Montoya v. Social Security Administration

Filing 27

ORDER by Magistrate Judge Jerry H. Ritter granting 16 Motion to Remand to Agency. (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LORRAINE MONTOYA,
Plaintiff,
v.

CIV 16-0901 JHR

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

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff Lorraine Montoya’s Motion to
Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 16), filed March 10,
2017. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have
consented to me serving as the presiding judge and entering final judgment. Doc.26. Having
reviewed the parties’ submissions, the relevant law, and the relevant portions of the
Administrative Record, the Court will grant the Motion.
I.

Introduction
Plaintiff worked as a registered nurse until, she claims, her physical and psychological

impairments rendered her disabled. In reaching the opposite conclusion, Administrative Law
Judge Ann Farris ascribed “little weight” to multiple psychological opinions in the record,
effectively rejecting them. In doing so, however, the ALJ failed to apply the correct legal
standards and her reasoning is not supported by substantial evidence. Accordingly, the Court will
reverse the ALJ’s finding of nondisability, and remand this case for further proceedings
consistent with this opinion.

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II.

Procedural History
Plaintiff filed an application with the Social Security Administration for disability

insurance benefits under Title II of the Social Security Act on March 22, 2012, with a protective
filing date of March 21, 2012. AR at 154, 171. 1 Plaintiff alleged a disability onset date of
September 15, 2010, the day she stopped working, due to epilepsy/grand mal seizures, anxiety
and depression. AR at 171, 175. Plaintiff most recently worked as a registered nurse, and, at the
time of her hearing, had returned to work one day a week. AR at 43, 176.
The agency denied Plaintiff’s claims initially and upon reconsideration, and she requested
a de novo hearing before an administrative law judge. AR at 70-125. ALJ Farris held an
evidentiary hearing on January 27, 2015, at which Plaintiff appeared via video conference. AR at
33-69. The ALJ issued an unfavorable decision on April 8, 2015. AR at 9-32. Plaintiff submitted
a Request for Review of the ALJ’s decision to the Appeals Council, which the Council denied on
June 7, 2016. AR at 1-7. As such, the ALJ’s decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now has
jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that she is unable to engage in “any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §
404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. § 404.1520(a)(4). 2

1

Document 11-1 comprises the sealed Certified Administrative Record (“AR”). The Court cites the Record’s
internal pagination, rather than the CM/ECF document number and page.
2

The Tenth Circuit recently summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016):

2

At Step One of the sequential evaluation process, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since her alleged onset date. AR at 15. At Step Two, she
determined that Plaintiff has the severe impairments of “epilepsy, obsessive-compulsive
disorder, post-traumatic stress disorder (PTSD), a panic disorder, and a major depressive
disorder[.]” AR at 15. At Step Three, the ALJ concluded that Plaintiff’s impairments,
individually and in combination, do not meet or medically equal the regulatory “listings.” AR at
15-17.
When a plaintiff does not meet a listed impairment, the ALJ must determine her residual
functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC is a multidimensional description of
the work-related abilities a plaintiff retains in spite of her medical impairments. 20 C.F.R. §
404.1545(a)(1). “RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined
that Plaintiff retains the RFC to
perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant must avoid exposure to hazardous conditions
including unprotected heights, ladders, scaffolds, and dangerous moving
machinery and the claimant is limited to simple, routine tasks with no production
rate pace (i.e., no assembly type jobs in which the individual must finish job tasks
before someone else can do his or her job), no interaction with the general public,
and only occasional and superficial interactions with co-workers.
AR at 17.

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

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Employing this RFC at Steps Four and Five, and relying on the testimony of a Vocational
Expert, the ALJ determined that Plaintiff is unable to perform her past relevant work as a nurse
tech, licensed practical nurse and registered nurse. AR at 26. However, the ALJ found that there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform
despite her limitations. AR at 26-27. Specifically, the ALJ determined that Plaintiff retains the
functional capacity to work as an addresser in an office setting, flatwork tier, or a kitchen helper.
AR at 27. Accordingly, the ALJ determined that Plaintiff is not disabled and denied benefits. AR
at 28.
III.

Legal Standards
This Court “review[s] the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether the correct legal standards were
applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. KeyesZachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. . . . 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.” Langley v. Barnhart, 373 F.3d 1116, 1118
(10th Cir. 2004) (quoted authority omitted).
IV.

