Dalton v. Social Security Administration

Filing 30

MEMORANDUM OPINION AND ORDER by Magistrate Judge Laura Fashing granting 20 Motion to Remand. (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONALD J. DALTON,
Plaintiff,
vs.

1:16-cv-00273-LF

NANCY A. BERRYHILL,1 Acting Commissioner
of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Ronald J. Dalton’s Motion to
Remand or Reverse and Brief in Support of Motion to Remand, filed January 1, 2017, and fully
briefed on May 4, 2017. Docs. 20, 21, 25, 28. The parties have consented to my entering a final
judgment in this case. Docs. 6, 9, 10. Having meticulously reviewed the entire record and being
fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to apply
the correct legal standards in weighing the opinions of two examining medical sources. I
therefore GRANT Mr. Dalton’s motion and remand this case to the Commissioner for
proceedings consistent with this opinion.
I.

Standard of Review

The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were

1

Nancy A. Berryhill, the new Acting Commissioner of Social Security, is automatically
substituted for her predecessor, Acting Commissioner Carolyn W. Colvin, as the defendant in
this suit. FED. R. CIV. P. 25(d).
2

The Court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which
generally is the ALJ’s decision, 20 C.F.R. §§ 404.981, as it is in this case.

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). “The failure to apply the correct legal standard or to provide this court
with a sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal
quotation marks and brackets omitted). The Court must meticulously review the entire record,
but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as 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 or if there is a mere
scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). However, “‘[t]he
possibility of drawing two inconsistent conclusions from the evidence does not prevent [the]
findings from being supported by substantial evidence.’” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process

To qualify for disability benefits, a claimant must establish that he or she is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be

2

expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant
must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant has
a “severe medically determinable . . . impairment . . . or a combination of impairments” that has
lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal
one of the Listings3 of presumptively disabling impairments; or (4) the claimant is unable to
perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i–iv); Grogan, 399 F.3d at
1261. If the claimant cannot show that his or her impairment meets or equals a Listing but
proves that he or she is unable to perform his or her “past relevant work,” the burden then 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 residual functional capacity (“RFC”), age,
education, and work experience. Id.
III.

Background and Procedural History

Mr. Dalton was born on April 23, 1971. AR4 26, 107. His mother committed suicide
when he was nine. AR 1385. By the ninth grade, Mr. Dalton got in trouble because he was
doing a lot of drugs and was “locked up in a mental ward,” remaining in the state’s custody until
he turned eighteen. AR 1385–86. Mr. Dalton was never able to obtain his GED, and has worked
different jobs as a way of educating himself. AR 1380, 1386. His past relevant work includes

3

20 C.F.R. pt. 404, subpt. P, app. 1.

4

Documents 14–1 through 14–19 comprise the sealed administrative record (“AR”). When
citing to the record, the Court cites to the AR’s internal pagination rather than the CM/ECF
document number and page.
3

working as a cook’s helper, a dishwasher, in construction and labor, and as a cashier at a
convenience store. AR 1391–92. At the time of the hearing, Mr. Dalton was married and living
with his wife in an RV in Moriarty, New Mexico. AR 1379, 1383–84.
Mr. Dalton worked until March 1, 2013, when he was struck by an automobile while he
was walking or riding his bike through an intersection, which ultimately resulted in a total right
knee replacement. AR 303, 1375–76. He currently makes money by panhandling and
occasionally chopping weeds. AR 1383–84. Mr. Dalton testified that he is unable to work
because he is too honest during interviews, and explains to potential employers that he does not
“want to be pushed to work too hard” and reinjure his knee. AR 1379. When asked why he
could not do work if he were permitted to sit all day, Mr. Dalton responded that such jobs are not
available in Moriarty, where he is currently living, but that he “would have no problem trying to
learn that kind of stuff.” AR 1379. Mr. Dalton testified that he wanted to go to school to get his
diploma “in something,” although he didn’t know what. Id.
Mr. Dalton filed a Title II application for disability insurance benefits and a Title XVI
application for supplemental income benefits on April 5, 2013, alleging disability since March 1,
2013, due to “leg injury resulting from being struck by car on bicycle, hip problems, [and] back
problems.” AR 26, 107, 110, 119, 1360–65. Mr. Dalton’s application for benefits was denied
initially and upon reconsideration, and he requested a hearing before an ALJ. AR 26–51, 54–64,
73. On August 4, 2015, ALJ Deborah Rose conducted a hearing, at which Mr. Dalton and Mary
Diane Weber, a vocational expert, testified. AR 1366–97. The ALJ issued her unfavorable
decision on December 7, 2015. AR 13–23.
At step one, the ALJ found that Mr. Dalton had not engaged in substantial gainful activity
since his alleged onset date of March 1, 2013. AR 15. Because Mr. Dalton had not engaged in

