Montano v. Social Security Administration

Filing 24

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen denying 18 Plaintiff's MOTION to Remand to Agency. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NIKKI MONTANO,
Plaintiff,
v.

CIV 16-0977 KBM

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

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand
for a Rehearing with Supporting Memorandum (Doc. 18) filed on April 7, 2017. Pursuant
to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to me
serving as the presiding judge and entering final judgment. See Docs. 4, 7, 8. Having
considered the record, submissions of counsel, and relevant law, the Court finds
Plaintiff’s motion is not well-taken and will be denied.
I.

Procedural History
On November 19, 2012, Ms. Nikki Montano (Plaintiff) protectively filed an

application with the Social Security Administration for Supplemental Security Income
(SSI) under Title XVI of the Social Security Act. Administrative Record1 (AR) at 32, 83,
199. Plaintiff alleged a disability onset date of January 1, 2004. AR at 32, 199. Disability
Determination Services (DDS) determined that Plaintiff was not disabled both initially
1

Document 12-1 contains the sealed Administrative Record. See Doc. 12-1. The Court cites the
Administrative Record’s internal pagination, rather than the CM/ECF document number and
page.

(AR at 83-97) and on reconsideration (AR at 98-114). Plaintiff requested a hearing with
an Administrative Law Judge (ALJ) on the merits of her SSI application. AR at 133-35.
Both Plaintiff and a vocational expert (VE) testified during the de novo hearing.
See AR at 58-82. ALJ Barry O’Melinn issued an unfavorable decision on March 4, 2015.
AR at 29-57. Plaintiff submitted a Request for Review of Hearing Decision/Order to the
Appeals Council (AR at 27-28), which the council denied on June 29, 2016 (AR at 1-6).
Consequently, the ALJ’s decision became the final decision of the Commissioner. Doyal
v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
II.

Applicable Law and the ALJ’s Findings
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); see also 20 C.F.R. § 416.905(a). The Commissioner must use a
five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The claimant has the burden at the first four steps of the process to show: (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 (3) her impairment(s) meet or equal one of
the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant’s residual functional capacity (RFC), she is unable to
perform her past relevant work. 20 C.F.R § 416.920(a)(4)(i-iv); see also Grogan v.

2

Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a
multidimensional description of the work-related abilities [a claimant] retain[s] in spite of
her medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20
C.F.R. § 416.945(a)(1). If the claimant meets “the burden of establishing a prima facie
case of disability[,] . . . the burden of proof shifts to the Commissioner at step five to
show that the claimant retains sufficient . . . RFC to perform work in the national
economy, given [her] age, education, and work experience.” Grogan, 399 F.3d at 1261
(citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation
omitted)); see also 20 C.F.R. § 416.920(a)(4)(v).
At Step One of the process, ALJ O’Melinn found that Plaintiff “has not engaged in
substantial gainful activity since November 19, 2012, the application date . . . .” AR at 34
(citing 20 C.F.R. § 416.971). At Step Two, the ALJ concluded that Plaintiff “has the
following severe impairments: degenerative disc disease (DDD), obesity, history of
bilateral carpal tunnel syndrome (CTS), tennis elbow, knee disorder, anxiety,
depression and borderline intellectual functioning (BIF) . . . .” AR at 34 (citing 20 C.F.R.
§ 416.920(c)). The ALJ noted that Plaintiff’s “impairments are severe, in combination if
not singly, . . . in that [she] is significantly affected in the ability to perform basic work
activities . . . .” AR at 34 (citing 20 C.F.R. §§ 416.920(c), 416.921(b)).
At Step Three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 . . . .” AR at 34 (citing
20 C.F.R. §§ 416.920(d), 416.925, 416.926). In making his determination, ALJ O’Melinn
considered whether Plaintiff’s mental impairments met the “paragraph B” criteria. AR at

3

35-36. The ALJ found that Plaintiff has mild restrictions in her activities of daily living
(AR at 36 – noting Plaintiff takes care of her four-year-old son, takes him to bus stop for
school, prepares her own meals and household chores, uses public transportation, goes
out alone, shops in stores for food, clothes, etc., pays bills and counts change, watches
TV and reads) (citing AR at 227-30); moderate difficulties in the area of social
functioning (AR at 36 – noting that Plaintiff reported “a fear of being in a crowd and that
if she was with more than four people, she would have a panic attack and she would
start to hyperventilate”) (citing AR at 382), and she is afraid she will pass out and will
have to flee crowds; moderate difficulties in the area of concentration, persistence or
pace (AR at 36 – noting Plaintiff reported that she needs help with instructions due to
depression and anxiety, can follow spoken instructions well, can pay attention for 20
minutes, and was only able to repeat one of three words at her consultative
examination) (citing AR at 231, 383); and Plaintiff has experienced no episodes of
decompensation of extended duration (AR at 36). Because the ALJ did not find that
Plaintiff has at least two “marked” limitations or one “marked” limitation and “repeated”
episodes of decompensation, he determined that her mental impairments did not satisfy
the “paragraph B” criteria (or the “paragraph D” criteria of listing 12.05). The ALJ also
determined that Plaintiff did not meet the “paragraph C” criteria of 12.04 or 12.06. AR at
37. Finally, the ALJ determined that Plaintiff did not meet the “paragraph A,” “paragraph
B,” or “paragraph C” criteria of 12.05. AR at 37 (citing AR at 226-27, 387).
At Step Four, the ALJ found that while Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms[,] . . .
[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these