Analysis
Plaintiff appeals the ALJ’s decision on two grounds. See Doc. 16. First, she argues that

the ALJ improperly rejected the opinions of her treating neurologist, Paul Walsky, M.D., that she
was unable to work. Id. at 1. Second, she argues that the ALJ failed to give adequate reasons for

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rejecting the opinions of examining psychologists Richard Madsen, Ph.D., Kathryn Benes,
Ph.D., and Esther Davis, Ph.D. Id.
A) Treatment of Dr. Walsky’s Opinions
Paul Walsky, M.D. treated Plaintiff for a total of 25 years, beginning on March 16, 1988.
See AR at 455-56. During the course of Plaintiff’s treatment Dr. Walsky authored three notes,
which the ALJ considered as “medical opinions.” See AR at 19; 20 C.F.R

§ 404.1527(a)(1)

(“Medical opinions are statements from acceptable medical sources that reflect judgments about
the nature and severity of your impairment(s)[.]”). These notes opined that Plaintiff would be off
work for varying degrees of time. See AR at 319, 320, 436. The ALJ addressed these opinions as
follows:
In his September 15, 2011 note, Dr. Walksy opined that the claimant is off work
for three months; she is to return on December 19, 2011 (Exhibits 3-F, p.8). Dr.
Walksy also opined in his November 23, 2011 note that "due to a medical
condition," the claimant is unable to work for "an indefinite period of time"
(Exhibit 3-F, p.7). On February 7, 2012, Dr. Walsky opined that the claimant will
remain out of work for longer than one year, until further notice (Exhibit 9-F,
p.6). I give little weight to Dr. Walksy's opinions, since they are not consistent
with the record as a whole, including the objective medical evidence from treating
and examining sources, her medical treatment, and her daily activities.
AR at 19. In other words, the ALJ “effectively rejected” Dr. Walsky’s opinions that Plaintiff
cannot work. 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).
Plaintiff argues that the ALJ failed to give good reasons for rejecting these opinions. Doc.
16 at 16. Relying on Lewis v. Berryhill, 680 F. App’x (10th Cir. 2017), she argues that the ALJ
failed to apply the correct legal standards to Dr. Walsky’s opinions because the reasons the ALJ

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gave were neither legitimate nor specific. Id. at 18. The Commissioner counters that the ALJ’s
reasons were not as vague as those in Lewis, and so her decision should stand. As further
explained below, the Court agrees with Plaintiff that the ALJ’s first two reasons, that these
findings “are not consistent with the record as a whole, including the objective medical evidence
from treating and examining sources, [and] her medical treatment” were too vague to withstand
scrutiny. However, even assuming arguendo that the ALJ erred, the Court finds any error to be
harmless because the ALJ permissibly relied upon the inconsistency of these opinions with
Plaintiff’s daily activities.
“[C]ase law, the applicable regulations, and the Commissioner’s pertinent Social Security
Ruling (SSR) all make clear that in evaluating the medical opinions of a claimant’s treating
physician, the ALJ must complete a sequential two-step inquiry, each step of which is
analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).
An ALJ must first consider whether the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques. . . . If the ALJ finds that
the opinion is well-supported, he must then confirm that the opinion is consistent
with other substantial evidence in the record.
Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014) (quoting Robinson v. Barnhart, 366 F.3d
1078, 1082 (10th Cir. 2004)). “If the opinion is deficient in either of these respects, it is not to be
given controlling weight.” Krauser, 638 F.3d at 1330. However, “[e]ven if a treating opinion is
not given controlling weight, it is still entitled to deference; at the second step in the analysis, the
ALJ must make clear how much weight the opinion is being given . . . and give good reasons,
tied to the factors specified in the cited regulations for this particular purpose, for the weight
assigned.” Id. The regulatory factors that an ALJ must consider at this second step are:
(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
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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.
Id. at 1331; see also 20 C.F.R. § 404.1527. Not every factor will apply in every case; however,
an ALJ’s decision must be “sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's medical opinion and the reasons for that
weight.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (citation omitted).
The ALJ appears to have skipped the first step under the treating physician analysis and
leapt directly to the second, as she does not affirmatively state whether Dr. Walsky’s opinions
are entitled to controlling weight. In the past, judges in this district have held that skipping the
first step in the analysis is reversible error. See, e.g., Wellman v. Colvin, CIV 13-1122 KBM,
Doc. 19 (D.N.M. Dec. 3, 2014). Faced with this issue in the first instance, this Court agrees that
this result appeared mandatory under Tenth Circuit law. See Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003) (“A finding at this stage (as to whether the opinion is either unsupported or
inconsistent with other substantial evidence) is necessary so that we can properly review the
ALJ’s determination on appeal.”) (emphasis added); see also Robinson, 366 F.3d at 1083 (noting
that the ALJ failed to expressly state whether an opinion would be afforded controlling weight);
see also Daniell v. Astrue, 384 F. App’x 798, 801 (10th Cir. 2010) (unpublished) (quoting
Watkins, 350 F.3d at 1300).
However, the Tenth Circuit has also indicated that where a reviewing court can determine
that an ALJ “implicitly declined to give the opinion controlling weight” there is no ground for
remand. Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014) (“Ms. Mays argues that the ALJ did
not expressly state whether he had given Dr. Chorley’s opinion ‘controlling weight.’ But the ALJ
implicitly declined to give the opinion controlling weight. Because we can tell from the decision
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that the ALJ declined to give controlling weight to Dr. Chorley’s opinion, we will not reverse on
this ground.”); see also Causey v. Barnhart, 109 F. App’x 375, 378 (10th Cir. 2004)
(unpublished) (“Implicit in the ALJ’s decision is a finding that Dr. Waldrop’s opinion . . . is not
entitled to controlling weight.”); see also Andersen v. Astrue, 319 F. App’x 712, 721 (10th Cir.
2009) (unpublished) (“It is apparent that the ALJ concluded that these opinions were not entitled
to controlling weight. Although ordinarily the ALJ should have made explicit findings to this
effect . . . we are not troubled by the substance of the ALJ’s determination.”). The Court will
accordingly not reverse the ALJ for failing to discuss whether Dr. Walsky’s opinions were
entitled to controlling weight, as her decision to ascribe the opinion “little weight” shows that she
implicitly declined to give it controlling weight.
Alternatively, Dr. Walsky’s opinion that Plaintiff is unable to work is an issue reserved
for the Commissioner, and so it is inherently not entitled to controlling weight. See 20 C.F.R. §
404.1527(d). “Opinions on some issues . . . are not medical opinions . . . but are, instead,
opinions on issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case.” As such, “[a] statement by a medical source that you are ‘disabled’ or
‘unable to work’ does not mean that we will determine that you are disabled.” Rather, the
administration “will not give any special significance to the source of an opinion on issues
reserved to the commissioner.” Id.; see Wade v. Astrue, 268 F. App’x 704, 706 (10th Cir. 2008)
(unpublished) (affirming the failure of an ALJ to determine controlling weight on the issue of
disability); see also Mayberry v. Astrue, 461 F. App’x 705, 708 (10th Cir. 2012) (unpublished)
(“a physician’s opinions on issues reserved to the Commissioner are not entitled to controlling
weight or any special significance”). The Tenth Circuit recently reaffirmed these principles in

