Mills v. Social Security Administration

Filing 24

MEMORANDUM OPINION AND ORDER granting 17 Motion to Remand to Agency by Magistrate Judge Carmen E. Garza. (atc)

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

ROY MILLS,
Plaintiff,
v.

No. CV 16-573 CG

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Roy Mills’ Motion to Reverse and
Remand for a Rehearing With Supporting Memorandum (the “Motion”), (Doc. 17), filed
January 11, 2017; Defendant Commissioner Nancy A. Berryhill’s Response to Plaintiff’s
Motion to Reverse and Remand the Administrative Decision (the “Response”), (Doc.
21), filed April 5, 2017; and Mr. Mills’ Reply in Support of Plaintiff’s Motion to Reverse
and Remand for a Rehearing With Supportive Memorandum (the “Reply”), (Doc. 22),
filed May 1, 2017.
Mr. Mills filed applications for supplemental security income and disability
insurance benefits on April 23, 2012, alleging disability beginning August 2, 2011.
(Administrative Record “AR” 16). Mr. Mills claimed he was limited in his ability to work
due to major depressive disorder, generalized anxiety disorders, disassociated
amnesia, intermittent explosive disorder, drug abuse, and a compressed disc in his
back. (AR 185). Mr. Mills’ applications were denied initially on December 11, 2012, and
upon reconsideration on June 17, 2013. (AR 16). Mr. Mills requested a hearing before

an Administrative Law Judge (“ALJ”), which was held on November 5, 2014, before ALJ
Ann Farris. (AR 864). Mr. Mills and Pamela Bowman, an impartial vocational expert
(“VE”), testified at the hearing, and Michael Armstrong, an attorney, represented Mr.
Mills at the hearing. (AR 864-93).
On July 17, 2015, ALJ Farris issued her decision, finding Mr. Mills not disabled at
any time between his alleged disability onset date through the date of the decision. (AR
29). Mr. Mills requested review by the Appeals Council, (AR 12), which was denied, (AR
7-9), making the ALJ’s decision the Commissioner’s final decision for purposes of this
appeal.
Mr. Mills now argues that the ALJ erred in considering and weighing the opinions
of Psychiatric Mental Health Nurse Practitioner (“PMHNP”) Jayanna Warwick and nonexamining State Agency psychologist Carol Mohney, Ph.D. (Doc. 17 at 14-19). The
Court has reviewed the Motion, the Response, the Reply, and the relevant law.
Additionally, the Court has meticulously reviewed the administrative record. Because
the ALJ erred in her consideration and weighing of Ms. Warwick’s and Dr. Mohney’s
opinions, the Court finds that Plaintiff’s motion should be GRANTED.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008); Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.
1992). If substantial evidence supports the Commissioner’s findings and the correct
legal standards were applied, the Commissioner’s decision stands and the plaintiff is not

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entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). The Commissioner’s “failure to apply the correct legal standards, or
show . . . that she has done so, are grounds for reversal.” Winfrey v. Chater, 92 F.3d
1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th
Cir. 1994)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for the Commissioner’s. Langley,
373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court’s review is limited to the
Commissioner’s final decision, 42 U.S.C. § 405(g), which is generally the ALJ’s
decision, rather than the Appeals Council’s denial of review. O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ’s decision “is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting” it. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
While the Court may not re-weigh the evidence or try the issues de novo, its
examination of the record must include “anything that may undercut or detract from the
ALJ’s findings in order to determine if the substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ]’s findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

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II.

Applicable Law and Sequential Evaluation Process

For purposes of supplemental security income and disability insurance benefits,
a claimant establishes a disability when 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. § 423(d)(1)(A) (2015), 42
U.S.C. § 1382c(a)(3)(A) (2004); 20 C.F.R. §§ 404.1505(a), 416.905(a) (2012). In order
to determine whether a claimant is disabled, the Commissioner follows a five-step
sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987);
20 C.F.R. §§ 404.1520, 416.920 (2012).
At the first four steps of the SEP, the claimant bears the burden of showing: (1)
she is not engaged in “substantial gainful activity”; (2) she has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and either (3) her impairment(s) either meet or
equal one of the “Listings”1 of presumptively disabling impairments; or (4) she is unable
to perform her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(iiv); see Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ
determines the claimant cannot engage in past relevant work, the ALJ will proceed to
step five of the evaluation process. At step five the Commissioner must show the
claimant is able to perform other work in the national economy, considering the
claimant’s residual functional capacity (“RFC”), age, education, and work experience.
Grogan, 399 F.3d at 1261.