4

symptoms are not entirely credible . . . .” AR at 39. The ALJ thoroughly considered the
evidence of record as well as the opinions of Plaintiff’s treating counselor, the
consultative psychologists and physicians, a nurse practitioner, and Plaintiff’s friend,
Debbie Rael. AR at 38-50. Ultimately, the ALJ found that Plaintiff
has the residual functional capacity to perform sedentary work as defined
in 20 [C.F.R. §] 416.967(a)[,] except occasionally lift and/or carry up to ten
pounds and frequently lift and/or carry less than ten pounds; stand and/or
walk with normal breaks for a total of two hours in an eight hour workday;
sit with normal breaks for a total of six hours in an eight hour workday;
occasionally climb ramps or stairs, but never climb ropes, ladders or
scaffolds; occasionally balance with the use of a handheld assistive
device; can occasionally stoop, kneel, crouch, or crawl; she is limited to
frequent reaching, handling and fingering, bilaterally; she is to avoid
concentrated exposure to operational control of moving machinery and
unprotected heights and hazardous machinery; the claimant can
understand, carry out and remember simple instructions and make
commensurate work related decisions; respond appropriately to
supervision, coworkers and work situations; deal with routine changes in
work setting; maintain concentration, persistence and pace for up to and
including two hours at a time with normal breaks throughout the work day;
work limited to simple, routine and repetitive tasks; suitable for jobs
involving work primarily with things and not people.
AR at 37-38.
ALJ O’Melinn concluded that Plaintiff has no past relevant work (AR at 50 (citing
20 C.F.R. § 416.965)), but she is able to perform work as a Dowel Inspector, Nut Sorter,
and Laminator. AR at 51. The ALJ ultimately determined that Plaintiff “has not been
under a disability, as defined in the Social Security Act, since November 19, 2012 . . . .”
AR at 51 (citing 20 C.F.R. § 416.920(g)).
III.

Legal Standard
The Court must “review the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence in the record and whether the

5

correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal
quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id.
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation
omitted) (alteration in original)). The Court will “consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of evidence in
disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the
Commissioner’s.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and
quotations omitted)).
“The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The
Court “may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even
though the court would justifiably have made a different choice had the matter been
before it de novo.’” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).
IV.

Discussion
Plaintiff asserts three issues in her Motion. First, Plaintiff argues that the ALJ

“failed to give proper reasons for rejecting the opinion of treating therapist Paul Weeks”
who is a Licensed Professional Clinical Counselor (LPCC). Doc. 18 at 1. Second,

6

Plaintiff contends that the ALJ “erred by failing to account for all of the moderate
[l]imitations found by 96-6p non-examining psychologist Donald Gucker, Ph.D. . . .” Id.
Third, Plaintiff alleges that “the Appeals Council failed to analyze the opinion of treating
therapist Paul Weeks, LPCC whose opinion undercuts ALJ O’Melinn’s RFC
determination.” Id. at 1-2.
A.

The ALJ adequately examined LPCC Weeks’ opinion.

Plaintiff contends the ALJ’s “reasons for rejecting LPCC Weeks’ opinions are
facially dubious and too vague.” Doc. 18 at 18. Plaintiff argues it was error for ALJ
O’Melinn to discount LPCC Weeks’ opinion because he was an “other source.” Id. at 1920. She also asserts that the ALJ’s failure to specifically identify any alleged
inconsistencies between LPCC Weeks’ opinions and Plaintiff’s testimony is error. Id. at
20-21.
The record establishes that Plaintiff received individual counseling at Valle del
Sol (previously named Valencia Counseling Services) beginning in August 2011. See
AR at 367. On July 11, 2014, LPCC Weeks reported that he had seen Plaintiff for
weekly individual therapy for about three years. AR at 715. Relevant to Plaintiff’s
counseling with LPCC Weeks, the record that ALJ O’Melinn examined2 contains eight
“Treatment Plans,”3 two “Assessment Updates,”4 two “Clinical Assessments,”5 one

2

As discussed in Section IV(C), Plaintiff submitted several more records to the Appeals Council
after ALJ O’Melinn’s decision.
3

The Treatment Plans are for the periods of February 22 through May 22, 2012 (AR at 367-69),
May 23 through August 21, 2012 (AR at 370-72), August 22 through November 20, 2012 (AR at
373-75), November 21, 2012 through February 19, 2013 (AR at 376-78), February 20 through
May 21, 2013 (AR at 436-38), May 22 through August 20, 2013 (AR at 439-41), May 15, 2014
(AR at 830-32, 859-61), and September 25, 2014 (AR at 827-29, 863-65).

7

“Diagnosis Review,”6 one “Individual Service Plan,”7 and one “Medical Opinion
Questionnaire (Mental Impairments).”8
ALJ O’Melinn summarized several of LPCC Weeks’ treatment notes and the
Medical Opinion Questionnaire (Mental Impairments). The ALJ noted that during an
April 18, 2013 Assessment Update, LPCC Weeks
noted and observed that [Plaintiff’s] appearance was unkempt and her
posture was slumped. Her attitude was cooperative and her behavior was
agitated. Her speech was rapid and slow. Her mood was euthymic and her
affect was anxious. Her thought content was unremarkable and her
thought processes were organized, rationale [sic], and concrete. Her
recent and remote memories were intact and she was oriented to date,
person, place and situation. Her attention was low and her insight and
judgment were poor. Mr. Weeks noted that [Plaintiff] was stable and sober
for over one year. She had quit smoking four months ago and her
memories were returning. She had quit smoking but was presently gaining
weight.