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Olson v. Berryhill, 689 F. App’x 628, 631 (10th Cir. July 10, 2017) (affirming an ALJ’s rejection
of a doctor’s opinion on an issue reserved to the Commissioner).
This, of course, does not end the inquiry. The ALJ was still required to consider the
regulatory factors stated in 20 C.F.R. § 404.1527 in determining the weight to be assigned to Dr.
Walsky’s opinions, even opinions on issues reserved to the Commissioner. Wade, 268 F. App’x
at 706; Mayberry, 461 F. App’x at 708 (“While a physician’s opinions on issues reserved to the
commissioner are not entitled to controlling weight or any special significance, the ALJ was still
required to provide an evaluation of the opinions and explain his reasons for either rejecting or
accepting them.”). See SSR 96-5P, 1996 WL 374183 at *3 (“[O]pinions from any medical source
on issues reserved to the Commissioner must never be ignored. . . . In evaluating the opinions of
medical sources on issues reserved to the Commissioner, the adjudicator must apply the
applicable factors in 20 CFR 404.1527(d) and 416.927(d).”). Here the ALJ provided three
reasons for rejecting Dr. Walsky’s opinions that Plaintiff cannot work: that they are “not
consistent with the record as a whole, including the objective medical evidence from treating and
examining sources, her medical treatment, and her daily activities.” AR at 19.
The ALJ’s first two reasons are facially valid under the regulations, but they are not
specific enough to withstand scrutiny. This is because the ALJ does not specify any portions of
the record that are inconsistent with Dr. Walsky’s opinions. Likewise, in Lewis, the Tenth Circuit
determined that the ALJ’s rationale - that an assessment was “inconsistent with other medical
evidence” - was “too vague,” because the ALJ failed to specify which part of the medical record
was inconsistent with the assessment. Id. at 647. As such, the court was “left to speculate about
the perceived inconsistencies between [the doctor’s] assessment and the remainder of the
medical record.” Id. (citing Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004), for the