1

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

4

III.

Background

Mr. Mills applied for supplemental security income and disability insurance
benefits due to major depressive disorder, generalized anxiety disorders, disassociated
amnesia, intermittent explosive disorder, drug abuse, and a compressed disc in his
back. (AR 185). At step one, the ALJ determined that Mr. Mills had not engaged in
substantial gainful activity since August 2, 2011, the alleged onset date. (AR 19). At
step two, the ALJ concluded that Mr. Mills was severely impaired by: depression;
anxiety; somatoform disorder, not otherwise specified; dependent avoidant personality
disorder; borderline intellectual functioning; and impulse control disorder. (AR 19-21). At
step three, the ALJ determined that none of Mr. Mills’ impairments, solely or in
combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 21-23).
At step four, the ALJ found that Mr. Mills has the RFC to perform a full range of
work at all exertional levels, with the following nonexertional limitations: “he is limited to
work with short and simple instructions and only occasional and superficial interaction
with the general public and co-workers.” (AR 23). In formulating Mr. Mills’ RFC, the ALJ
stated that she considered Mr. Mills’ mental and physical health history, Mr. Mills’
subjective complaints of his symptoms, and the medical evidence in the record. (AR 2327).
In considering the medical opinion evidence, the ALJ first noted that Mr. Mills
underwent a psychosocial assessment in July 2012 by Licensed Professional Clinical
Counselor Annette Kerr, who diagnosed him with major depressive disorder,
generalized anxiety disorder, dissociated amnesia, intermittent explosive disorder, and

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cannabis abuse, and assigned him a Global Assessment of Functioning (“GAF”) score
of 40. (AR 24). The ALJ next considered the consultative psychiatric examination
performed by Dr. Paula Hughson in December 2012. Id. Dr. Hughson diagnosed Mr.
Mills with dysthymic disorder, somatoform disorder, and dependent avoidant personality
disorder with a rule out for narcolepsy, and she assigned Mr. Mills a GAF score of 52.
Id. The ALJ stated that she gave Dr. Hughson’s opinion great weight because it is
consistent with Dr. Hughson’s interview and testing of Mr. Mills. Id. The ALJ noted that
Amy Bissada, DO, performed an initial adult psychiatric diagnostic interview with Mr.
Mills in November 2013, and that she diagnosed him with major depressive disorder
and intermittent explosive disorder, and assigned him a GAF score of 49. Id. The ALJ
stated that “GAF scores are subjective clinical impressions of the claimant’s overall
functioning with dubious applicability to the claimant’s social and occupational
functioning,” and that a GAF score “applies only to the time when it was rendered.” (AR
25) (emphasis in original). The ALJ stated that, therefore, she gives “little weight to
these GAF scores and find[s] that they do not representative [sic] of the claimant’s long
term functioning.” Id.
Next, the ALJ considered the October 2014 opinions of Ms. Warwick, who found
that Mr. Mills has marked limitations with respect to understanding, memory, and his
ability to accept instructions and respond appropriately to criticism from supervisors,
and that he has slight to moderate limitations with respect to sustained concentration
and persistence, adaptation, and social interactions. (AR 25). Ms. Warwick also found
that Mr. Mills has symptoms that would meet Listing 12.06. Id. The ALJ stated that she
gave Ms. Warwick’s opinions little weight because they are not consistent with Ms.

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Warwick’s treatment notes, she is not an acceptable medical source, and she has not
observed Mr. Mills in a work setting. (AR 25-26).
The ALJ then considered the February 2015 opinions of Thomas Dhanens,
Ph.D., who performed a psychological evaluation and diagnosed Mr. Mills with
borderline intelligence, impulse control disorder, and ruled out neurasthenia and posttraumatic stress disorder. (AR 26). The ALJ stated that he gave these opinions great
weight because they are consistent with Dr. Dhanens’ interview and testing of Mr. Mills,
and with Mr. Mills’ “transcripts and interactions with other clinicians.” Id.
In addition, the ALJ evaluated the December 2012 opinions of State Agency
psychological consultant Carol Mohney, Ph.D., who found that Mr. Mills could
understand, remember, and carry out simple instructions, make simple decisions, attend
and concentrate for two hours at a time, interact adequately with co-workers and
supervisors, and respond appropriately to changes in a routine work setting. Id. The ALJ
noted that in June 2013 State Agency psychological consultant Howard Atkins, Ph.D.,
reviewed and affirmed Dr. Mohney’s opinions. Id. The ALJ stated that she gave their
opinions “moderate weight as they are experienced at reviewing records and assigning
mental health restrictions,” but that “more recent evidence dose [sic] support a finding
that the claimant would to [sic] better with less interaction with the public and coworkers.” Id.
Next, the ALJ stated that she found that Mr. Mills’ statements as to the intensity,
persistence, and limiting effects of his symptoms were “not entirely credible.” (AR 26). In
support of this finding, the ALJ explained that Mr. Mills’ “allegation that he is unable to
work due to problems working with others is inconsistent with his ability to work at Dairy

