Salazar v. Social Security Administration

Filing 32

MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa granting 21 MOTION to Remand or Reverse. (kc)

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

ANNA MARIE SALAZAR,
Plaintiff,
vs.

Civ. No. 16-271 KK

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 16) filed December 15, 2016, in support of Plaintiff Anna Marie Salazar’s (“Plaintiff”)
Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying
Plaintiff’s claim for Title II disability insurance benefits and Title XVI supplemental security
income benefits.

On February 7, 2017, Plaintiff filed her Motion to Remand or Reverse

(“Motion”). (Doc. 21.) The Commissioner filed a Response in opposition on May 17, 2017
(Doc. 27), and Plaintiff filed a Reply on June 1, 2017. (Doc. 30.) The Court has jurisdiction to
review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having
meticulously reviewed the entire record and the applicable law and being fully advised in the
premises, the Court finds the Motion is well taken and is GRANTED.

1

Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Carolyn Colvin as the Acting
Commissioner of the Social Security Administration. Fed. R. Civ. P. 25(d).

2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 6, 9, 11.)

I. Background and Procedural Record
Claimant Anna Marie Salazar (“Ms. Salazar”) alleges that she became disabled on
October 1, 2009, at the age of thirty-one because of panic/anxiety attacks, post-traumatic stress
disorder, major depression, cyst on left wrist, hip and back pain, insomnia, and fibromyalgia.
(Tr. 242-45, 288.3) Ms. Salazar completed the ninth grade, and worked as a hotel night auditor,
health department receptionist, retail sales representative, and waitress. (Tr. 289.)
On March 23, 2011, Ms. Salazar protectively filed an application for Social Security
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42
U.S.C. § 401 et seq.4 (Tr. 162, 242-45.) Ms. Salazar’s application was initially denied on
August 11, 2011. (Tr. 162, 221-24.) It was denied again at reconsideration on July 30, 2012.
(Tr. 150, 212-14.)

On December 20, 2012, Ms. Salazar requested a hearing before an

Administrative Law Judge (“ALJ”). (Tr. 209.) The ALJ conducted a hearing on January 10,
2014. (Tr. 577-605.) Ms. Salazar appeared in person at the hearing with attorney Helen Lopez.
(Id.) The ALJ took testimony from Ms. Salazar (Tr. 580-99), and an impartial vocational expert
(“VE”), Judith Beard. (Tr. 599-604.) On March 14, 2014, the ALJ issued an unfavorable
decision. (Tr. 136-49.)
On March 4, 2016, the Appeals Council issued its decision denying Ms. Salazar’s request
for review and upholding the ALJ’s final decision. (Tr. 3-6.) On April 7, 2016, Ms. Salazar
timely filed a Complaint seeking judicial review of the Commissioner’s final decision. (Doc. 1.)

3

Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 16) that was lodged with the Court on
December 16, 2016.
4

The ALJ’s determination indicates that on March 31, 2011, Ms. Salazar protectively filed an filed an application
for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. The Administrative
Record does not contain Ms. Salazar’s Title XVI application and/or denials.

2

II. Standard of Review
We review the Commissioner’s decision to determine whether the factual findings are
supported by substantial evidence in the record and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley
v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). A decision is based on substantial evidence
where it is supported by “relevant evidence . . . a reasonable mind might accept as adequate to
support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial
evidence if it is overwhelmed by other evidence in the record[,]” Langley, 373 F.3d at 1118, or
“constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The
Commissioner’s decision must “provide this court with a sufficient basis to determine that
appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th
Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the
record must demonstrate that the ALJ considered all of the evidence,” and “the [ALJ’s] reasons
for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
In considering an application for disability insurance benefits, the Commissioner uses a
five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482
U.S. 137, 140 (1987). The claimant bears the burden of establishing a prima facie case of
disability at steps one through four. 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv);
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the claimant successfully meets
that burden, the burden of proof shifts to the Commissioner at step five to show that the claimant
is able to perform other work in the national economy, considering the claimant’s RFC, age,