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proposition that “the administrative law judge’s reasons for assessing a treating source’s medical
opinion must be sufficiently specific for meaningful judicial review.”). The Tenth Circuit
followed suit in Kellams v. Berryhill, 2017 WL 3432373 at *7 (10th Cir. Aug. 10, 2017) (citing
Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004), for the proposition that an ALJ
“should specifically highlight those portions of the record that were allegedly inconsistent.”).
Under Lewis and Kellams, the ALJ’s failure to point to specific instances of inconsistent
medical evidence in this case renders her reasoning on this point deficient as a matter of law. The
same is true for the ALJ’s finding that Dr. Walsky’s opinions are inconsistent with Plaintiff’s
medical treatment: which treatment? The ALJ does not say. See Lewis, 680 F. App’x at 647. The
Commissioner attempts to support the ALJ’s reasoning on these points by citing to contrary
medical evidence. See Doc. 17 at 6. However, “this 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.” Haga v. Astrue, 482 F.3d 1205, 1207–08 1208 (10th Cir. 2007). Thus, the
Commissioner’s attempts to salvage these two reasons are rejected.
However, putting these two invalid reasons aside, the ALJ opined that Dr. Walsky’s
opinions were inconsistent with Plaintiff’s daily activities. AR at 19. When discussing her
credibility, the ALJ summarized Plaintiff’s daily activities as follows:
Ms. Montoya testified that she drives only in town and that she tries to keep track
of the household bills. The claimant and her husband indicated in their Function
Reports that the claimant is able pay bills and use a checkbook but that she does
not handle a savings account because she has no savings (Exhibits 6-E, pp.4 and
7-E, p.6). She stated she uses the computer to get e-mail and goes on social
media, which she stated she does for "a couple of minutes here and there" almost
every day. She stated that her husband does the grocery shopping and cooking.
She testified that she does not go to church but her prior statements and those of
her husband contradict her testimony as discussed in detail above. The claimant
testified that she helps her children with homework. However, she told Dr. Davis
and the examiner from Spe Salvi that she home schools her children (Exhibits 5F, p.10, 6-F, p.5, and 10-F, p.7). She failed to mention this in her testimony. The
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claimant's husband, Michael Montoya, testified that he does all the cooking,
cleaning, and shopping. However, the claimant stated in her Function Report that
she is able to do cleaning, laundry, dishes, dusting, and vacuuming (Exhibit 6-E,
p.3). The claimant's husband also observed in his third-party Function Report that
the claimant is able to do laundry and cleaning (Exhibit 7-E, p.4). He also
observed that the claimant had play dates with their daughters and friends in her
home once a week. She visited with their daughters’ friends’ mother. This
occurred once a week for two hours (Exhibit 7-E, p.7). The claimant's husband
testified that the claimant eats by herself in the living room. He also stated she can
generally be found on the couch on any given day. However, the claimant's own
statements suggest that she is more active than her husband's testimony indicated.
AR at 25. Plaintiff does not challenge the ALJ’s characterization of her daily activities on appeal.
See Docs. 16, 20. Instead, she argues that the ALJ failed to point to specific daily activities that
are inconsistent with Dr. Walsky’s opinions. See Doc. 20 at 3. But, as the Commissioner points
out, Plaintiff’s activities as summarized by the ALJ hardly “support Dr. Walsky’s opinion that
she was unable to perform any work.” Doc. 17 at 6 (emphasis added) (citing Newbold v. Colvin,
718 F.3d 1257, 1266 (10th Cir. 2013). Plaintiff does not counter the Commissioner’s reliance on
Newbold, see Doc. 20, and the Court finds that it applies here, as the ALJ was required to
consider whether Dr. Walsky’s opinions were consistent with the record as a whole. See
Newbold, 718 F. 3d at 1266 (affirming an ALJ’s finding that a doctor’s assessed extreme
limitations were inconsistent with the claimant’s reported activities of daily living, which
included caring for her own personal needs, doing household chores, using a computer, driving,
shopping, reading, watching television, visiting with friends, and attending church on a weekly
basis); see Scott v. Berryhill, 695 F. App’x 399, 404 (10th Cir. July 10, 2017) (“Taking the
[claimant’s function] report as a whole, the ALJ permissibly concluded it was inconsistent with
some of the extreme limitations described by Dr. Jennings.”). As such, the Court will not reverse
the ALJ for her treatment of Dr. Walsky’s opinions that Plaintiff cannot work.

