigil also noted a decreased range of motion in Plaintiff’s back but a normal range of
motion in Plaintiff’s knees. AR at 845. Dr. Vigil diagnosed Plaintiff with chronic pain,
arthritis, fibromyalgia, and depression/anxiety. AR at 846. He opined that Plaintiff “is
totally and completely disabled secondary to her chronic pain and co-morbid psychiatric
conditions.” AR at 846. However, Dr. Vigil went on to state that “[i]t is my opinion that
Ms. Griego’s (sic) disabilities, including her chronic pain preclude her from performing
work above a sedentary level on a full-time and sustained basis from at least 2011.” AR
at 846. Dr. Vigil completed a Medical Assessment of Ability to do Work-Related
Activities (non-physical) form, noting that Plaintiff would have several marked limitations
in her abilities to perform non-physical work activities. AR at 848. Dr. Vigil also
completed a Medical Assessment of Ability to do Work-Related Activities (physical)
form, opining that Plaintiff could lift no more than five pounds, could stand and walk less
than 2 hours in an 8-hour workday, and sit less than 4 hours in an 8-hour workday. AR
at 849.
The ALJ gave Dr. Vigil’s opinion “no weight” for several reasons. See AR at 435.
The first two, that “he was hired by the claimant’s representative and is not a treating

21

doctor,” have been specifically rejected by the Tenth Circuit as legitimate reasons for
rejecting an opinion. See Quintero v. Colvin, 642 F. App’x 793, 797 (10th Cir. 2016)
(unpublished) (“More than 13 years ago, this court held in McGoffin that a physician’s
advocacy posture is an insufficient reason to reject a medical opinion.”); Crowder v.
Colvin, 561 F. App’x 740, 743 (10th Cir. 2014) (unpublished) (rejecting the reasoning
that a medical opinion is “less trustworthy when it is sought or obtained by the claimant”
and stating that “[a]lthough the lack of a treating relationship is relevant to the weight to
be afforded an opinion, it is not grounds for simply rejecting an opinion.”); Chapo v.
Astrue, 682 F.3d 1285 (10th Cir. 2012) (“The Commissioner has not cited a single
authority for the facially dubious proposition that the opinion of an examining medical
source is, as such, dismissible.”). The Commissioner effectively concedes this point.
The Commissioner argues that this Court should nonetheless “affirm because the
ALJ gave other valid reasons for discounting Dr. Vigil’s opinion.” Doc. 25 at 16
(emphasis added). The Court agrees.
Dr. Vigil’s findings are considered an “examining medical-source opinion.”
Ringgold, 644 F. App’x at 843 (citing Chapo, 682 F.3d at 1291; 20 C.F.R.
§§ 404.1527(c)(1), 416.927(c)(1)). “An examining medical-source opinion ‘may be
dismissed or discounted, of course, but that must be based on an evaluation of all of the
factors set out in the . . . regulations and the ALJ must provide specific, legitimate
reasons for rejecting it.’” Id. The relevant factors include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon

22

which an opinion is rendered; and (6) other factors brought to the ALJ's
attention which tend to support or contradict the opinion.
Id. (citing Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.2003); Chapo, 682 F.3d at
1291; 20 C.F.R. §§ 404.1527(c), 416.927(c)). “The ALJ is not required to mechanically
apply all of these factors in a given case. . . . [i]t is sufficient if [s]he ‘provide[s] good
reasons in [her] decision for the weight [s]he gave to the [physician’s] opinions.’” Id.
(quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)).
Here, setting aside the impermissible reasons cited by the ALJ, she rejected Dr.
Vigil’s opinion because “[h]e only saw her on one occasion and although he reported
that her gait was slow and antalgic, other treatment notes from 2013 noted a normal
gait.” AR at 435 (citing administrative exhibits 11F/8, 12F/5, 14F/14, 18). These two
reasons touch upon the treatment relationship (or lack thereof) between Plaintiff and Dr.
Vigil, and the consistency between the opinion and the record as a whole. To be sure,
the ALJ’s observation that no contemporaneous treatment notes describe Plaintiff’s gait
as anything other than normal is supported by the record. See AR at 390, 400, 403,
414, 576, 581, 585, 724, 852, 855. Accordingly, while the Court would have obviously
preferred that the ALJ supported her rationale with additional regulatory factors, it will
not disturb her decision to reject Dr. Vigil’s opinion for the reasons stated.
D) The ALJ’s Step Five Findings
Plaintiff’s finally contends that the ALJ’s Step Five findings are not supported by
substantial evidence because the VE’s testimony regarding the number of jobs in the
national economy is “not reliable.” Doc. 21 at 24. As noted above, the VE in this case
testified that given Plaintiff’s age, education, work experience, and RFC, she is able to
perform occupations such as Electronics Worker, Dictionary of Occupational Titles