7

Queen as a cashier in the past.” Id. The ALJ further relied on the following evidence:
that Mr. Mills was able to use public transportation by himself; was able to “shoot darts;”
that Mr. Mills’ condition is improved when he takes his medications; that he did not
always follow mental health treatment recommendations; that he may have more
responsibilities with respect to his wife and mother-in-law than alleged; and that he “was
able to navigate the complicated treatment plan of requiring outpatient daily IV
antibiotics and securing public transportation to these appointments.” (AR 26-27).
The ALJ also considered a statement submitted by Mr. Mills’ mother-in-law, in
which she stated he had been in special education, that she helped him with job
applications, and that he could not be employed at any job due to his emotional issues,
suppressed immune system, back problems, and sleep apnea. (AR 27). The ALJ found
that, because Mr. Mills’ mother-in-law is not medically trained, “the accuracy of the
statement is questionable.” Id. The ALJ further noted that she is not a disinterested third
party, and that her statement “is not consistent with the preponderance of the opinions
and observations by medical doctors in this case.” Id.
Finally, the ALJ stated that she “limited [Mr. Mills] to work with little interaction
with co-workers and the public due to his moderate limitations with respect to social
functioning,” and that she “also limited him to simple work due to his moderate
limitations with respect to concentration, persistence, and pace.” Id. The ALJ further
stated that “Dr. Dhanens confirmed that [Mr. Mills] was not intellectually disabled, and
multiple treatment notes document normal memory and attention and concentration,”
and that “[t]he record does not document any long term physical limitations.” Id. The

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ALJ then explained that Mr. Mills is unable to perform any of his past relevant work, so
the ALJ proceeded to step five. Id.
At step five, the ALJ noted that Mr. Mills was 23 years old on the alleged
disability onset date, and therefore classified as a “younger individual” in accordance
with the Regulations. Id. The ALJ also determined that Mr. Mills has at least a high
school education and is able to communicate in English. (AR 28). The ALJ noted that
the VE testified at the hearing that an individual with Mr. Mills’ same age, education,
work experience, and RFC could perform the jobs of laborer/polisher, industrial cleaner,
and hand cleaner/polisher. Id. The VE stated that those jobs existed in significant
numbers in the national economy. Id. After finding the VE’s testimony to be consistent
with the Dictionary of Occupational Titles, the ALJ adopted her testimony and concluded
that, because Mr. Mills is capable of performing work existing in significant numbers in
the national economy, he is not disabled pursuant to 20 C.F.R. §§ 404.1520(g) and
416.920(g). (AR 28-29).
IV.

Analysis

Mr. Mills argues that the ALJ erred in considering and weighing the opinions of
Ms. Warwick and Dr. Mohney. (Doc. 17 at 14-19). The Commissioner responds that the
ALJ properly considered these medical opinions. (Doc. 21 at 9-15). The Commissioner
argues that the ALJ provided good reasons for discounting Ms. Warwick’s opinions and
that Mr. Mills’ challenge to the ALJ’s consideration of her opinions invites the Court to
reweigh the evidence, which it cannot do. Id. at 9-11. The Commissioner further
contends that the ALJ properly considered Dr. Mohney’s opinions because Dr.
Mohney’s findings of moderate and marked limitations in Section I of the Mental RFC