4

substantial gainful activity for at least 12 months, the ALJ proceeded to step two. At step two,
the ALJ found that Mr. Dalton suffered from the severe impairments of “degenerative joint
disease, medial meniscus derangement, and torn ACL of right knee, now status post, total knee
replacement (TKR), depression disorder, learning disability, attention deficit/hyperactivity
disorder (ADHD), post-traumatic stress disorder (PTSD), history of poly-substance dependence,
reportedly in remission.” Id. The ALJ found that Mr. Dalton had two nonsevere impairments:
hypertension and a MRSA5 infection. AR 15–16. At step three, the ALJ found that none of Mr.
Dalton’s impairments—alone or in combination—met or medically equaled a Listing. AR 16–
17.
Because none of the impairments met a Listing, the ALJ moved on to step four. At step
four, the ALJ found that:
[C]laimant has the residual functional capacity to perform less than a full range of
medium work as defined in 20 CFR 404.1567(c) and 416.967(c)[.] He has the
ability to lift/carry, push/pull 25-pounds frequently, 50-pounds occasionally,
stand/walk six to 8 hours in an 8-hour day, and sit six to 8 hours per day. He can
occasionally climb, kneel, crouch, and crawl, and only occasionally operate foot
controls with the right lower extremity. He can understand and carry out simple
instructions, can have superficial and incidental work-related interaction with
coworkers and supervisors, but no public interaction required to complete job
duties.
AR 17. Applying this RFC, the ALJ determined that Mr. Dalton is capable of performing his
past relevant work as a cook’s helper. AR 21. The ALJ alternatively found at step five that
“[Mr. Dalton] is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy[,]” such as cleaner II or laundry laborer. AR 22–23.
Accordingly, the ALJ determined that Mr. Dalton was not disabled. AR 23. The Appeals

5

“MRSA” stands for Methicillin-resistant Staphylococcus aureus.
https://www.mayoclinic.org/diseases-conditions/mrsa/basics/definition/con-20024479 (last
visited November 14, 2017). A MRSA “infection is caused by a type of staph bacteria that’s
become resistant to many of the antibiotics used to treat ordinary staph infections.” Id.
5

Council denied Mr. Dalton’s request for review on February 25, 2016. AR 5–7. On April 8,
2016, Mr. Dalton timely appealed the Commissioner’s decision to this Court. Doc. 1.
IV.

Mr. Dalton’s Claims

Mr. Dalton raises eleven arguments on appeal. He contends the ALJ erred by: (1)
improperly assessing the burden of proof at step five; (2) making an improper mental medical
assessment and RFC; (3) failing to apply the standards of 20 C.F.R. § 1527; (4) rejecting the
opinions of Dr. Rajesh and his staff; (5) criticizing the use of GAF scores by various
practitioners; (6) rejecting Dr. Krueger’s assessment; (7) failing to conduct a drug abuse and
alcohol analysis as required by SSR 13-2; (8) improperly assessing Mr. Dalton’s credibility; (9)
improperly finding a “history of polysubstance abuse” to be a severe impairment at step two;
(10) improperly finding that Mr. Dalton is only mildly restricted in his social functioning
because he can panhandle; and (11) that the ALJ’s “Physical RFC on knee with no post[-]surgery
opinion is insubstantial evidence.” Doc. 20 at 1–2.
Because I remand based on the ALJ’s failure to appropriately weigh the conclusions of
Drs. Rajesh and Krueger, I do not address the other alleged errors, which “may be affected by the
ALJ’s treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.
2003).
V.