4

The “Assessment Updates” from Valencia Counseling Services, dated October 16, 2012, and
April 18, 2013, are essentially fill-in-the-blank forms, with a multiple choice section for the
counselor to provide an update on the client’s “Life Domains Score” (i.e., whether the
Psychiatric, Medical, Interpersonal, Financial, etc. is Significantly Improved, Improved,
Unchanged, Worsened, or Significantly Worsened), checkbox sections for a “Mental Status
Exam” and “Legal and Substance Abuse” (i.e., to assess Appearance, Posture, Attitude, Mood,
Thought Content, Memory, etc.), and a scoring section for “severity ratings” and “ASI Composite
Scores.” AR at 357-60, 428-31.
5

The “Clinical Assessments” from Valle del Sol, dated October 16, 2013, and April 29, 2014,
are also fill-in-the-blank forms, but they provide more space for the counselor to write, rather
than simply check boxes or select from multiple choice options. AR at 808-16, 817-26, 883-90.
6

The Diagnosis Review, dated May 24, 2013, lists Plaintiff’s “presenting problem” (anxiety) and
allows the counselor to summarize symptoms, issues, and other relevant factors for each of the
diagnostic axes. AR at 434-35.
7

The Individual Service Plan, dated October 16, 2013, identifies patient objectives, needs, etc.
AR at 833-34.
8

The Medical Opinion Questionnaire allowed LPCC Weeks to list the “[n]ature, frequency and
length of [his] contact” with Plaintiff, her diagnoses and prognosis, followed by a multiple choice
form on which he marked “unlimited or very good,” “good,” “fair,” or “poor or none” for 25
different skills. AR at 715-17.

8

AR at 40 (citing AR at 428-29). The Court notes that LPCC Weeks’ April 18, 2013
observations and notes are almost identical to those he made on October 16, 2012.
Compare AR at 357-58, with AR at 428-29.
The ALJ discussed a May 24, 2013 Diagnosis Review that Mr. Weeks had
completed. AR at 41 (citing AR at 434-35). LPCC Weeks noted that Plaintiff’s
presenting problem was anxiety, and her symptoms included “sudden attacks of
anxiety, difficulty breathing, rapid heartbeat, racing thoughts[, and] lack of focus.” AR at
41 (citing AR at 434). Plaintiff’s diagnosis is Generalized Anxiety Disorder. AR at 41
(citing AR at 434). LPCC Weeks “noted that [Plaintiff] had no income but she was
working to get her GED. . . . [Plaintiff] was friendly and articulate and she worried that
she was going crazy, but she was not.” AR at 41 (citing AR at 434-35). Mr. Weeks
determined that the claimant had a Global Assessment of Functioning (GAF) score of
70. . . .”9 AR at 41 (citing AR at 434).
ALJ O’Melinn detailed LPCC Weeks’ April 29, 2014 Clinical Assessment of
Plaintiff. AR at 43. LPCC Weeks “noted [Plaintiff] had been a long time heroin user but
she had been sober for 14 years, she also had been sober from alcohol for 9 months.
She had quit smoking two years ago.” AR at 43 (citing AR at 808). Plaintiff, who
“struggle[s] with depression, anxiety and anger issues[,]” has eight children, but only her
youngest lives with her. AR at 43 (citing AR at 808).
Mr. Weeks noted and observed that [Plaintiff] appeared disheveled and
she had on casual attire. Her behavior was within normal limits and she
had adequate speech. Her mood was euthymic and her affect was
9

A GAF “score of 70 indicates some mild symptoms or some difficulty in social, occupation[al]
or school functioning, but generally functioning pretty well, has some meaningful interpersonal
relationships . . . .” AR at 41 (citing Diagnostic and Statistical Manual of Mental Disorders (DSMIV) 34 (4th ed. 2000)).

9

appropriate. Her thought processes were logical and her thought content
was normal. Her concentration was good and insight and judgment were
fair. [Plaintiff] was diagnosed with bipolar 1 disorder, most recent episode
depressed moderate worse.
AR at 43 (citing AR at 814). LPCC Weeks assessed Plaintiff’s GAF score at a 55, which
“indicates moderate symptoms or moderate difficulty in social, occupation[al] or school
functioning. AR at 43 (citing DSM-IV 34). Mr. Weeks also “noted that [Plaintiff]
responded well to her medications.” AR at 43; see also AR at 815.
Finally, the ALJ detailed LPCC Weeks’ opinions contained in the July 11, 2014
Medical Opinion Questionnaire (Mental Impairments). AR at 47-48 (citing AR at 71517). The ALJ noted that Mr. Weeks had been seeing Plaintiff “for about three years for
therapy and medication management, and presently he was doing weekly individual
therapy . . . .” AR at 47 (citing AR at 715). LPCC Weeks “noted that [Plaintiff] had been
diagnosed with bipolar 1 disorder, most recent episode depressed[,]” but she “was
making good progress with her prognosis.” AR at 48 (citing AR at 715). Mr. Weeks
assessed Plaintiff’s “mental abilities and aptitude needed to do any job.” AR at 715-17
(capitalization omitted). The questionnaire lists 25 skills with a ranking system of
“unlimited or very good,” “good,” “fair,” or “poor or none.” AR at 715-17. Mr. Weeks
ranked Plaintiff on the bottom two levels – “fair” or “poor or none” – for all 25 skills. AR
at 715-17. The ALJ commented on several of these:
Mr. Weeks noted that [Plaintiff’s] ability to interact appropriately with the
general public was fair to poor and that her ability to remember work-like
procedures was poor. He further determined that [Plaintiff’s] ability to
understand and remember very short and simple instructions was poor or
none and her ability to carry out very short and simple instructions was
poor or none. Her ability to sustain an ordinary routine without special
supervision was poor or none and her ability to ask simple questions or
request assistance was fair.