9

(“MRFC”) form were accounted for in his Section III narrative conclusions, and because
the ALJ’s RFC determination is consistent with Dr. Mohney’s narrative conclusions. Id.
Social Security Regulations require ALJs to evaluate every medical opinion in
the record, including the opinions of non-examining State Agency physicians. See 20
C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c); Social Security Ruling (“SSR”) 96-6p, 1996
WL 374180 (July 2, 1996). Every medical source opinion should be weighed by the ALJ
in consideration of the following applicable “deference factors”:
(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.
Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citation omitted); see
also 20 C.F.R. §§ 404.1527(c)-(d), 416.927(c)-(d). Ultimately, the ALJ must give good
reasons that are “sufficiently specific to [be] clear to any subsequent reviewers” for the
weight that she ultimately assigns the opinions. Langley, 373 F.3d at 1119 (citation
omitted). Failure to do so constitutes legal error. See Kerwin v. Astrue, 244 Fed. Appx.
880, 884 (10th Cir. 2007) (unpublished).
In addition, “[a]n ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability.”
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (citations omitted). Instead, an
ALJ “must . . . explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7
(July 2, 1996). Further, the Commissioner may not rationalize the ALJ’s decision post
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hoc, and “[j]udicial review is limited to the reasons stated in the ALJ’s decision.”
Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (citation omitted).
A. The ALJ’s Consideration of Ms. Warwick’s Opinions
Mr. Mills attended psychotherapy sessions with Ms. Warwick from August 27,
2014 to October 20, 2014. (Doc. 17 at 8); (AR 766-72). Mr. Mills contends that the ALJ
erred by failing to provide adequate reasons for rejecting Ms. Warwick’s opinions. (Doc.
17 at 15-16). Specifically, Mr. Mills contends that the ALJ failed to cite the evidence
upon which she relied for her statement that Ms. Warwick’s assessment is not
consistent with her treatment notes. Id. at 16. Mr. Mills also challenges the ALJ’s
statement that Ms. Warwick’s opinions should be rejected because Ms. Warwick has
not observed Mr. Mills in a work setting. Id. at 17. Mr. Mills contends that this reason is
inadequate because it “would preclude every opinion from every source that the ALJ
relies on in making her decision,” and “would also call into question the ALJ’s RFC, as
she has also not ‘observed the claimant in a work setting.’” Id. (emphasis in original)
(quoting AR 26). Finally, Mr. Mills contends that the ALJ would have made a more
restrictive RFC determination had she properly incorporated the limitations identified by
Ms. Warwick. Id.
Ms. Warwick performed a Medical Assessment of Ability to Do Work-Related
Activities (Mental) for Mr. Mills on October 15, 2014. (AR 774-75). In this assessment,
Ms. Warwick found that Mr. Mills has marked difficulty in: remembering locations and
work-like procedures; understanding and remembering detailed instructions; and
accepting instructions and responding appropriately to criticism from supervisors. Id.
Ms. Warwick also found that Mr. Mills has moderate difficulty in: understanding and

11

remembering very short and simple instructions; carrying out detailed instructions;
maintaining attention and concentration for extended periods of time (i.e. 2-hour
segments); making simple work-related decisions; completing a normal workday and
workweek without interruptions from psychological-based symptoms, and performing at
a consistent pace without an unreasonable number and length of rest periods; getting
along with coworkers or peers without distracting them or exhibiting behavioral
extremes; maintaining socially appropriate behavior and adhering to basic standards of
neatness and cleanliness; responding appropriately to changes in the work place;
traveling in unfamiliar places or using public transportation; and setting realistic goals or
making plans independently of others. Id.
The ALJ stated that she gave Ms. Warwick’s opinions little weight because they
are not consistent with her treatment notes, she is not an acceptable medical source,
and she has not observed Mr. Mills in a work setting. (AR 25-26). In support of these
reasons, the ALJ noted that Ms. Warwick’s notes reflected that Mr. Mills’ memory was
intact and that he was alert and oriented at each of his three visits with Ms. Warwick,
and that Ms. Warwick’s “treatment notes do not provide any justification as to why [Mr.
Mills] would have difficulty handling criticism from supervisors.” Id.
Ms. Warwick is not an “acceptable medical source” pursuant to 20 C.F.R. §§
404.1513(a)(1)-(5), 416.913(a)(1)-(5), which provide that “[a]cceptable medical sources”
include physicians, psychologists, certain optometrists and podiatrists, and certain
speech-language pathologists. Instead, Ms. Warwick is an “other” medical source,
pursuant to 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). The distinction between
acceptable medical sources and other medical sources “is necessary because