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B) Treatment of the Examining Physician’s Opinions
Plaintiff’s second argument is directed at the ALJ’s treatment of three examining
psychologists: Richard Madsen, Ph.D., Kathryn Benes, Ph.D., and Esther Davis, Ph.D. See Doc.
19 at 25. These doctor’s findings are considered “examining medical-source opinions” under the
regulations. Ringgold, 644 F. App’x at 843 (citing Chapo, 682 F.3d at 1291; 20 C.F.R. §§
404.1527(c)(1), 416.927(c)(1)). The ALJ discussed the findings of each, and decided to afford at
least one aspect of them “little weight.” See AR at 20-24. “An examining medical-source opinion
‘may be dismissed or discounted, of course, but that must be based on an evaluation of all of the
factors set out in the . . . regulations and the ALJ must provide specific, legitimate reasons for
rejecting it.’” Id. The same factors that apply to treating physicians apply here:
(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.
Id. (citing Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.2003); Chapo, 682 F.3d at 1291;
20 C.F.R. §§ 404.1527(c), 416.927(c)). “The ALJ is not required to mechanically apply all of
these factors in a given case. . . . [i]t is sufficient if [s]he ‘provide[s] good reasons in [her]
decision for the weight [s]he gave to the [physician’s] opinions.’” Id. (quoting Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007)). Still, those reasons must be legitimate, specific, and
supported by substantial evidence.
The Court finds the ALJ’s treatment of Dr. Davis’s opinion to be the most deficient, and
so will begin and end its discussion with her. Plaintiff presented to Dr. Davis on March 19, 2015,
for a psychological evaluation for her disability claim (she was referred by her attorney). See AR

12

at 471-483. Dr. Davis conducted a clinical interview, performed a mental status examination, and
had Plaintiff complete a Montreal Cognitive Assessment (MOCA), Burns Depression Inventory
(BDI), and Generalized Anxiety Disorder 7-item (GAD-7) scale. AR at 472. Dr. Davis also
reviewed Plaintiff’s medical records. Id. In terms of her mental status, Dr. Davis noted that
“[h]er overall psychomotor activity appeared to be slow.” AR at 476. Plaintiff scored a 41 on the
BDI, indicating “severe depression.” AR at 477. Her score on the GAD-7, a 21, was “the highest
score in this range that one can score[,]” indicating “severe anxiety.” AR at 478. Her scores on
the MOCA were normal. Id. Dr. Davis diagnosed Major Depressive Disorder, Post-Traumatic
Stress Disorder, Obsessive Compulsive Disorder, Dissociative Disorder, NOS, Panic Disorder
with Agoraphobia, Dysthymia, and Generalized Anxiety Disorder. Id. She assigned a Global
Assessment of Functioning 3 (GAF) score of 41.

3

As the Tenth Circuit summarized in Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 (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.”
• 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).”

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Dr. Davis also completed a Medical Assessment of Ability to do Work-Related Activities
form. See AR at 480-81. On this form, Dr. Davis found Plaintiff to be markedly 4 impaired in her
ability to “remember locations and work-like procedures . . . understand and remember detailed
instructions . . . maintain attention and concentration for extended periods of time . . . perform
activities within a schedule, maintain regular attendance and be punctual . . .

work in

coordination with or proximity to others without being distracted by them . . . complete a normal
workday and workweek without interruptions from psychological based symptoms and to
perform at a consistent pace without unreasonable number and length of rest periods . . . accept
instructions and respond appropriately to criticism from supervisors . . . get along with
• 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. (citing American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 32, 34 (Text Revision
4th ed. 2000)). The Court notes that the current Diagnostic and Statistical Manual has abandoned the use of GAF
scores. Am. Psychiatric Ass'n Diagnostic and Statistical Manual of Mental Disorders (DSM-V) at 16 (5th ed. 2013).
Nonetheless, they continue to be used in psychiatric practice, as evidenced by this case.
4

The form defined “marked” as “a severe limitation which precludes the individual’s ability usefully to perform the
designate activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week or an equivalent schedule. The
individual cannot be expected to function independently, appropriately, and effectively on a regular and sustained
basis.” Id. (emphasis in original).

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coworkers or peers without distracting them or exhibiting behavioral extremes . . . respond
appropriately to changes in the workplace . . . [and] travel in unfamiliar places or use public
transportation.” AR at 480-81. Dr. Davis also found Plaintiff to be moderately 5 limited in her
ability to understand and remember very short and simple instructions . . . maintain attention and
concentration for extended periods of time . . . sustain an ordinary routine without special
supervision . . . make simple work-related decisions . . . [and] set realistic goals or make plans
independently of others.” Id. On the other hand, Dr. Davis indicated that Plaintiff is only slightly
(or not significantly) limited in her ability to “carry out very short and simple instructions . . .
interact appropriately with the general public . . . ask simple questions or request assistance . . .
[and] maintain socially appropriate behavior and adhere to basic standards of neatness and
cleanliness.” Id.
After discussing this evidence, the ALJ addressed Dr. Davis’s opinions as follows:
I give significant weight to Dr. Davis's assessment of slight limitations in the
areas noted above, since her opinions are consistent with the record as a whole,
including the claimant's treatment records, her mental health treatment, and her
daily activities. However, I give little weight to Dr. Davis' assessment of moderate
and marked limitations set forth above as well as the GAF score of 41, since these
opinions are not consistent with the record as a whole, including the claimant's
lack of mental health treatment, her treatment records discussed above, and her
daily activities. I have also taken into account that Dr. Davis's evaluation is
explicitly a "psychological evaluation for disability claim" (Exhibit 10-F, p.3). As
such, it is only a snapshot of the claimant's functioning on the date of the
examination and it lacks the longitudinal perspective of the claimant's treating
sources discussed above.
AR at 24.