3

education, and work experience. 20 C.F.R. §§ 404.1520(a)(v), 416.920(a)(v); Grogan, 399 F.3d
at 1261.
III. Analysis
The ALJ made his decision that Ms. Salazar was not disabled at step five of the
sequential evaluation. He found that Ms. Salazar had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that
it should involve no more than incidental public contact; she can perform detailed
but not complex work instructions; and she can perform no more than frequent
reaching, handling, or fingering.
(Tr. 143.) Based on the RFC and the testimony of the VE, the ALJ concluded that Ms. Salazar
was incapable of performing her past relevant work, but that there were jobs that existed in
significant numbers in the national economy that the claimant could perform. (Tr. 148.)
Ms. Salazar asserts several arguments in support of her Motion. Ms. Salazar argues that
(1) the ALJ erred at step three by failing to properly consider treating psychiatrist Margaret
Conolly, M.D.’s medical source statement regarding Ms. Salazar’s ability to do work-related
mental activities; (2) the ALJ erred at step five by failing to state the correct burden of proof;
(3) the ALJ failed to determine whether the VE’s testimony was consistent with the DOT; (4) the
Appeals Council erred in rejecting new additional evidence; (5) the ALJ erred in rejecting
treating physician opinions; (6) the ALJ’s RFC and credibility assessments were contrary to the
legal standards and not supported by substantial evidence; and (7) the ALJ failed to develop the
record by recontacting Ms. Salazar’s treating physicians, if necessary. (Doc. 23 at 10-28.) The
Court finds grounds for remand as discussed below.

4

A.

Opinion Evidence and RFC Assessment

Ms. Salazar argues that the ALJ erred in weighing the opinion evidence. In particular,
she asserts that the ALJ improperly weighed her treating physician opinions, and improperly
accorded great weight to the State Agency medical consultant opinions when their opinions were
rendered well before her treating physician opinions. (Doc. 23 at 19-25.) She further asserts that
the ALJ’s RFC assessment is not supported by substantial evidence because it was based on the
outdated State Agency opinions and ignored the contemporaneous treating physician opinions
that demonstrated greater functional limitations. (Id. at 25-27.) The Court agrees.
1.

Physical Impairments
a.

Martin Trujillo, M.D.

On August 8, 2011, Ms. Salazar presented to examining State Agency medical consultant
Martin Trujillo, M.D., for a disability determination examination. (Tr. 486-88.) Ms. Salazar
reported a history of significant posterior neck, shoulder, and upper back pain, along with
headaches. (Tr. 486). She also reported a history of depression, anxiety, and posttraumatic
stress disorder. (Id.) She told Dr. Trujillo she was diagnosed with fibromyalgia approximately
five months earlier by her primary care physician, but was unaware of trigger point pain or
laboratory values done to rule out rheumatological or autoimmune disorders. (Id.) Dr. Trujillo’s
physical exam was essentially unremarkable, and he noted there was “no tenderness to muscle
palpation or specific trigger point pain.” (Tr. 487.) Dr. Trujillo’s impression included, inter
alia, depression/anxiety, PTSD, possible bipolar disorder, and possible fibromyalgia.

(Id.)

Dr. Trujillo discussed that Ms. Salazar’s primary problem was her psychiatric status and its

5

relationship with her somatic complaints. (Tr. 488.) He recommended, inter alia, a psychiatric
and rheumatological evaluation.5 (Id.)
The ALJ determined that Dr. Trujillo’s physical exam supported his RFC assessment.6
(Tr. 147.)
b.

Misbah Zmily, M.D.

On December 23, 2013, Ms. Salazar began treating with primary care physician Misbah
Zmily, M.D. (Tr. 564-66.) Her chief complaints were migraine headaches and an inability to
sleep well. (Tr. 564.) She reported a decline in her health, weakness, fatigue, and headaches.
(Tr. 565-66.) On physical exam, Dr. Zmily noted, inter alia, diffuse tenderness over the trigger
points of fibromyalgia. (Tr. 565-66.) Dr. Zmily completed a Fibromyalgia Questionnaire and
diagnosed Ms. Salazar with fibromyalgia based on a complete history, physical exam, and
complete blood work up. (Tr. 301-02.) He assessed her prognosis as fair. (Tr. 302.) Dr. Zmily
also completed an Exertional Limitations form and assessed that Ms. Salazar could occasionally
lift and/or carry less than 10 pounds; frequently lift and/or carry less than 10 pounds; stand
and/or walk for less than 2 hours in an 8 hour workday; sit for less than about 6 hours in an 8
hour workday; must periodically alternate sitting and standing to relieve pain or discomfort; must
periodically lie down during the day; and has limited push and/or pull in the upper and lower