12

‘[i]nformation from . . . ‘other [medical] sources' cannot establish the existence of a
medically determinable impairment.’ . . . Further, ‘only acceptable medical sources can
give . . . medical opinions’ and ‘be considered treating sources . . . whose medical
opinions may be entitled to controlling weight.’” Bowman v. Astrue, 511 F.3d 1270, 1275
n.2 (10th Cir. 2008) (quoting SSR 06-03p, 2006 WL 2329939 at *2 (Aug. 9, 2006)).
Nevertheless, the opinions of “other” medical sources should still be weighed.
Indeed, the Regulations state that “[r]egardless of its source, we will evaluate every
medical opinion we receive.” 20 C.F.R. §§ 404.1527(c), 416.927(c). Social Security
Ruling 06-03p clarifies that the factors used in weighing medical opinions of acceptable
medical sources “set out in 20 C.F.R. §§ 404.1527(d) and 416.927(d) apply equally to
‘all opinions from medical sources who are not acceptable medical sources as well as
from other [non-medical] sources.’” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir.
2007) (quoting SSR 06-03p, 2006 WL 2329939at *4). It follows that:
depending on the particular facts in a case, and after applying the factors
for weighing opinion evidence, an opinion from a medical source who is
not an ‘acceptable medical source’ may outweigh the opinion of an
‘acceptable medical source,’ including the medical opinion of a treating
source. For example, it may be appropriate to give more weight to the
opinion of a medical source who is not an ‘acceptable medical source’ if
he or she has seen the individual more often than the treating source and
has provided better supporting evidence and a better explanation for his or
her opinion.
Frantz, 509 F.3d at 1302 (quoting SSR 06-03p, 2006 WL 2329939 at *5). Adjudicators
are instructed to “explain the weight given to opinions from these ‘other sources,’ or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when

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such opinions may have an effect on the outcome of the case.” Frantz, 509 F.3d at
1302 (quoting SSR 06-03p, 2006 WL 2329939 at *6).
Given the treatment provided to Mr. Mills by Ms. Warwick, her opinions as to Mr.
Mills’ mental limitations should have been properly weighed against other medical
opinions in the record. The ALJ also was required to adequately explain why she
rejected Ms. Warwick’s opinions as to Mr. Mills’ limitations. It appears that the ALJ
agreed with some of Ms. Warwick’s opinions—such as her opinions that Mr. Mills has
moderate limitations in his abilities to carry out detailed instructions and in interacting
with co-workers—because the ALJ accounted for these limitations in her RFC
determination. (AR 23). However, the ALJ states that she gave Ms. Warwick’s opinions
only little weight, without specifying which of her opinions the ALJ assigned this weight.
The ALJ’s decision, therefore, is not sufficiently specific with regard to the weight given
to Ms. Warwick’s opinions, and the Court is unable to meaningfully review the ALJ’s
findings. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (holding that “the
absence of findings supported by specific weighing of the evidence” in the record leaves
the Court unable to assess whether relevant evidence adequately supports the ALJ’s
conclusion); see also Haga, 482 F.3d at 1208 (“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.”) (citations omitted); Lewis v. Berryhill, No. 165061, 2017 WL 676502, at *2 (10th Cir. Feb. 21, 2017) (unpublished) (holding that the
ALJ erred when he did not specify which parts of a doctor’s opinion were inconsistent
with other medical evidence, and finding this “lack of specificity [to be] confusing” in light
of agreement on some issues between the ALJ and the doctor).

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The Commissioner contends that the ALJ properly assigned Ms. Warwick’s
opinions little weight because Ms. Warwick had only treated Mr. Mills on three
occasions, and “[a]s such, Ms. Warwick did not have a longitudinal picture of his mental
functioning.” (Doc. 21 at 9). This was not given by the ALJ as a reason for her rejection
of Ms. Warwick’s opinions, however, so this is an improper post hoc rationalization by
the Commissioner. See Carpenter, 537 F.3d at 1267 (“Judicial review is limited to the
reasons stated in the ALJ’s decision.”). Therefore, the Court may not adopt this reason
in order to affirm the ALJ. Id.
The Commissioner also argues that the ALJ properly discounted Ms. Warwick’s
opinions because they are not supported by her own treatment notes. (Doc. 21 at 10).
While the ALJ relied on Ms. Warwick’s notes that Mr. Mills’ memory was intact and that
he was alert and oriented at his visits with her, the ALJ failed to note that Ms. Warwick’s
opinions regarding Mr. Mills’ limitations are consistent with other, similar findings in the
record. See AR 271, Dr. Hughson’s findings of moderate limitations in carrying out
instructions, working without supervision, and interacting with the public; AR 40-41, Dr.
Mohney’s findings of moderate limitations in working without supervision, making simple
work-related decisions, interacting with the public and supervisors, and responding
appropriately to changes in the workplace; AR 53-54, Dr. Atkins’ findings of moderate
limitations in maintaining attention and concentration for extended periods, working
without supervision, making simple work-related decisions, interacting with the public
and supervisors, and responding appropriately to changes in the workplace. The ALJ’s
failure to account for how she resolved these inconsistencies constitutes legal error.
See Kerwin, 244 Fed. Appx. at 884; Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir.