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The form defines “moderate” as “[a] limitation that seriously interferes with the individual’s ability to perform the
designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent schedule.
The individual may be able to perform this work-related mental function on a limited basis. However, the individual
should not be placed in a job setting where this mental function is critical to job performance or to job purpose.” Id.
(emphasis in original).

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Plaintiff argues that the ALJ’s treatment of Dr. Davis’s opinions was flawed for two
primary reasons. Her first objection is that “ALJ Farris essentially divided Dr. Davis’ assessment
into two separate opinions, giving ‘significant weight’ to the portions that supported her decision
and rejecting those portions that did not.” Doc. 16 at 20. While she fails to invoke a specific case
holding that to do so would be improper, it is well-established in this circuit that “[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); Harrold v. Berryhill, 2017 WL 4924662, at *3 (10th Cir. Oct. 31, 2017). Here, the ALJ’s
reasons for accepting Dr. Davis’s findings of slight limitations look a lot like her reasons for
rejecting her findings of moderate and marked limitations. The ALJ decided to give “significant
weight to Dr. Davis’s assessment of slight limitations … since her opinions are consistent with
the record as a whole, including the claimant’s treatment records, her mental health treatment,
and her daily activities. However, [she gave] little weight to Dr. Davis’ assessment of moderate
and marked limitations . . . as well as the GAF score of 41, since these opinions are not
consistent with the record as a whole, including the claimant’s lack of mental health treatment,
her treatment records, discussed above, and her daily activities.” AR at 24.
The Commissioner posits that these reasons were “valid . . . grounded in the regulations
and supported by Tenth Circuit case law.” Doc. 17 at 8. Again, the Court agrees that these
reasons are facially valid. See Harrold v. Berryhill, 2017 WL 4924662, at *5 (10th Cir. Oct. 31,
2017). However, as discussed above, current Tenth Circuit law requires more than a mere
recitation of the regulatory factors. Instead, an ALJ must provide an explanation for her
conclusions, Lewis v. Berryhill, 680 F. App’x 646 (10th Cir. Feb. 21, 2017); that is, unless there

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are “obvious inconsistencies” between Dr. Davis’ conclusions and the rest of the record. See
Harrold, 2017 WL 4924662, at *5.
The Commissioner points to what she believes to be obvious inconsistencies between Dr.
Davis’s opinions and Plaintiff’s treatment records. See Doc. 17 at 8 (citing AR at 314, 315, 317,
323, 327, 372, 425, 426). The Court has reviewed these records, however, and does not find
them to be inconsistent with Dr. Davis’s findings. For example, while Plaintiff was noted to be
“bright and alert” by Dr. Walsky on November 14, 2011, that may have been due to the Vimpat,
which had been prescribed at previous appointments to address Plaintiff’s loss of “cognition and
clarity of thought” and which was causing “side effects which are unacceptable.” AR at 317.
Plaintiff did notice some “immediate improvement” on Lexapro during January, 2012, in that
“her episodes of anxiety [had] reduced greatly,” but her insurance company demanded that she
not take Lexapro and she was transitioned off of that medication at the same visit. AR at 327,
426. Likewise, while Dr. Caruana noted that Plaintiff was “in good spirits” on February 8, 2012,
he nonetheless assessed depression and noted that Plaintiff was still feeling “off a bit,” and was
considering transferring to a different neurologist. AR at 323. On May 7, 2012, Dr. Walsky notes
that Plaintiff complaints were “mainly psychological” and she was complaining of “cognitive
difficulty, anxiety, depression, difficulty getting involved in productive activity, etc.” AR at 315,
426. On July 19, 2012, Dr. Walsky indicated that Plaintiff was “bright and alert” but still
assessed her with “psychiatric issues.” AR at 425. On October 19, 2012, Dr. Walsky notes that
Plaintiff is “clearly unhappy and feels very stressed,” further stating that while she is “bright and
alert” she is also “tearful.” AR at 314, 425. On September 18, 2013, Plaintiff’s chief complaint to
Dr. Lakind was “longstanding seizure disorder, depression, anxiety and other concerns” although