Discussion

The ALJ recognized that Mr. Dalton has several severe mental impairments. AR 15. She
concluded, however, that “medical records show the claimant’s depressed and anxious symptoms
are well controlled with medication and counseling.” AR 19. The Court finds this statement to
be unsupported by substantial evidence. More importantly, in reaching this conclusion the ALJ

6

erred in weighing the opinions of Drs. Rajesh and Krueger, both examining physicians, as
explained below.
Mr. Dalton presented to Presbyterian Medical Services on June 19, 2013, for an Initial
Behavioral Health Assessment. AR 285–89. He presented as agitated with some delusional and
paranoid ideation, inappropriate affect and self-touching, poor hygiene and lower intelligence.
AR 288. His speech was noted to be “somewhat rambling and tangential, at times incoherent,”
and his reporting was “inconsistent.” AR 288. His insight was “poor.” Id. He was diagnosed
with psychosis, major depression, and anxiety disorder, and was assigned a Global Assessment
of Functioning (“GAF”)6 score of 30. AR 289. Mr. Dalton returned six days later on June 25,

6

As the Tenth Circuit summarized in Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th
Cir. 2012):
The GAF is a 100–point scale divided into ten numerical ranges, which permits clinicians
to assign a single ranged score to a person’s psychological, social, and occupational
functioning. . . . GAF scores are situated along the following “hypothetical continuum of
mental health [and] illness”:
• 91–100: “Superior functioning in a wide range of activities, life’s problems
never seem to get out of hand, is sought out by others because of his or her many
positive qualities. No symptoms.”
• 81–90: “Absent or minimal symptoms (e.g., mild anxiety before an exam), good
functioning in all areas, interested and involved in a wide range of activities,
socially effective, generally satisfied with life, no more than everyday problems
or concerns (e.g., an occasional argument with family members).”
• 71–80: “If symptoms are present, they are transient and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after family argument); no
more than slight impairment in social, occupational, or school functioning (e.g.,
temporarily falling behind in schoolwork).”
• 61–70: “Some 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.”

7

2013, and was seen by Dilip Rajesh, M.D. AR 274–77. Dr. Rajesh noted that Mr. Dalton’s
appearance was disheveled and reflective of poor hygiene, his affect was constricted, his mood
was irritable, and that his intellect is below average. AR 276. However, Dr. Rajesh indicated
that Mr. Dalton was oriented to person, place, time and situation, his memory was intact, and his
reasoning, impulse control, judgment and insight were noted to be “fair.” Id. Mr. Dalton was
assessed with “ANXIETY STATE NOS [not otherwise specified].” Id. Dr. Rajesh assigned a
GAF score of 40. AR 277.

• 51–60: “Moderate 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 co-workers).”
• 41–50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).”
• 31–40: “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 beats up younger
children, is defiant at home, and is failing at school).”
• 21–30: “Behavior is considerably influenced by delusions or hallucinations OR
serious impairment in communication or judgment (e.g., sometimes incoherent,
acts grossly inappropriately, suicidal preoccupation) OR inability to function in
almost all areas (e.g., stays in bed all day; no job, home, or friends).”
• 11–20: “Some danger of hurting self or others (e.g., suicide attempts without
clear expectation of death; frequently violent; manic excitement) OR occasionally
fails to maintain minimal personal hygiene (e.g., smears feces) OR gross
impairment in communication (e.g., largely incoherent or mute).”
• 1–10: “Persistent danger of severely hurting self or others (e.g., recurrent
violence) OR persistent inability to maintain minimal personal hygiene OR
serious suicidal act with clear expectation of death.”
• 0: “Inadequate information.”
Id. (quoting American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
32, 34 (Text Revision 4th ed. 2000)).