5

There is no evidence in the Administrative Record that the recommended evaluations were completed. However,
nonexamining State Agency psychological consultant Elizabeth Chiang, M.D., noted at reconsideration that
“[a]ttempts were made to gather additional information and a physical and psych CE were scheduled,” but that
Ms. Salazar “did not keep either of these appointments despite reminders and her confirmation that she would
attend.” (Tr. 318.)
6

The ALJ did not expressly weigh Dr. Trujillo’s opinion. The ALJ stated he gave limited weight to the opinions of
the nonexamining state agency physicians as to the nature and severity of Ms. Salazar’s physical impairments and
functioning, who determined her physical impairments were not severe. (Tr. 146.) The ALJ stated he gave greater
accommodation to Ms. Salazar’s subjective complaints of pain, and stated that his physical RFC assessment was
supported by Dr. Trujillo’s report of Ms. Salazar’s generally unremarkable physical examination. (Tr. 146-147.)

6

extremities. (Tr. 300.) Dr. Zmily based his assessment on Ms. Salazar’s diffuse muscle ache
and pain. (Id.)
Ms. Salazar saw Dr. Zmily again January 7, 2014, February 4, 2014, and March 4, 2014,
although the ALJ did not have the benefit of these records.7 (Tr. 567-59, 570-72, 573-75.)
Dr. Zmily noted diffuse tenderness over the trigger points of fibromyalgia, along with diffuse
muscle tenderness, physical exam. (Id.) Dr. Zmily consistently assessed fibromyalgia, fatigue,
migraines, generalized anxiety disorder, and irritable bowel syndrome. (Id.) His treatment plan
included prescribing Relafen, Topamax, Flexeril, Klonopin, and Depakote. (Id.)
The ALJ accorded little weight to Dr. Zmily’s opinion. (Tr. 146.) He explained that
Dr. Zmily completed the Fibromyalgia Questionnaire and Exertional Limitation forms after
having seen Ms. Salazar for the first time, and that there was no indication of what treatment, if
any, he prescribed. (Tr. 146.) The ALJ further explained that the limitations Dr. Zmily assessed
were overly restrictive in view of the claimant’s ability to drive a car, go to church and to stores,
care for her five month old son, and perform activities of daily living independently. (Tr. 146.)
The ALJ also explained that while Dr. Zmily circled all possible tender point sites on the
fibromyalgia diagram, Dr. Trujillo reported that Ms. Salazar did not have tenderness to muscle
palpation or specific trigger points. (Id.)

7

In seeking review of the ALJ’s determination, Ms. Salazar submitted additional evidence that included treatment
notes from Dr. Zmily (La Familia Primary Care) dated December 23, 2013, through January 14, 2016. The Appeals
Council made the La Familia Primary Care records dated December 23, 2013, through March 4, 2014, a part of the
record because they were dated prior to the ALJ’s determination. (Tr. 7.) The Appeals Council determined that the
records after that date were not related to the relevant period of time. (Id.)

7

2.

Mental Impairments
a.

Suzanne Castro, Psy.D.

On August 5, 2011, State agency nonexamining psychological consultant Suzanne
Castro, Psy.D., reviewed Ms. Salazar’s medical records8 and prepared a Psychiatric Review
Technique Form (“PRTF”) and a Mental Residual Functional Capacity Assessment (“MRFCA”).
(Tr. 489-500.) In Section I of the MRFCA, Dr. Castro assessed that Ms. Salazar was slightly
limited in her ability (1) to remember locations and work-like procedures; (2) to understand and
remember very short and simple instructions; (3) to carry out very short and simple instructions;
(4) to sustain an ordinary routine without special supervision; (5) to make simple work-related
decisions; (6) to ask simple questions or request assistance; (7) to maintain socially appropriate
behavior and to adhere to basic standards of neatness and cleanliness; (8) to respond
appropriately to changes in the work setting; (9) to be aware of normal hazards and take
appropriate precautions; (10) to travel in unfamiliar places or use public transportation; and
(11) to set realistic goals or make plans independently of others. (Tr. 489-91.) Dr. Castro also
assessed that Ms. Salazar was moderately limited in her ability to (1) understand and remember
detailed instructions; (2) to carry out detailed instructions; (3) to maintain attention and
concentration for extended periods; (4) to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; (5) to work in coordination with or in
proximity to others without being distracted by them; (6) to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a