10

AR at 48 (citing AR at 715-17). ALJ O’Melinn also focused on Mr. Weeks’ opinions that
Plaintiff “had made good progress toward her treatment goals” but “continued to have
difficulty with her attention and managing her anxiety and depression.” AR at 48 (citing
AR at 717). Mr. Weeks also opined that Plaintiff would miss more than two days of work
per month. AR at 717.
The ALJ gave “little weight” to LPCC Weeks’ opinion. AR at 47. He found that
while “Mr. Weeks has a longitudinal history with [Plaintiff], under [SSR] 06-03p, a
counselor is not considered an ‘acceptable’ medical source . . . .”AR at 48; see also
Soc. Sec. Ruling, SSR 06-03p, Titles II and XVI: II and XVI: Considering Opinions and
Other Evidence from Sources who are not ‘Acceptable Medical Sources’ in Disability
Claims, 2006 WL 2329939 (Aug. 9, 2006). The ALJ further found that Mr. Weeks’
“report appears to contain inconsistencies with [Plaintiff’s] testimony, and therefore his
opinion is rendered less persuasive and given little weight.” AR at 48; see also SSR 0603p, 2006 WL 2329939, at *2.
Plaintiff has two broad complaints about how ALJ O’Melinn assessed Mr. Weeks’
testimony. First, Plaintiff argues it was error for the ALJ to discount LPCC Weeks’
opinion simply because he was an “other source.” Doc. 18 at 18-20. Plaintiff points out
that an “other source” opinion may be entitled to more weight than an “acceptable
medical source” regarding the severity and degree of a claimant’s limitations. Id. at 19
(citing 20 C.F.R. § 416.913(a); Frantz v. Astrue, 509 F.3d 1299, 1301-02 (10th Cir.
2007); SSR 06-03p, 2006 WL 2329939).

11

In Frantz, the plaintiff had received treatment for bipolar disorder, anxiety, and
migraine headaches. 509 F.3d at 1300. The plaintiff “never had a treating physician[,]”
rather, “a large part of her medical history [was] comprised of reports from . . . a clinical
nurse specialist (CNS)[,]” which is not an “acceptable medical source” under SSR 0603p. Id. at 1300-01. The ALJ in Frantz disregarded the CNS’s “medical opinion in favor
of opinions from two examining physicians who each saw [the plaintiff] only once and
who each considered a particular aspect of [her] condition and found her to be capable
of work, despite not having considered all of her impairments in combination.” Id. at
1301. The Tenth Circuit reversed, noting that the ALJ referred to some of the CNS’s
treatment notes “but did not discuss what weight he gave to her opinion on the severity
of [the plaintiff’s] limitations and on the functional effect those limitations have on her
overall ability to work.” Id. at 1302. The ALJ also “ignored evidence from [the CNS] that
would support a finding of disability while highlighting evidence favorable to the finding
of nondisability.” Id. The Tenth Circuit reiterated that an ALJ must discuss both the
evidence that supports his decision, as well as the “uncontroverted evidence he
chooses not to rely upon [and the] significantly probative evidence he rejects.” Id.
(quoting Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (internal citations
omitted)).
The facts in Frantz are distinguishable from those here. First, ALJ O’Melinn did
not fail to assign a weight to LPCC Weeks’ opinion; he gave it little weight and he
discussed his reasoning. AR at 47-48. Nor did the ALJ ignore evidence from LPCC
Weeks that supported a finding of disability – he detailed several of the counselor’s

12

records and his opinions on the Medical Questionnaire in depth, including those that
supported a finding of disability. AR at 40-48.
Moreover, the Court finds ALJ O’Melinn satisfactorily (albeit somewhat minimally)
addressed the factors ALJs are to consider when weighing “other source” opinions:
Opinion evidence from “other sources” is evaluated using the factors
outlined in 20 C.F.R. § 416.927(d), as explained in further detail in [SSR]
06-03p . . . . These factors include:
[1.] How long the source has known and how frequently the source has
seen the individual;
[2.] How consistent the opinion is with other evidence;
[3.] The degree to which the source presents relevant evidence to support
an opinion;
[4.] How well the source explains the opinion;
[5.] Whether the source has a specialty or area of expertise related to the
individual’s impairment(s); and
[6.] Any other factors that tend to support or refute the opinion.
Knight v. Astrue, 388 F. App’x 768, 772 (10th Cir. 2010) (quoting SSR 06-03p, 2006 WL
2329939, at *4-5).
With respect to the first and fifth factors, the ALJ noted that Plaintiff had been
seeing Mr. Weeks, a Licensed Professional Clinical Counselor, weekly for individualized
therapy and medication management. AR at 47 (citing AR at 715). Regarding the third
and fourth factors, the ALJ detailed several of Mr. Weeks’ assessment reports as well
as his Medical Questionnaire. AR at 40-48. The Court finds it worth mentioning that the
record treatment notes and assessments from LPCC Weeks are somewhat lacking in
substance – they are largely comprised of fill-in-the-blank type forms with more boxes
checked than original notes and observations recorded. See, e.g., infra at nn. 3-8. With
respect to the second factor, the ALJ noted that Mr. Weeks’ report was inconsistent with