8

Mr. Dalton returned for a follow-up with Dr. Rajesh on July 23, 2013. AR 268. At that
time he was experiencing “compulsive thoughts or behaviors, feelings of guilt or worthlessness,
poor concentration and indecisiveness.” Id. In assessing Mr. Dalton’s mental status, Dr. Rajesh
noted that Mr. Dalton was not exhibiting signs of psychosis or mania, but his reasoning was
poor. AR 269. Dr. Rajesh diagnosed an “unspecified episodic mood disorder” as well as
unspecified drug and alcohol dependence and assigned a GAF of 40. AR 269–70. Dr. Rajesh
prescribed Risperidone,7 and advised Mr. Dalton to return for a follow-up in two weeks’ time.
AR 270. There are not medical records indicating that Mr. Dalton ever followed up.
The ALJ gave Dr. Rajesh’s GAF score “little weight” (effectively rejecting it),8 because
it “appears to have factored in [Mr. Dalton’s] allegations of pain and physical function loss into
his opinion as to [his] ability to function in the workplace.” AR 20. “However,” the ALJ
explained, “this is beyond the scope of Dr. Rajesh’s expertise.” AR 20. Additionally, the ALJ
gave little weight to GAF scores in general, “as they are subjective measurements that vary
depending on the source and their level of knowledge and skill.” AR 19. The ALJ explained
that “[t]he newest version of the Diagnostic and Statistical Manual (DSM-V) no longer uses
these scores for this very reason.” AR 19.
Concerned about Mr. Dalton’s mental functioning, see, e.g., AR 1368–69, Mr. Dalton’s
attorney referred him to Robert Krueger, Ph.D., for a consultative examination which occurred
on July 8, 2015. AR 1316–23. Dr. Krueger reviewed Mr. Dalton’s medical records, performed a
clinical interview with biopsychosocial history and mental status examination, and administered

7

Risperidone is an antipsychotic medication used to treat schizophrenia and bipolar disorder in
adults. See https://www.drugs.com/risperidone.html (last visited November 14, 2017).

8

See 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) (citing Chapo for this proposition); Ringgold v. Colvin, 644 F. App’x 841, 844 (10th
Cir. 2016) (same).
9

the reading portion for the Wide Range Achievement Test – Revised (WRAT-R), Wechsler
Adult Intelligence Scale – IV (WAIS-IV) and a Beck Depression Inventory (BDI). AR 1316.
Dr. Krueger noted at the outset that “this was a somewhat challenging evaluation” because Mr.
Dalton was a poor historian when providing his psychosocial history, and was vague and
rambling when talking about his personal history. AR 1316. Mr. Dalton did not meet the full
criteria for having a major depressive disorder, and there was no clear evidence of hypomania or
mania or bipolar disorder, and no evidence of a psychosis. AR 1318. Still, test results indicated
that Mr. Dalton had significant impairment of most cognitive skills, and there was ongoing
evidence of a learning disorder. AR 1318–19. Mr. Dalton scored a total of 23 on the BDI test,
which, according to Dr. Krueger is a “moderately elevated score, which suggests that he is likely
to have significant problems with depression now.” AR 1319.
Utilizing the DSM-IV, Dr. Krueger diagnosed Mr. Dalton with Post-Traumatic Stress
Disorder, Depressive Disorder NOS, Learning Disorder NOS, and ADHD. AR 1319. Dr.
Krueger further opined that “[p]sychosocial stressors appear to be at least moderate, and include
having chronic pain and other medical issues, loss of former activities and lack of income.” AR
1319. Dr. Krueger assigned a GAF score of 40 to 45. AR 1319. In summarizing his
conclusions Dr. Krueger found that:
The results of the current evaluation indicate that Mr. Dalton has multiple
impairments and does have significant functional impairment. Because of chronic
pain and reported physical limitations, serious cognitive impairment, and ongoing
emotional difficulties Mr. Dalton can be expected to have moderate impairment
with understanding, remembering, and following simple work instructions and
marked impairment with complex or detailed instructions. Because of these same
factors he is likely to have marked impairment with maintaining pace and
persistence in many work environments. In his current condition he can be
expected to have marked impairment with adjusting to changes in work
environment. Because of chronic and serious emotional difficulties Mr. Dalton
can be expected to have marked impairment in many relationships with
coworkers, supervisors, and the general public. He can be expected to have