15

2003) (“Without the benefit of the ALJ’s findings supported by the weighing of this
relevant evidence, we cannot determine whether his conclusion . . . is itself supported
by substantial evidence.”).
Finally, the Commissioner contends that the ALJ’s decision to reject Ms.
Warwick’s opinions is supported by other evidence in the record. (Doc. 21 at 10-11).
However, this was not cited by the ALJ as a reason for her rejection of Ms. Warwick’s
opinions, so this is another improper post hoc rationalization by the Commissioner. In
addition, the Court finds no support for the ALJ’s statement that she rejected Ms.
Warwick’s opinions, in part, because Ms. Warwick had not observed Mr. Mills in a work
setting. The Court notes that the Commissioner did not address this issue in her
response brief.
Based on the foregoing, the Court finds that the ALJ failed to give reasons that
are “sufficiently specific to [be] clear to any subsequent reviewers” for the weight that
she assigned to Ms. Warwick’s opinions, Langley, 373 F.3d at 1119 (citation omitted),
and that the ALJ failed to “explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved,” SSR 96-8p, 1996 WL
374184, at *7. Therefore, the Court agrees with Mr. Mills that the ALJ’s findings with
regard to Ms. Warwick’s opinions do not permit meaningful review and that the ALJ
failed to follow proper legal standards.
B. The ALJ’s Consideration of Dr. Mohney’s Opinions
Next, Mr. Mills contends that the ALJ erred by failing to account for all of the
limitations found by non-examining State Agency psychologist Dr. Mohney. (Doc. 17 at
17-19). Specifically, Mr. Mills contends that the ALJ failed to account for Dr. Mohney’s

16

findings that Mr. Mills has limitations in his ability to sustain an ordinary routine without
special supervision, and in accepting instructions and responding appropriately to
criticism from supervisors. Id. at 18. Mr. Mills argues that “[h]ad ALJ Farris recognized
and incorporated these limitations in her assessment, a more restrictive RFC would
have resulted, precluding Mr. Mills from employment.” Id. at 19.
In response, the Commissioner states that Dr. Mohney’s findings of moderate
limitations were made in the Section I worksheet portion of her assessment, which does
not constitute an RFC assessment. (Doc. 21 at 12). Instead, the Commissioner argues
that the Section III narrative conclusion is the actual RFC determination, and that the
ALJ did not need to include the moderate limitations indicated in Section I because she
relied on Dr. Mohney’s Section III narrative conclusion. Id. The Commissioner states
that the ALJ found that Mr. Mills was more limited in his ability to interact with others
than Dr. Mohney found, and that the ALJ’s RFC determination is consistent with Dr.
Mohney’s narrative conclusions. Id. at 13-14. In addition, the Commissioner contends
that the ALJ found that Plaintiff could perform unskilled work, which involves working
with things instead of data or people, that the ALJ “set forth a very restrictive mental
[RFC] assessment,” and that the ALJ “was not required to adopt all portions of [Dr.
Mohney’s] opinions verbatim.” Id. (emphasis in original) (citing Howard v. Barnhart, 379
F.3d 945, 949 (10th Cir 2004)).
The Tenth Circuit has discussed the difference between Sections I and III of the
MRFC Assessment in unpublished decisions. See, e.g., Carver v. Colvin, 600 Fed.
Appx. 616 (10th Cir. 2015) (unpublished). In Carver, the claimant argued that the ALJ
erred by failing to incorporate all of the Section I limitations in a non-examining State