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she stated that she felt “okay” on that date. AR at 372. These records are not so inconsistent with
Dr. Davis’s assessment to warrant discounting it in their favor.
The only thing that the Commissioner points to that is even arguably inconsistent with
Dr. Davis’s opinion are Plaintiff’s scores on her cognitive testing, administered by Dr. Lakind on
September 4, 2013, which showed “significant improvement” in Plaintiff’s memory, executive
function, and attention. See Doc. 17 at 8 (citing AR at 372-3). However, Plaintiff, still scored
more than one standard deviation below average “[r]elative to a population matched for age and
education” in memory, attention, information processing speed, verbal function, and motor skills,
and she was slightly below average in executive function. AR at 373. Her overall global
cognitive score was more than one standard deviation below average at 78.3. Id. Moreover,
Plaintiff completed a depression scale, and “[a]ccording to standard cutoffs for this instrument,
[her] score [was] almost always consistent with depression[.]” Id. As to Plaintiff’s anxiety, Dr.
Lakind noted that her “level is within the mild to moderate range and should warrant a follow-up
interview.” Id. In sum, even if this Court were permitted to accept the Commissioner’s post hoc
rationale for why Dr. Davis’s opinions as to Plaintiff’s moderate and marked impairments were
entitled to little weight, which it is not, see Brownrigg v. Berryhill, 688 F. App’x 542, 549 (10th
Cir. April 19, 2017) (“the ALJ did himself did not make these observations or explicitly justify
the ‘little weight’ designation, and filling in the blanks is not permitted.”), there is no substantial
evidence supporting such a conclusion.
Rather, as Plaintiff’s chart in her brief illustrates well, the examining psychological
sources in this case, Drs. Madsen, Benes, and Davis, reached similar conclusions as to Plaintiff’s
diagnoses and abilities. Dr. Madsen, who was hired by the administration, concluded on June 20,
2012, that Plaintiff’s depression has impaired her ability to do work-related activities. AR at 312.

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Specifically, he noted that while her persistence in performing work-related tasks was adequate,
her pace was slow. AR at 311. He diagnosed her with Dysthymic Disorder, Cognitive Disorder
NOS, Post-Traumatic Stress Disorder and assigned a GAF of 50. AR at 311. Later, on January 7,
2013, Dr. Benes diagnosed Plaintiff with Major Depressive Disorder, Single Episode, Severe
with Psychotic Features, Post-Traumatic Stress Disorder, Chronic, Obsessive Compulsive
Disorder, Dissociative Disorder NOS, and a GAF of 45. Dr. Benes noted that Plaintiff’s “overall
psychomotor activity appeared slowed . . . [her] cognitive weakness was apparent in her thought
process. Her logical thinking was circumstantial, and she would often forget what she was
saying, however she would be able to remember her line of thinking without aid. . . . She
expressed little emotion and appeared depressed.” AR at 340.
Despite these records’ consistency, the ALJ gave Dr. Madsen’s GAF score (50) “little
weight, since it is not consistent with the record as a whole including the objective clinical
findings (including Dr. Madsen’s mental status examination), 6 the claimant’s mental health
treatment, and her daily activities.” AR at 21. Likewise, the ALJ gave Dr. Benes’s GAF score
(45) “little weight” “since it is not consistent with the record as a whole, including the objective
clinical findings, her treatment records, her mental health treatment and her daily activities.” AR
at 21. Finally, the ALJ gave “little weight” to Dr. Davis’s GAF score (41) and assessment of
moderate and marked limitations “since these opinions are not consistent with the record as a
whole, including the claimant’s lack of mental health treatment, her treatment records discussed
above, and her daily activities.” AR at 24.

6

This reason, like much of the ALJ’s rationale, does not appear to be supported by substantial evidence. See AR at
310 (While Plaintiff was “oriented to person, place, and time” and was “able to recall the year, the month, the day of
the month, the date of the week and the name of the president,” her “[a]ffect is blunted and consistent with a
depressed mood” her thought processes were “nonpsychotic, but slow . . . . [s]he tends to lose her focus and
concentration, spaces out at times.”).