13

Plaintiff’s testimony. AR at 48. In sum, the ALJ’s treatment of LPCC Weeks’ opinion was
adequate.
Plaintiff also argues that the Court should remand because ALJ O’Melinn failed
to specify how LPCC Weeks’ opinion was inconsistent with Plaintiff’s testimony. As the
Commissioner notes in her Response, Plaintiff’s “testimony” includes more than what
she said at the hearing, it also includes her own self-reports. Doc. 19 at 8. The ALJ
considered Plaintiff’s self-reports in his analysis. See AR at 36-39 (citing AR at 226-31).
Although ALJ O’Melinn did not outline those inconsistencies in the same paragraph as
his finding on LPCC Weeks’ opinion, they are apparent throughout his thorough
recitation of the evidence. AR at 40-48.
For example, LPCC Weeks’ opinion that Plaintiff had “poor or no” ability to “carry
out very short and simple instructions” or “remember work-like procedures” (AR at 716)
is inconsistent with Plaintiff’s report that she obtained a driver’s license and can take
care of her son, her own basic daily needs, and her bills (see AR at 39, 69-70, 226-31).
Moreover, when given the opportunity on her Function Report to note that her illnesses
or conditions affect her abilities to complete tasks, understand, or follow instructions,
Plaintiff specifically chose not to mark those abilities as things affected by her
conditions. AR at 231. LPCC Weeks also marked that Plaintiff has a fair or poor ability
to interact appropriately with the general public and a fair ability to maintain socially
appropriate behavior. AR at 715. Contrary to this opinion, Plaintiff did not note on her
Function Report that her illnesses or conditions affect her ability to get along with
others, and she specifically selected the option to establish that she does not have
problems getting along with family, friends, neighbors, or others. AR at 231. It is

14

interesting that LPCC Weeks also noted Plaintiff has “normal social interactions” during
an April 29, 2014 visit. AR at 810. In summary, the Court finds that the ALJ adequately
detailed how LPCC Weeks’ opinion was inconsistent with Plaintiff’s testimony. The
Court will deny Plaintiff’s Motion on this issue.
B.

The ALJ adequately accounted for all of Dr. Gucker’s moderate
limitations in the RFC.

Plaintiff next argues the ALJ did not account for eight moderate limitations that
Dr. Gucker, a DDS non-examining psychologist, attributed to Plaintiff. Doc. 18 at 22-23.
Plaintiff also contends that there is no basis in the record for “Dr. Gucker’s opinion that
Ms. Montano retained the ability to perform simple, repetitive tasks when she is
compliant with treatment and medication.” Id. at 23.
On April 25, 2013, Dr. Gucker completed a Psychiatric Review Technique (PRT)
and a Mental Residual Functional Capacity (MRFC) Assessment and ultimately
determined that Plaintiff “was ‘not disabled’ and could work at the sedentary exertional
level.” See AR at 47 (citing AR at 96-97). ALJ O’Melinn gave “great weight” to Dr.
Gucker’s opinion. AR at 47.
As described in authority from this district and the Tenth Circuit, the MRFC
Assessment has two relevant sections: in the first section (Section One), the author is
instructed to answer a series of questions to “help determine the individual’s ability to
perform sustained work activities.” See AR at 93. The author then rates the level of
each limitation. See AR at 93-95. In the third section (Section Three), the author is
instructed to provide a narrative explanation of the limitations indicated. See AR at 9395. The form explains that “the actual mental residual functional capacity assessment is

15

recorded in the narrative discussion(s), which describes how the evidence supports
each conclusion.” AR at 93.
In Plaintiff’s case, Dr. Gucker found in Section One that Plaintiff had moderate
limitations in nine different abilities. AR at 93-95. Plaintiff contends that the ALJ failed to
account for eight of those nine abilities:
-

-

understand and remember detailed instructions;
maintain attention and concentration for extended periods;
perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances;
complete a normal workday and workweek without interruptions from
psychologically based symptoms and . . . perform at a consistent pace
without an unreasonable number and length of rest periods;
accept instructions and respond appropriately to criticism from supervisors;
get along with coworkers or peers without distracting them or exhibiting
behavioral extremes;
respond appropriately to changes in the work setting; and
set realistic goals or make plans independently of others.