17

Agency physician’s MRFC Assessment. The Tenth Circuit explained that Section I “is
for recording summary conclusions derived from the evidence in the file and directs that
detailed explanation of the degree of limitation for each category is to be recorded in
Section III.” Id. at 618 (quotations and alterations omitted). That language is consistent
with the Social Security Administration’s Program Operations Manual System (“POMS”),
which “provides that Section III of the MRFC, not Section I, is for recording a medical
consultant’s formal mental RFC assessment, and that adjudicators are to use the
Section III narrative as the RFC assessment.” Id. at 618-19 (discussing POMS DI
25020.010 B.1., POMS DI 24510.060 B.4.a., and POMS DI 24510.065 A.). However,
the degree and extent of the capacity or limitation found in Section I must be described
in narrative format in Section III, and Section III should “explain the conclusions
indicated in [S]ection I, in terms of the extent to which these mental capacities or
functions could or could not be performed in work settings.” Id. at 619 (quoting POMS
DI 24510.060 B.4.a. and B.4.b.). The Tenth Circuit observed that if a consultant’s
“Section III narrative fails to describe the effect that each of the Section I moderate
limitations would have on the claimant's ability, or if it contradicts limitations marked in
Section I, the MRFCA cannot properly be considered part of the substantial evidence
supporting an ALJ’s RFC finding.” Id. (citing Gorringe v. Astrue, 898 F. Supp. 2d 1220,
1224-25 (D. Colo. 2012), and Baysinger v. Astrue, No. 11-cv-00333-WYD, 2012 WL
1044746, at *5-6 (D. Colo. Mar. 28, 2012) (unpublished)).
Applying these principles in Carver, the Tenth Circuit found that the consultant’s
Section III narrative “adequately encapsulated” his Section I finding that the claimant
had a moderate limitation in his ability to accept instructions and respond appropriately

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to supervisor criticism. Id. In Section III, the consultant opined that the claimant could
“relate to supervisors and peers on a superficial work basis” and in a work scenario
involving only “simple tasks with routine supervision.” Id. The Court determined that
these statements adequately explained the effects of a moderate limitation in the
claimant’s ability to accept instructions and respond appropriately to supervisor
criticism, because “the ALJ sufficiently captured the essence of the Section III functional
limitations by stating that Carver could understand, remember, and carry out simple
instructions in a work-related setting and could interact with co-workers and supervisors,
under routine supervision.” Id. at 619-20. The Tenth Circuit reasoned that interacting
with supervisors in the course of routine supervision over simple work was “tantamount”
to the “superficial” interaction encountered in such jobs, and refused to “parse the ALJ’s
language too finely.” Id. at 620.
In this case, Dr. Mohney conducted an MRFC Assessment on December 10,
2012. (AR 39-41). In Section I of the MRFC, Dr. Mohney found that Mr. Mills has
moderate limitations in: understanding and remembering detailed instructions; carrying
out detailed instructions; maintaining attention and concentration for extended periods;
sustaining an ordinary routine without special supervision; making simple work-related
decisions; interacting appropriately with the general public; accepting instructions and
responding appropriately to criticism from supervisors; and responding appropriately to
changes in the work setting. (AR 40-41).2 In Section III of the MRFC, Dr. Mohney
explained several of these findings in narrative form. As to Mr. Mills’ sustained
concentration and persistence capacities, Dr. Mohney stated that Mr. Mills has

2

While Mr. Mills states in his motion that Dr. Mohney found that he has “significant” limitations (Doc. 17 at
18), the record shows that Dr. Mohney, instead, found only moderate limitations (AR 40-41)

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borderline intellectual capacity, and that he requires limits in working without any
supervision and in making work-related decisions. (AR 40). For adaptation limitations,
Dr. Mohney found that Mr. Mills “could respond to changes in [the] workplace slowly.”
(AR 41). Finally, Dr. Mohney found that Mr. Mills “can understand, remember and carry
out simple instructions, make simple decisions, attend and concentrate for two hours at
a time, interact adequately with co-workers and supervisors, and respond appropriately
to changes in a routine work setting.” Id.
The ALJ stated that she “considered opinion evidence in accordance with the
requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.” (AR
23). In her decision, the ALJ noted that, on June 12, 2013, State Agency psychological
consultant Dr. Atkins affirmed Dr. Mohney’s findings. (AR 26 and 51). The ALJ gave Dr.
Mohney’s and Dr. Atkins’ opinions moderate weight, stating that “they are experienced
at reviewing records and assigning mental health restrictions,” but that “more recent
evidence dose [sic] support a finding that [Mr. Mills] would to [sic] better with less
interaction with the public and co-workers.” (AR 26). The ALJ translated Dr. Mohney’s
findings into only two nonexertional limitations: working with short and simple
instructions, and only occasional and superficial interaction with the general public and
co-workers. (AR 23).
Dr. Mohney found in Section I that Mr. Mills has moderate limitations in his ability
to sustain an ordinary routine without special supervision and in accepting instructions
and responding appropriately to criticism from supervisors, and in Section III concluded
that Mr. Mills “requires limits in working [without] any supervision.” (AR 40-41). The
ALJ’s RFC determination, however, fails to account for these limitations. While Dr.