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A pattern is emerging. The ALJ found all three examining doctor’s GAF scores to be
inconsistent with the record as a whole but failed to specify which parts, and these GAF scores
are entirely consistent. Thus, the ALJ’s conclusion is either speculative, or the ALJ
impermissibly picked and chose among Plaintiff’s medical records and the opinions of valid
medical sources under the guise of weighing their opinions in accord with the regulatory factors.
Either way, the ALJ’s reasoning does not stand up to scrutiny.
The question is whether the ALJ’s other reasons for according “little weight” to Dr.
Davis’s opinions were valid. First, she explained that Dr. Davis’s opinions were inconsistent
with Plaintiff’s daily activities. AR at 24. Second, she found that “Dr. Davis’s evaluation is
explicitly a ‘psychological evaluation for disability claim’ . . . [and] [a]s such, it is only a
snapshot of the claimant’s functioning on the date of the examination and it lacks the
longitudinal perspective of the claimant’s treating sources, discussed above.” AR at 24. While
the Court finds these reasons to be facially valid, they do not support the rejection of Dr. Davis’s
opinions.
As explained above, Plaintiff’s daily activities might support the inference that she is able
to perform some work; in fact, she is currently working part-time in a very supportive
environment. AR at 43. However, Dr. Davis did not opine that Plaintiff is completely disabled,
only that her abilities are moderately and markedly impaired in certain areas. If given greater
weight, her opinion might still result in a RFC finding that permits Plaintiff to perform unskilled
work. C.f. Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015). However, until this analysis is
undertaken in the first instance, Plaintiff’s daily activities are not alone enough to justify the
outright rejection of Dr. Davis’s findings.

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The ALJ’s second reason would have more weight if Dr. Davis’s opinions were truly
inconsistent with the record from Plaintiff’s treating sources. However, as discussed above, that
conclusion is unsupported by substantial evidence. And, more importantly, the Tenth Circuit has
cautioned against this type of reasoning as applied to examining sources in recent cases. See
Kellams v. Berryhill, 696 F. App’x 909, 917 (10th Cir. 2017) (“The ALJ gave the report little
weight, in part, because Dr. Borja examined Mr. Kellams only once. This rationale may justify
refusing to give Dr. Borja the status of a treating physician and according her opinion controlling
weight, but as an examining source her opinion still was entitled to particular consideration.
Indeed, ‘an examining medical-source opinion is, as such, ... presumptively entitled to more
weight than a doctor's opinion derived from a review of the medical record.’”); Quintero v.
Colvin, 642 F. App’x 793, 797 (10th Cir. 2016) (unpublished) (“More than 13 years ago, this
court held in McGoffin that a physician’s advocacy posture is an insufficient reason to reject a
medical opinion.”); Crowder v. Colvin, 561 F. App’x 740, 743 (10th Cir. 2014) (unpublished)
(rejecting the reasoning that a medical opinion is “less trustworthy when it is sought or obtained
by the claimant” and stating that “[a]lthough the lack of a treating relationship is relevant to the
weight to be afforded an opinion, it is not grounds for simply rejecting an opinion.”); Chapo v.
Astrue, 682 F.3d 1285 (10th Cir. 2012) (“The Commissioner has not cited a single authority for
the facially dubious proposition that the opinion of an examining medical source is, as such,
dismissible.”). The Commissioner effectively concedes this point, as she does not address it in
her response brief. See Doc. 17.
The ALJ discounted Dr. Davis’s opinions on the basis that they were inconsistent with
the record as a whole, Plaintiff’s lack of mental health treatment, her treatment records and her
daily activities. While these reasons are facially valid, the ALJ failed to specify which records

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challenged Dr. Davis’s conclusions (and the Court has found no obvious inconsistencies), and
the ALJ does not explain how Plaintiff’s “lack of treatment” or daily activities conflict with Dr.
Davis’s findings. As such, the ALJ failed to apply the correct legal standards to Dr. Davis’s
opinion, and her findings are unsupported by substantial evidence. Therefore, the Court will
reverse the ALJ’s finding of nondisability and remand this case for proper evaluation of the
examining psychiatrists’ opinions.
V.

Conclusion
To summarize, the Court will not reverse the ALJ for according “little weight” to Dr.

Walsky’s opinions that Plaintiff cannot work. While the ALJ arguably erred by failing to follow
the two-steps of the treating physician analysis, the Court can tell that she declined to give the
opinions controlling weight and she provided at least one valid reason for rejecting Dr. Walsky’s
conclusion that Plaintiff is unable to work in any capacity. However, that same rationale does not
support rejecting Dr. Davis’s opinions, which do not necessarily preclude her from working. To
the extent that Plaintiff raises further claims of error, the Court will not address them at this time
“because they may be affected by the ALJ’s treatment of this case on remand.” Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum (Doc. 16) is granted. This case is remanded to the
Commissioner for further proceedings consistent with this opinion.

_______________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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