AR at 93-95. Plaintiff argues that this failure constitutes reversible error. Doc. 18 at 2224.
It is true that an ALJ errs where he “accept[s] some of the moderate limitations in
the Mental RFC form completed by . . . a nonexamining physician, but reject[s] others
without discussion.” Frantz, 509 F.3d at 1302-03. The Tenth Circuit has clarified,
however, that the Section One limitations “serve[] only as an aid to [the] assessment of
the [RFC].” Smith v. Colvin, 821 F.3d 1264, 1269 n.2 (10th Cir. 2016). The Tenth Circuit
instructs courts to compare the ALJ’s RFC findings to the psychologist’s MRFC
narrative, not to the “notations of moderate limitations.” Id.
In Section Three, the MRFC narrative, Dr. Gucker explained, “[r]egarding mental
issues only, the claimant when [therapy] and medication compliant, retains the ability to

16

perform simple, repetitive tasks in spite of the moderate limitations noted above.” AR at
95. Dr. Gucker also directed the reader to see his “extensive case discussion in [the]
PRT.” AR at 93-95. In the PRT, Dr. Gucker determined Plaintiff “was mildly limited in her
activities of daily living and social functioning and . . . moderately limited in maintaining
her concentration, persistence or pace.” AR at 47 (citing AR at 89).
In the “Additional Explanation” section, Dr. Gucker detailed the record evidence
he considered in completing the forms. AR at 89-90. The records included:
(1) an April 16, 2013 Consultative Examination Report and Wechsler Adult
Intelligence Scale - Fourth Edition (WAIS-IV) with N. Phoenix Anderson, Ph.D. AR at
90, 386-88.
[Dr. Anderson] reported that from a cognitive standpoint[,] work-related
abilities are defined as:
no issues with understanding and remembering simple instructions, no
issues with carrying out simple instructions, no issues in the ability to
make judgments on simple work related decisions, and a moderate level
of functional impairment in regard to understanding and remembering
complex instructions, carry out complex instructions, and the ability to
make judgments on complex work related decisions. No functional
impairments were noted with regard to capability for interaction with the
general public, interaction appropriately with supervisors, and interaction
appropriately with coworkers. Moderate functional impairments were noted
in terms of responding appropriately to usual work-related situations and
to changes in a routine work setting.
AR at 90; see also AR at 386-88.
(2) a March 19, 2013 Consultative Examination Report with Finian J. Murphy, Ed.
D. AR at 90, 380-83. Dr. Gucker noted that some of Dr. Murphy’s conclusions (i.e.,
regarding marked limitations to carry out instructions and concentrate and persist at
tasks) are “not supported by the current WAIS-IV data and [Dr. Anderson’s] conclusions

17

. . . .” AR at 90. Dr. Gucker also noted that, in contrast to Dr. Murphy’s findings, one of
Plaintiff’s WAIS-IV scores reflected a “capability for abstract reasoning.” AR at 90.
(3) an October 16, 2012 Assessment Update from LPCC Weeks. AR at 90, 35759. Mr. Weeks’ check-the-box examination revealed that Plaintiff was “cooperative,
rapid speech, mood euthymic, affect anxious, thought content unremarkable, thought
process organized, memory intact, full orientation, attention low, insight poor.” AR at 90,
358. Dr. Gucker noted that Mr. Weeks is a “nonacceptable source.” AR at 90.
(4) an October 19, 2012 treatment note from Lyn Dawson, CNP, at ABQ Health
Partners, who saw Plaintiff for complaints of pain and noted, “psychological: no mood
changes specified.” AR at 90, 275-76 (capitalization omitted).
(5) Dr. Gucker’s observation that there is no evidence Plaintiff has had inpatient
mental treatment. AR at 90.
(6) a January 21, 2013 Third Party Function Report from Plaintiff’s friend, Debbie
Rael. AR at 90, 215-22. Dr. Gucker observed that Plaintiff’s personal care limitations
appear to be physically-based and noted Ms. Rael’s statement that Plaintiff’s pain
causes depression. AR at 90, 217. Dr. Gucker listed the following from Ms. Rael’s
report: “Prepares simple meals, does light cleaning, limited by pain . . . , uses public
transportation, denies driving, shops in stores, and manages money. Watches TV and
reads.” AR at 90, 217-19. Plaintiff visits with friends and family who check on her in her
home on a daily basis. AR at 90, 219. “Does not need reminders to go places. In section
C [Ms. Rael] only endorses concentration in terms of mental limitations” due to
depression and anxiety. AR at 90, 220. Dr. Gucker states that the WAIS-IV “data
suggest a moderate degree of limitation at most in terms of concentration.” AR at 90.

18

Dr. Gucker’s narrative explanation sheds light on his list of moderate limitations.
He explained that the evidence warrants a moderate limit “at most in terms of
concentration” and tempered his list of moderate restrictions on social functioning by
noting Dr. Anderson’s finding of “[n]o functional impairments . . . with regard to capability
for interaction with the general public, [and] interaction appropriately with supervisors”
and coworkers. AR at 90 (emphasis added).
The Court finds that the ALJ’s RFC findings adequately capture Dr. Gucker’s
moderate limitations as expressed in the narrative portion of the form. While ALJ
O’Melinn did not repeat Dr. Gucker’s Section One moderate limitations verbatim, the
RFC limitations incorporate those limits. Specifically, the ALJ’s recognition that Plaintiff
may “understand, carry out and remember simple instructions and make commensurate
work related decisions[,]” “deal with routine changes in [a] work setting[,]” and is “limited
to simple, routine and repetitive tasks” incorporates Dr. Gucker’s limitations related to
Plaintiff’s abilities regarding understanding detailed instructions, responding
appropriately to changes, and setting realistic goals or independently planning. AR at
38, 93-95. See also Smith, 821 F.3d at 1268-69 (noting that the ALJ’s assessment that
plaintiff “could not engage in face-to-face contact with the public and . . . only [in] simple,
repetitive, and routine tasks” adequately accounted for the consultative examiner’s
finding of moderate limitations in, among other areas, the plaintiff’s ability to “respond
appropriately to changes in the workplace, and set realistic goals or independently
plan”). The ALJ’s findings related to simple tasks, as well as his finding that Plaintiff may
“maintain concentration, persistence and pace for up to and including two hours at a
time with normal breaks throughout the work day” accounts for Dr. Gucker’s limits