10

moderate impairment with traveling to distant places alone. At the present time
Mr. Dalton can be expected to have moderate and in some work environments
marked impairment with being aware of and reacting appropriately to dangers.
His impairments and [sic] of long-term duration and can be expected to persist for
more than one year. Mr. Dalton appears to be marginally capable of managing his
own financial benefits at this time.
AR 1320.
The ALJ gave “some but not controlling weight to Dr. Krueger’s opinion because it
appears that he factored in the claimant’s allegations of pain and physical functional loss into his
opinion as to the claimant’s ability to function in the workplace, and this is beyond Dr. Krueger’s
area of expertise.” AR 21. As Mr. Dalton points out, the ALJ “does not state what part of [Dr.
Krueger’s] opinion she adopted [or] what evidence she compared to his opinion.” Doc. 21 at 12.
Rather, the ALJ appears to have rejected Dr. Krueger’s findings that Mr. Dalton is limited in a
variety of areas or impermissibly adopted only those findings that supported a finding of
nondisability. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“An ALJ is not
entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that
are favorable to a finding of nondisability.”).9

9
 “The RFC assessment must first identify the individual’s functional limitations or restrictions

and assess his or her work-related abilities on a function-by-function basis, including the
functions in paragraphs (b), (c), and (d) of 20 C.F.R. [§§] 404.1545 and 416.945.” SSR 96-8p,
1996 WL 374184, at *1. This means the ALJ must consider how the claimant’s impairments
affect his or her physical abilities, mental abilities, and other abilities. An ALJ must consider all
of the following when assessing a claimant’s mental abilities:
When we assess your mental abilities, we first assess the nature and extent of your mental
limitations and restrictions and then determine your residual functional capacity for work
activity on a regular and continuing basis. A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision, co-workers, and work
pressures in a work setting, may reduce your ability to do past work and other work.
20 C.F.R. §§ 404.1545(c), 416.945(c); see also SSR 96-8p, 1996 WL 374184, at *6 (“Workrelated mental activities generally required by competitive, remunerative work include the
abilities to: understand, carry out, and remember instructions; use judgment in making work11

For example, whereas the ALJ found that Mr. Dalton “can understand and carry out
simple instructions,” AR 17, Dr. Krueger found moderate limitations in his ability to understand,
remember and follow simple instructions. AR 1320. “[A] moderate impairment is not the same
as no impairment at all.” Haga, 482 F.3d at 1208. Rather, “[m]oderately limited means the
evidence supports the conclusion that the individual’s capacity to perform the activity is
impaired.” Jaramillo v. Colvin, 576 F. App’x 870, 875 (10th Cir. 2014) (citing POMS DI
24510.063 B.210). Thus, the ALJ rejected Dr. Krueger’s finding of a moderate level of
impairment in this area. The same is true of Mr. Dalton’s moderately impaired abilities to react
to dangers in the workplace and to travel to distant places, both of which are absent from the
ALJ’s RFC.
The ALJ also ignored Dr. Krueger’s notations of marked levels of impairment in
maintaining concentration and pace in many work environments and in adjusting to changes in
the work environment. A claimant’s ability is “markedly limited” “when the evidence supports
the conclusion that the individual cannot usefully perform or sustain the activity.” POMS DI
24510.063 B.3. The ALJ, however, did not account for these findings in Mr. Dalton’s RFC.
Similarly, whereas the ALJ found that Mr. Dalton “can have superficial and incidental work                                                                                                                                                                                               

related decisions; respond appropriately to supervision, co-workers and work situations; and deal
with changes in a routine work setting.”). In formulating the RFC, an ALJ must perform a
function-by-function assessment of these work-related functions, considering all of the relevant
evidence in the case record. SSR 96-8p, 1996 WL 374184, at*2. The Tenth Circuit has held that
where a claimant is found to have more than mild mental limitations in work-related functions,
the ALJ must “express those impairments ‘in terms of work-related functions’ or ‘[w]ork-related
mental activities.’” Jaramillo v. Colvin, 576 F. App’x 870, 876 (10th Cir. 2004) (unpublished)
(quoting SSR 96-8p, 1996 WL 374184, at *6).
10