8

Dr. Castro reviewed records from the Family Practice of Raton from August 2008 through July 2010
demonstrating Ms. Salazar’s history of depression, insomnia and anxiety. (Tr. 502, 509-511.) Dr. Castro reviewed
records related to Ms. Salazar’s short inpatient stay for suicidal attempt . (Tr. 502, 509, 513.) Dr. Castro reviewed
Ms. Salazar’s treating psychiatrist Dr. Margaret Conolly’s notes from October 2010 through May 2011. (Tr. 502,
524, 525, 526, 527-29.)

8

consistent pace without an unreasonable number and length of rest periods; (7) to interact
appropriately with the general public; (8) to accept instructions and respond appropriately to
criticism from supervisors; and (9) to get along with coworkers or peers without distracting them
or exhibiting behavioral extremes. (Id.) In Section III of the MRFCA, Dr. Castro explained that
[c]laimant retains the capacity to understand, remember, and carry out simple,
routine instructions; relate appropriately to co-workers, supervisors, and the
general public on a superficial basis; utilize reasonable judgment in work-like
settings; and sustain the level of attention/concentration necessary to complete a
routine workday of detailed tasks without significant interruptions from
psychologically-based symptoms.
(Tr. 491.)9
The ALJ accorded significant weight to Dr. Castro’s and Dr. Chiang’s assessments with
regard to the nature and severity of Ms. Salazar’s mental impairments and functioning.
(Tr. 147.)
b.

Margaret Conolly, M.D.

On August 6, 2010, Ms. Salazar sought mental health treatment at Tri-County
Community Services, Inc., following a recent admission to Miners’ Colfax-Medical Center for
suicidal ideation, depression, and an open wound to her left wrist.

(Tr. 513, 515.)

On

October 18, 2010, she was evaluated by psychiatrist Margaret Conolly, M.D. (Tr. 466-68.)
Dr. Conolly noted Ms. Salazar’s histories,10 conducted a mental status exam, and assessed
post-traumatic stress syndrome, a five year history of recurrent major depression, and daily panic
attacks. (Tr. 468.) Dr. Conolly indicated Axis I diagnoses of major depressive disorder, PTSD,

9

On July 30, 2012, State agency nonexamining medical consultant Elizabeth Chiang, M.D., reviewed Ms. Salazar’s
medical records at reconsideration. (Tr. 318.) Dr. Chiang affirmed Dr. Castro’s August 5, 2011, mental assessment.
(Tr. 318.)
10

History of Present Illness, Substance Abuse History, Past Psychiatric History, Social History, Family History and
Medical History. (Tr. 527-28.)

9

and panic disorder, and assigned a GAF score of 40.11 (Id.) Dr. Conolly prescribed Sertraline
and Gabapentin, and instructed Ms. Salazar to follow up with psychotherapy. (Id.) Ms. Salazar
saw Dr. Conolly six more times over the next year during which time Dr. Conolly consistently
identified Ms. Salazar’s mood as dysphoric and anxious, although noted some improvement and
fair and/or partial clinical benefit from the prescribed medications. (Tr. 455, 457, 459, 461, 464,
465.) Ms. Salazar was discharged on November 8, 2011, due to non-compliance with her
treatment plan. (Tr. 452.)
Thirteen months later, on December 17, 2012, Ms. Salazar returned to Tri-County
Community Services, Inc., and was reevaluated by Dr. Conolly. (Tr. 304-06.) Dr. Conolly
noted Ms. Salazar’s histories,12 conducted a mental status exam, and assessed a long history of
major depression and manic episodes, and PTSD. (Tr. 306.) Dr. Conolly indicated Axis I
diagnoses of bipolar disorder, PTSD, and assigned a GAF score of 40. (Tr. 306.)