19

related to Plaintiff’s abilities to maintain attention for extended periods, perform activities
within a schedule, maintain regular attendance and be punctual, and complete a normal
workday and workweek. AR at 38, 93-95. Moreover, these findings reflect Dr. Gucker’s
narrative explanation related to Plaintiff’s ability to perform daily activities and her
moderate limitation at most in terms of concentration. AR at 90. This is also in line with
the Tenth Circuit’s finding in Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015), that
“an RFC limiting the claimant to unskilled work adequately addressed the claimant’s
moderate problems with concentration, persistence, and pace.” See Shelton v. Colvin,
663 F. App’x 690, 695 (10th Cir. 2016) (discussing Vigil and citing Smith, 821 F.3d at
1268-69, for the proposition that a “psychologist’s notations of moderate limitations
serve only as an aid to the ALJ’s RFC assessment”).
Finally, the ALJ’s finding that Plaintiff may “respond appropriately to supervision,
coworkers and work situations” and is “suitable for jobs involving work primarily with
things and not people” adequately reflects Dr. Gucker’s limits, as well as his narrative
notes that Dr. Anderson found “[n]o functional impairments” related to Plaintiff’s
“capability for interaction with the general public, . . . supervisors, . . . [and] coworkers.”
AR at 38, 90, 93-95. Plaintiff “has not pointed to any evidence, nor can the Court find
any, that the ALJ rejected” any of Dr. Gucker’s moderate limitations as explained in the
narrative section. See Herrera v. Berryhill, CIV 16-0824 KK, 2017 WL 4155348, at *11
(D.N.M. Sept. 14, 2017) (discussing Smith).

20

In summary, ALJ O’Melinn adequately accounted for the moderate limitations in
Section One of the MRFC Assessment.10 This finding is bolstered by Dr. Gucker’s own
narrative explanation, noting that Plaintiff “retains the ability to perform simple, repetitive
tasks in spite of the moderate limitations noted above.”11 AR at 95. See Paulsen v.
Colvin, 665 F. App’x 660, 666-67 (10th Cir. 2016) (finding “there was no need for the
ALJ to repeat the moderate limitations assessed by the [consultative examiner] because
the effects of the limitations were explained in [the] narrative, which limited [the plaintiff]
to unskilled work with limited social interactions”).
Plaintiff makes a very brief argument regarding Dr. Gucker’s opinion that Plaintiff
“retain[s] the ability to perform simple, repetitive tasks when she is compliant with
treatment and medication.” Doc. 18 at 23 (citing AR at 47, 95). Plaintiff alleges that
“[t]his conclusion has no basis in the record of evidence and appears to be based on
speculation.” Id. The Court finds that substantial record evidence supports this finding.
For example, Mr. Weeks noted in April 2014 that Plaintiff “responds well to medications”
(AR at 815), and Plaintiff reported at the hearing that medications do help her “some”
(AR at 75). More importantly, the Court finds that the ALJ’s RFC finding is supported by
substantial evidence. Plaintiff’s Motion is denied on this issue.

10

While Dr. Gucker noted eight moderate limitations in Section One of the MRFC Assessment,
he also concluded in the PRT that Plaintiff has only mild restrictions of activities of daily living
and in maintaining social functioning, and moderate restrictions only in maintaining
concentration, persistence or pace. AR at 89. ALJ O’Melinn found Plaintiff had even greater
limitations at Step Three, in that he concluded she had moderate limitations in the areas of both
social functioning and in maintaining concentration, persistence or pace. AR at 36.
11

This finding does not conflict with the Tenth Circuit’s decisions in Frantz v. Astrue, 509 F.3d at
1302-03, or Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007), because the Court does
not find that the ALJ rejected any of Dr. Gucker’s moderate limitations.

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C.

Plaintiff’s newly submitted evidence is insufficient to impact
Plaintiff’s RFC.

Plaintiff contends that the ALJ’s decision is no longer supported by substantial
evidence due to the new medical records she submitted to the Appeals Council. Doc. 18
at 24-26. The new evidence relevant to this Motion consists of a May 21, 2015 Medical
Assessment of Ability to do Work-Related Activities (Mental), 12.04 Affective Disorders,
and 12.06 Anxiety Related Disorders completed by Mr. Weeks (AR at 854-57), four
Treatment Plans dated February 19, 2015, May 6, 2015, August 7, 2015, and February
11, 2016 (AR at 867-82), and a Clinical Assessment dated February 11, 2016 (AR at
893-903).
“When a claimant submits new evidence to the Appeals Council and the Council
accepts that evidence, it becomes part of the administrative record . . . .” Vallejo v.
Berryhill, 849 F.3d 951, 954 (10th Cir. 2017) (citing O’Dell v. Shalala, 44 F.3d 855, 85859 (10th Cir. 1994)). Because the Appeals Council did not grant review, the Court must
perform a “substantial-evidence review.” Id. (citing O’Dell, 44 F.3d at 858-59).
The Court begins its review by considering the Medical Assessment of Ability to
do Work-Related Activities form completed by Mr. Weeks. In this assessment, Mr.
Weeks opined that Plaintiff has the following moderate limitations: understand and
remember very short and simple instructions, carry out detailed instructions, maintain
attention and concentration for extended periods of time, perform activities within a
schedule, maintain regular attendance and be punctual within customary tolerance,
work in coordination with/or proximity to others without being distracted by them,
complete a normal workday and workweek without interruptions from psychological [sic]