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Mohney offered an additional explanation in her MRFC that Mr. Mills can “interact
adequately with co-workers and supervisors, and respond appropriately to changes in a
routine work setting” (AR 41), the ALJ fails to address whether this explanation
accounts for Dr. Mohney’s findings that Mr. Mills requires limits in working without
supervision, and has moderate limitations in accepting instructions and responding
appropriately to criticism from supervisors. Although the Commissioner is correct in
stating that the ALJ does not have to adopt all of Dr. Mohney’s findings, it is well-settled
that “[t]he ALJ may not pick and choose which aspects of an uncontradicted medical
opinion to believe, relying on only those parts favorable to a finding of nondisability.”
Haga, 482 F.3d at 1208. The ALJ stated that she placed moderate weight on Dr.
Mohney’s opinions, which included requiring limits in working without supervision and a
routine work setting; however, these limitations are not reflected in the ALJ’s RFC
determination. Instead, the ALJ seems to have implicitly rejected those findings, and
therefore inappropriately “‘us[ed] portions of evidence favorable to [her] position while
ignoring other evidence.’” Carpenter, 537 F.3d at 1265 (citing Hardman v. Barnhart, 362
F.3d 676, 681 (10th Cir. 2004)). This selective application of Dr. Mohney’s report
without explanation is error, and requires a remand in order for the ALJ to explain the
evidentiary basis for her RFC determination.
The Commissioner relies on Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir.
2016), for her contention that the ALJ did not need to discuss Dr. Mohney’s Section I
findings because the ALJ relied on the Section III narrative. (Doc. 21 at 12, 14). In
Smith, the Tenth Circuit held the ALJ’s RFC adequately incorporated all of the
claimant’s functional limitations, and the Tenth Circuit did not base its holding on the

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fact that the ALJ relied on Section III rather than Section I. 821 F.3d at 1269. Therefore,
the Court finds that this case does not support the Commissioner’s position. Moreover,
a discrepancy between Sections I and III “does not mean, of course, that the ALJ should
turn a blind eye to any moderate limitations enumerated in Section I that are not
adequately explained in Section III.” Lee v. Colvin, No. 15-6027, 631 Fed. Appx. 538,
541 (10th Cir. 2015) (unpublished).
The Commissioner also contends that the ALJ did not err because she found
that Mr. Mills is capable of performing unskilled work, which primarily involves working
with things rather than people. (Doc. 21 at 14) (citing 20 C.F.R. pt. 404. subpt. P, app. 2,
§§ 201.00(i), 202.00(g)). A limitation to unskilled work does not necessarily address an
individual’s mental limitations. Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015)
(citing Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012)). Unskilled work “just
account[s] for issues of skill transfer, not impairment of mental functions - which ‘are not
skills but, rather, general prerequisites for most work at any skill level.’” Chapo, 682
F.3d at 1290 n.3 (quoting Wayland v. Chater, No. 95-7029, 76 F.3d 394, *2 (10th Cir.
Feb. 7, 1996) (unpublished)). “[W]hile there may be circumstances in which a particular
mental limitation could be so obviously accommodated by a reduction in skill level that
particularized vocational evidence addressing that limitation might be dispensed with,
that is clearly not the case here.” Wayland, 76 F.3d at *2. Dr. Mohney’s findings
regarding Mr. Mills’ limitations could affect jobs that do not primarily involve working with
people. Without sufficient analysis from the ALJ or the VE as to these limitations,
however, the Court cannot say that limiting Mr. Mills to unskilled work would
accommodate these limitations.

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Based on the foregoing, the Court agrees with Mr. Mills that the ALJ failed to
account for Dr. Mohney’s findings that Mr. Mills has limitations in his ability to sustain an
ordinary routine without special supervision, and in accepting instructions and
responding appropriately to criticism from supervisors. On remand, the ALJ must either
incorporate those limitations in her RFC determination, or properly explain why they are
not included.
V.

Conclusion

For the reasons stated above, the Court concludes that the ALJ failed to properly
weigh the medical opinions of Ms. Warwick and Dr. Mohney. The Court directs the ALJ,
on remand, to properly weigh all medical opinions in the record.
IT IS THEREFORE ORDERED that Mr. Mills’ Motion to Reverse and Remand for a
Rehearing With Supporting Memorandum, (Doc. 17), is GRANTED, and that this case
be REMANDED to the Commissioner for further proceedings.

________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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