Dr. Conolly

prescribed a trial of Depakote, and instructed Ms. Salazar to follow up with psychotherapy. (Id.)
On January 2, 2013, Ms. Salazar reported poor tolerance of Depakote with no clinical
benefit as yet. (Tr. 307.) On mental status exam, Dr. Conolly indicated Ms. Salazar’s mood was
dysphoric and anxious. (Id.) Dr. Conolly assessed that Ms. Salazar “remains depressed.” (Id.)
She discontinued the Depakote and prescribed a trial of Topiramate. (Id.) Dr. Conolly indicated
Axis I diagnoses of bipolar disorder and PTSD. (Id.)

11

The GAF is a subjective determination based on a scale of 100 to 1 of “clinician’s judgment of the individual’s
overall level of functioning.” Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (4th ed.
2000) at 32. GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at
times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work;
child frequently beats up younger children, is defiant at home, and is failing at school). Id. at 34.
12
History of Present Illness, Substance Abuse History, Past Psychiatric History, Social History, Family History and
Medical History. (Tr. 304-05.)

10

On March 11, 2013, Ms. Salazar reported she was pregnant and had stopped all of her
medications. (Tr. 308.) Ms. Salazar reported her depression as 9/10. (Id.) On mental status
exam, Dr. Conolly indicated Ms. Salazar’s mood was dysphoric, and that she had poor memory
and attention. (Id.) Dr. Conolly assessed severe depression. (Id.) She instructed Ms. Salazar to
continue off her medications during the pregnancy and lactation, unless severely compromised
by bipolar disorder. (Id.) She also instructed Ms. Salazar to follow up with psychotherapy. (Id.)
Dr. Conolly indicated Axis I diagnoses of bipolar disorder and PTSD, and assigned a GAF score
of 40. (Id.)
On October 14, 2013, Ms. Salazar complained of mood swings and anxiety. (Tr. 310.)
She reported her depression as 7-8/10. (Id.) On mental status exam, Dr. Conolly indicated
Ms. Salazar’s mood was dysphoric, and that she had poor memory and attention.

(Id.)

Dr. Conolly assessed bipolar depression and financial stressors. (Id.) Dr. Conolly instructed
Ms. Salazar to resume Depokote and prescribed a trial of Clonidine. (Id.) She instructed
Ms. Salazar to follow up with psychotherapy. (Id.) Dr. Conolly indicated Axis I diagnoses of
bipolar disorder and PTSD, and assigned a GAF score of 40. (Id.)
On December 16, 2013, Ms. Salazar reported mood swings and anxiety. (Tr. 314.) She
reported her depression as 9/10.

(Id.)

On mental status exam, Dr. Conolly indicated

Ms. Salazar’s mood as dysphoric and that she had poor memory and attention. (Id.) Dr. Conolly
noted partial clinical benefit from the prescribed medications. (Id.) Dr. Conolly increased the
Depokote dosage and prescribed a trial of Topamax. (Id.) Dr. Conolly instructed Ms. Salazar to
follow up with psychotherapy. (Id.) Dr. Conolly indicated Axis I diagnoses of bipolar disorder
and PTSD, and assigned a GAF score of 40. (Id.)

11

On December 16, 2013, Dr. Conolly prepared a Medical Source Statement of Ability To
Do Work-Related Activities (Mental) and assessed that Ms. Salazar had slight limitations in her
ability to (1) maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness; and (2) be aware of normal hazards and take appropriate precautions. (Tr. 316)
Dr. Conolly assessed that Ms. Salazar had moderate limitations in her ability to (1) understand
and remember very short and simple instructions; (2) carry out very short and simple
instructions; (3) ask simple questions or request assistance; (4) travel to unfamiliar places or use
public transportation; and (5) set realistic goals or make plans independently of others. (Id). Dr.
Conolly assessed that Ms. Salazar had marked limitations in her ability to (1) remember
locations and work-like procedures; (2) understand and remember detailed instructions; (3) carry
out detailed instructions; (4) maintain attention and concentration for extended periods;
(5) perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerance; (6) sustain an ordinary routine without special supervision; (7) work in
coordination with or in proximity to others without being distracted by them; (8) make simple
work-related decisions; (9) 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; (10) interact appropriately with the general
public; (11) accept instructions and respond appropriately to criticism from supervisors; (12) get
along with coworkers or peers without distracting them or exhibiting behavioral extremes; and
(13) respond appropriately to change in the work setting. (Id.)
The ALJ determined that Dr. Conolly’s opinion was not entitled to controlling weight
because “it was not well supported by medically acceptable clinical and laboratory diagnostic