23

(“DOT”) No. 726.687-010 (200,000 jobs available nationally), Press Operator, DOT No.
363.684-018 (50,000 jobs available nationally), and Fruit Distributer, DOT No. 921.685046 (39,000 jobs available nationally). AR at 436. Plaintiff argues that the VE’s numbers
for both the electronics worker and fruit distributor jobs are unsupported because “[t]he
Department of Labor’s Occupational Outlook Handbook provides the number of
positions available in the national economy for broad categories of jobs, but not for
individual DOT listings like those to which VE Griner (sic) testified.” Doc. 21 at 25.
It is true that “[t]he number of available jobs in a particular category is not
included within the DOT.” Rivera v. Berryhill, CIV 16-0048 RB/KBM, 2017 WL 1906961,
at *11 (D.N.M. Mar. 16, 2017). “Consequently, the ALJ must either look to other reliable
sources that provide the numbers of jobs available in the national economy for a
particular DOT number, or the ALJ must obtain the testimony of a vocational expert to
provide that evidence.” Therrell v. Berryhill, CIV 15-0782 LF, 2017 WL 1437316, at *6
(D.N.M. Apr. 21, 2017). “The whole point of vocational testimony is to go beyond facts
already established through publications eligible for judicial or administrative notice and
provide an alternative avenue of proof.” Rogers v. Astrue, 312 F. App'x 138, 142 (10th
Cir. 2009) (unpublished).
The Tenth Circuit has always been highly deferential towards VE testimony, and
has “accepted without reservation VE testimony concerning the number, percentage
and location of jobs within a claimant's capacity.” Rivera, 2017 WL 1906961, at *11
(citing Trimiar v. Sullivan, 966 F.2d 1326, 1331 (10th Cir. 1992)); see also Rogers v.
Astrue, 312 F. App'x 138, 141 (10th Cir. 2009) (affirming a Step-Five finding as to the

24

availability and number of jobs which relied upon a VE's “professional placement
experience.”). For this reason alone, the Court could affirm.
Plaintiff’s arguments are based entirely on speculation as to what sources the VE
may have employed in this case.10 Yet, following Plaintiff’s logic and citations to various
internet sources fails to adduce numbers which match those provided by the VE, and
Plaintiff has not identified a “reliable” source of job data for the individual DOT jobs
identified by the VE in this case. While Plaintiff argues this is the agency’s burden, the
fact remains that Plaintiff’s counsel was present at the hearing when the VE testified
and, though provided with the opportunity to question the VE as to the source of the
number of jobs provided, declined to do so. See AR at 487-88. The Court will not
reward Plaintiff for passively accepting the VE’s conclusions at the hearing only to now
speculate that his premises were unreliable.
IV.

Conclusion
Plaintiff has failed to demonstrate that the ALJ committed harmful, reversible,

error in this case.
Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (Doc. 21) is denied.
IT IS FURTHER ORDERED that a Final Order pursuant to Rule 58 of the Federal

10

Plaintiff speculates that the VE relied upon OES group numbers from the Bureau of Labor
Statistics. See Doc. 21 at 24-25. “The Occupational Employment Statistics (‘OES’) Survey is a
federal-state cooperative program between the U.S. Department of Labor's Bureau of Labor
Statistics and state workforce agencies that provides national occupational employment and
wage rate estimates. Therrell, 2017 WL 1437316, at *6 (citations omitted). “Job data in the OES
naturally varies from the DOT, as the OES classifies jobs by census codes, known as Standard
Occupational Classification (“SOC”) codes, rather than DOT codes.” Id. Still, “Courts in this
district have found that the OES is a reliable source for the basis of VE testimony, and OES
groupings are routinely used throughout the Tenth Circuit to support step five findings.” Id.

25

Rules of Civil Procedure be entered affirming the decision of the Acting Commissioner
and dismissing this action with prejudice.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

26