The Program Operations Manual System (“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). The Court “defer[s] to the POMS provisions unless [it] determine[s] they are
‘arbitrary, capricious, or contrary to law.’” Ramey v. Reinertson, 268 F.3d 955, 964 n.2 (10th
Cir. 2001) (quoting McNamar, 172 F.3d at 766).
12

related interaction with coworkers and supervisors, but no public interaction required to
complete job duties,” AR 17, Dr. Krueger found that “Mr. Dalton can be expected to have
marked impairment in many relationships with coworkers, supervisors and the general public.”
AR 1320. Given that Dr. Krueger found a marked limitation in Mr. Dalton’s ability to interact
with coworkers, supervisors and the general public, it is unclear why the ALJ differentiated
between these groups and found that Mr. Dalton could have “superficial and incidental” contact
with coworkers and supervisors, but no contact with the public. In short, it appears that the ALJ
actually rejected Dr. Krueger’s opinion, despite stating that she was giving it “some” weight.
The question is whether the ALJ’s rejection of Drs. Rajesh and Krueger’s opinions
conformed with the legal standards applicable to “examining medical source opinions.” See
Ringgold v. Colvin, 644 F. App’x 841, 843 (10th Cir. 2016) (unpublished) (citing Chapo v.
Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) and 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1)).
Such opinions “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 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). But the ALJ still is required to consider all of the medical
opinions, explain the weight given to the opinions, and provide specific, legitimate reasons if he
or she rejects an opinion. Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003); SSR 96-6p,
1996 WL 374180, at *1. 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

13

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.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quoting Drapeau v. Massanari, 255
F.3d 1211, 1213 (10th Cir.2001)). “[N]ot every factor for weighing opinion evidence will apply
in every case.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quoting SSR 06-03p,
2006 WL 2329939, at *5). Thus, an “ALJ need not explicitly discuss all the factors if his
decision is ‘sufficiently specific to make clear to any subsequent reviewers the weight he gave to
the medical opinion and the reasons for that weight.’” Rivera v. Colvin, 629 F. App’x 842, 844
(10th Cir. 2015) (unpublished) (quoting Oldham, 509 F.3d at 1258).
Here, the ALJ only provided two reasons for according little weight, and thereby
effectively rejecting, Dr. Rajesh’s opinion as to Mr. Dalton’s GAF. The first—that the GAF
score “appears to have factored in the claimant’s allegations of pain and physical function loss
into his opinion as to the claimant’s ability to function in the workplace. . . . [which] is beyond
the scope of Dr. Rajesh’s expertise” (AR 20)—appears to be wholly speculative. See AR 268–
89 (Dr. Rajesh’s treatment notes from 6/19/2013 through 7/23/2013, which do not indicate what
specific factors Dr. Rajesh considered in determining Mr. Dalton’s GAF). However, “an ALJ
may not make speculative inferences from medical reports and may reject a treating physician’s
opinion outright only on the basis of contradictory medical evidence and not due to his or her
own credibility judgments, speculation or lay opinion.” Robinson, 366 F.3d at 1082 (quoting
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)). Neither the ALJ nor the
Commissioner point to any medical evidence that is contrary to Dr. Rajesh’s opinion. As such,
this reason is unsupported by substantial evidence.
The second reason that the ALJ rejected Dr. Rajesh’s opinion is a critique of GAF scores