12

techniques and [was] inconsistent with the other substantial evidence in the case record.” (Tr.
147.) The ALJ then accorded little weight to Dr. Conolly’s opinion and explained that
[a]lthough Dr. Conolly is a psychiatrist and first saw the claimant in October
2010, there are significant gaps in the treatment relationship. Most notably, the
claimant did not see Dr. Conolly (or any other mental health provider) from
August 2011 until December 2012 (Ex. 1F/2598). Dr. Conolly restarted her
medications for just a few months, but then she had to stop taking them against
after she became pregnant. However, she was able to restart her medications in
October 2013, after her son was born (Ex. 1F/252).
Dr. Conolly’s treatment notes document that the claimant responded well to
medications and that her symptoms of anxiety and depression were stable while
she was compliant with treatment. For example, in February 2011, Dr. Conolly’s
assessment was “residual mild depression, anxiety” (Ex. 1F/38). In March 2011,
Dr. Conolly characterized the claimant’s depression as “moderate” (Ex. 1F/39).
Dr. Conolly noted in May 2011 that the claimant had only “residual” anxiety and
was “much less depressed” (Ex. 1F/40). Mr. Callaway, the therapist who worked
with Dr. Conolly, indicated on a form dated January 6, 2011, that the claimant’s
condition was “stabilized but requires on-going psychiatric care” (Ex. 1F/103).
Dr. Conolly assessed “residual insomnia and daytime anxiety” on June 9, 2011
(Ex. 1F/103). On July 7, 2011, Dr. Conolly noted only “mild anxiety” (Ex.
1F/105).
(Tr. 147.)
The ALJ failed to properly weigh the treating physician opinions. As for Dr. Zmily’s
opinion, the ALJ explained that he accorded it little weight because Dr. Zmily only saw
Ms. Salazar for the first time on the date he completed the Fibromyalgia Questionnaire and
Exertional Limitation forms. However, even if Dr. Zmily had only seen Ms. Salazar one time,
which he did not,13 a one-time consultative examination is not a valid basis for rejecting an
opinion. Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (finding that a limited treatment
history by itself is an invalid basis for rejecting a medical source opinion). Moreover, one-time

13

See fn. 7, supra.

13

consultative exams are often fully relied on as the dispositive basis for RFC findings.14 Id. As
for the ALJ’s other reason; i.e., that there was no indication of what treatment, if any, Dr. Zmily
prescribed, Dr. Zmily’s subsequent treatment notes indicated a treatment plan that included
medications to address Ms. Salazar’s medical conditions.15 (Tr. 567-69, 570-72, 573-75.) As
such, the ALJ’s reasons are not supported by substantial evidence and are an invalid basis for
rejecting Dr. Zmily’s opinion.
As for Dr. Conolly’s opinion, the ALJ provided boilerplate language for not according
her opinion controlling weight, but failed to explain why Dr. Conolly’s opinion was not
supported by medically acceptable clinical techniques.

“Psychiatric signs are medically

demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities
of behavior, mood, thought, memory, orientation, development, or perception. Psychiatric signs
must be shown by observable facts that can be medically described and evaluated.” POMS DI
24501.020.A.16 Here, Dr. Conolly performed mental status exams at every appointment with
Ms. Salazar and consistently observed her mood as dysphoric and anxious. (Tr. 307, 308, 310,
314, 455, 457, 459, 461, 464, 465, 467.) Dr. Conolly further observed on some occasions that
Ms. Salazar had poor memory and attention. (Tr. 308, 310, 314.)

Moreover, Dr. Conolly’s

Axis I diagnoses consistently indicated major depressive disorder, PTSD, panic disorder, and
bipolar disorder, and a persistent GAF Score of 40. (Tr. 306, 307, 308, 310, 314, 455, 457, 459,
461, 464, 465, 468.) The ALJ failed to explain why he deemed the observable facts that Dr.

14

Ironically, the ALJ relied on examining State Agency medical consultant Dr. Martin Trujillo’s one-time
consultative exam to support his physical RFC assessment. (Tr. 147.)

15

Dr. Zmily’s treatment plan included Relafen, Flexeril, Topamax, Klonopin, and Depokote. (Tr. 567-69, 570-72,
573,75.)

16

The POMS is “a set of policies issued by the Administration to be used in processing claims.” McNamar v. Apfel,
172 F.3d 764, 766 (10th Cir. 1999).

14

Conolly medically described in her treatment notes were not well supported by medically
acceptable clinical techniques and then, in turn, why he determined they provided an insufficient
basis for her opinion. Additionally, the basis of Dr. Conolly’s assessment and diagnoses; i.e.,
Ms. Salazar’s long history of depression, anxiety and PTSD, was well documented and
consistent with other substantial evidence in the record, contrary to the ALJ’s determination it
was not. (Tr. 301-02, 412, 486-88,17 508-11, 513, 514, 515, 516-19, 567-69, 570-72, 573-75.)
Lastly, the ALJ’s explanation in according Dr. Conolly’s opinion little weight failed to address
any of Dr. Conolly’s 2012/2013 records that indicated a deterioration in Ms. Salazar’s mental
condition. An ALJ, in addition to discussing the evidence supporting his decision, must also
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects. Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996); see
also Grogan v. Barnhart, 399 F.3d 1257, 1266 (10th Cir. 2005). The ALJ failed to discuss this
probative evidence or provide legitimate reasons for rejecting it. This is error.
Finally, the ALJ failed to weigh the State Agency opinions in light of the more recent
treating physician opinions that suggested a deterioration of Ms. Salazar’s physical and mental
conditions. See, e.g., Harris v. Sec’y of Health & Human Servs., 821 F.2d 541, 544 (10th Cir.
1987) (an ALJ must not discount a treating physicians’ opinion as to the claimant’s deteriorating
condition in favor of the treating physician’s prior finding that the claimant would be able to
return to work). Dr. Zmily’s opinion regarding Ms. Salazar’s functional limitations to do workrelated physical activities and Dr. Conolly’s opinion regarding Ms. Salazar’s functional

17

On August 8, 2011, examining State Agency medical consultant Martin Trujillo, M.D., whose opinion the ALJ
relied on to support his physical RFC assessment, noted depression/anxiety, PTSD, and possible bipolar disorder as
part of his impression. (Tr. 487.) Dr. Trujillo discussed that Ms. Salazar’s primary problem was her psychiatric
status. (Tr. 488.) “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.” Haga v. Astrue, 482 F.3d 1203, 1208 (10th Cir.
2007).

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limitations to do work-related mental activities postdate Dr. Trujillo’s and Dr. Castro’s opinions
by two years and four months. Nowhere in his determination does the ALJ address how the
more recent medical evidence of Ms. Salazar’s deteriorating condition might have impacted
Dr. Castro’s18 or Dr. Trujillo’s opinions. See Jaramillo v. Colvin, 576 F. App’x 870, 874 (10th
Cir. 2014) (noting the significance of a recent physician’s examination which found more
limitations than an examination by another physician two years prior). Nor does the ALJ
demonstrate that he considered the relative age of the State Agency opinions when he accorded
them great weight.
For the foregoing reasons, the ALJ erred in his evaluation of the treating physician
opinions of Dr. Zmily and Dr. Conolly, and further erred in rejecting their opinions in favor of
the State Agency opinions of Dr. Trujillo and Dr. Castro absent a legally sufficient explanation
for doing so. Id. “The 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.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th
Cir. 2004) (citing 20 C.F.R. §§ 404.1527(d)(1), (2) and 416.927(1) and (2), and SSR 96-6p, 1996
WL 374180, at *2)). Additionally, the evidence the ALJ relied on to assess Ms. Salazar’s
physical and mental RFC does not adequately support his determination. This is reversible error.
“[T]he ALJ must make specific findings” regarding the claimant’s residual functional capacity
for work activity, Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996), that are “supported by
substantial evidence.” Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

18

Dr. Conolly’s 2012/2013 treatment notes were not available to either Dr. Castro or Dr. Chiang when they
reviewed the evidence at the initial and reconsideration stages of Ms. Salazar’s claim and assessed her ability to do
work related mental activities.

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B.

Remaining Issues

The Court will not address Ms. Salazar’s remaining claims of error because they may be
affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).
IV. Conclusion
For the reasons stated above, Ms. Salazar’s Motion to Remand or Reverse (Doc. 21) is
GRANTED.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent

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