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in general, which arguably touches upon the supportability of the opinion. See 20 C.F.R.
§§ 404.1527(c)(3), 416.927(c)(3) (“The better an explanation a source provides for a medical
opinion, the more weight we will give that medical opinion.”). As the ALJ rightly notes, the
current Diagnostic and Statistical Manual has abandoned the use of GAF scores. See AR 19;
Am. Psychiatric Ass’n Diagnostic and Statistical Manual of Mental Disorders (DSM-V) at 16
(5th ed. 2013). Nonetheless, medical providers continue to use GAF scores, as evidenced by this
case. Moreover, while GAF scores may be subjective, the ALJ’s rationale for discounting the
score assigned by Dr. Rajesh—that the longitudinal medical record shows Mr. Dalton’s mental
impairments are well controlled with treatment and medication compliance—is unsupported by
substantial evidence. See AR at 19. The ALJ did not point to a single medical record that shows
that Mr. Dalton’s mental impairments are well controlled, see AR 20, and I reject the
Commissioner’s post-hoc support for the ALJ’s conclusion on appeal. See Doc. 25 at 5; see also
Haga, 482 F.3d at 1207–08 (“[T]his court may not create or adopt post-hoc rationalizations to
support the ALJ’s decision that are not apparent from the ALJ’s decision itself.”).
Likewise, the ALJ only provided one reason for discounting (or rejecting) Dr. Krueger’s
opinion: “it appears that he factored in the claimant’s allegations of pain and physical functional
loss into his opinion as to the claimant’s ability to function in the workplace, and this is beyond
Dr. Krueger’s area of expertise.” AR 21. Although Dr. Krueger’s conclusion indicates that Mr.
Dalton’s impairments are due in part to “chronic pain and reported physical limitations,” they
also are premised on his “serious cognitive impairment, and ongoing emotional difficulties.” AR
1320. While the ALJ certainly could discard any findings concerning Mr. Dalton’s physical
abilities, the ALJ provides no support for her claim that consideration of chronic physical pain is
beyond the scope of mental health examination. AR 21.

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Still, assuming for the sake of argument that the ALJ’s reason was valid and can be
construed as a comment concerning Dr. Krueger’s specialty, she failed to address the other five
regulatory factors when rejecting Dr. Krueger’s opinion. While not every factor will apply in
every case, the record must make clear that the ALJ at least considered all six factors. See
Oceguera v. Colvin, 658 F. App’x 370, 374 (10th Cir. 2016); Andersen v. Astrue, 319 F. App’x
712, 718 (10th Cir. 2009) (“Although the ALJ’s decision need not include an explicit discussion
of each factor . . . the record must reflect that the ALJ considered every factor in the weight
calculation.”) (emphasis in original). Here, while the ALJ stated that she “considered opinion
evidence in accordance with the [regulatory] requirements,” she makes no further mention of the
factors. AR 17. This Court cannot “simply presume” that the ALJ applied the correct legal
standards, Watkins, 350 F.3d at 1301, especially given the deference the Tenth Circuit has
recently paid examining sources. See Kellams v. Berryhill, — F. App’x —, 2017 WL 3432373,
at *7 (10th Cir. Aug. 10, 2017) (“The ALJ erred in discounting Dr. Borja’s opinion based on her
single exam, yet according great weight to Dr. Fieger’s opinion, which was based on a review of
the then-incomplete medical record.”).
The only question that remains is whether the ALJ’s errors were harmless. See, e.g.,
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 (10th Cir. 2012). An ALJ’s error in weighing a
medical opinion is harmless where giving greater weight to the opinion would not help the
claimant’s case, where the doctor’s findings are consistent with the RFC formulated by the ALJ,
or where it conflicts with a contrary opinion by a more qualified healthcare professional. See id.
at 1161–65. As explained above, giving greater weight to the doctors’ opinions would have
resulted in a more restrictive RFC in this case. Additionally, there are no contrary opinions from
any treating or examining source. As such, the ALJ’s errors are not harmless.

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VI.

Conclusion

The ALJ failed to adequately apply the legal standards set forth in 20 C.F.R.
§§ 404.1527(c) and 416.927(c) in rejecting the opinions of Drs. Rajesh and Krueger.
IT IS THEREFORE ORDERED that plaintiff Ronald J. Dalton’s Motion to Remand or
Reverse (Doc. 20) is GRANTED. The decision of the Commissioner is REVERSED and
REMANDED for further proceedings consistent with this opinion.

________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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