22

based symptoms and . . . perform at a consistent pace without unreasonable number
and length of rest periods, accept instructions and respond appropriately to criticism
from supervisors, and get along with coworkers or peers without distracting them or
exhibiting behavioral extremes. AR at 854-56. Mr. Weeks opined that Plaintiff has
marked limitations in her ability to understand and remember detailed instructions. AR
at 854. Mr. Weeks also opined that Plaintiff has “marked restriction of activities of daily
living” under both 12.04 (affective disorders) and 12.06 (anxiety-related disorders), and
marked difficulties in maintaining concentration, persistence, or pace under 12.04. AR at
856-57. Mr. Weeks stated that Plaintiff has a “[c]urrent history of 1 or more years’
inability to function outside a highly supportive living arrangement, with an indication of
continued need for such an arrangement.” AR at 856.
As discussed above, opinion evidence from “other sources” is evaluated using
the factors outlined in 20 C.F.R. § 416.927(d). See SSR 06-03p, 2006 WL 2329939, at
*4-5. There is little new to note on the first factor: presumably, Plaintiff is still seeing Mr.
Weeks for weekly counseling sessions, but that is not clear from the new evidence. See
id. at *4. With respect to the third factor, the Court compared the four newly submitted
Treatment Plans (AR at 867-82), which are almost identical to each other,12 to the most
recent Treatment Plan ALJ O’Melinn examined from September 25, 2014 (AR at 82729). All five Treatment Plans describe Plaintiff’s goal as to “[r]educe the significant
impairment caused by [d]epression. In [Plaintiff’s] own words: I want to feel less sad and
12

Other than the appointment date and time differences in the new Treatment Plans, they are
identical save for a single sentence: the two most recent Treatment Plans include “Family
Strengths: Parental involvement, family members care about each other, extended family
support, enjoys activities together, transportation, eats meals together and safe and stable
housing.” AR at 875, 879. The other two newly submitted Plans do not include this sentence.
AR at 867, 871.

23

get along better with my kids.” AR at 827, 868, 872, 876, 880. In the four newly
submitted treatment plans, there is additional information under the “goal” section:
Plaintiff “would like help with the following: [s]chool, computer class, GED”; the barriers
to her goals are “nothing anymore, a bad tire on my car, money”; and her ideas to help
her with the barriers are to “[a]pply for disability, work on resume, find a part time job.”
AR at 867, 871, 875, 879. She also states that she wants “to continue to work on
staying stable so that [she] can be a better mom to [her] son.” AR at 868, 872, 876, 880.
Two of the “objectives” are essentially identical on all five Treatment Plans:
Plaintiff is to “[p]ractice coping strategies to reduce anxiety” and “take medications to
help alleviate depression, irritability, and anxiety issues.” AR at 827, 868, 872, 876, 880.
The four recent Treatment Plans add another objective related to coping strategies for
reducing anxiety, and a fourth on building “living skills by accessing ccss services.” AR
at 868, 872, 876, 880. Five of the six “interventions” are identical on all five Treatment
Plans, the four recent Plans add a sixth intervention related to teaching “skills to
promote effective communication and interaction.” AR at 827-28, 868, 872, 876, 880.
The “Discharge Plan,” which is identical on all but the most recent Plan, curiously notes
that “Nikki may need ongoing med management.” AR at 828, 869, 873, 877 (emphasis
added). The February 11, 2016 Plan omits this note; however, where the previous four
Plans did not include a “discharge date” (see AR at 828, 869, 873, 877), this Plan lists
the “projected discharge date” as February 15, 2017, and notes there are “no barriers to
discharge.” AR at 880-81. This note by itself seems inconsistent with LPCC Weeks’
opinion regarding the many moderate and marked restrictions on Plaintiff’s abilities.

24

The Court also compared the most recent Clinical Assessment dated February
11, 2016, to the April 29, 2014 Clinical Assessment that ALJ O’Melinn examined. See
AR at AR at 43, 808-16, 893-903. The first page of these two documents are almost
identical, despite the fact that two years separates them. AR at 808, 893. While
Plaintiff’s age is updated in the 2016 Clinical Assessment, the remaining information is
unchanged, including the ages of her children and the amount of time she has been
sober. AF at 808, 893. While the form itself changed slightly from 2014 to 2016, the
answers to the unchanged portions (i.e., the “Current Symptom Checklist,” “Symptoms
& Problems,” “Emotional/Psychiatric History,” etc.) are identical on both forms. AR at
808-16, 893-903. The only significant difference in the two forms is the assessment of
the “[h]ighest GAF in the past year,” which LPCC Weeks assessed as 60 in 2014, and
55 in 2016. AR at 815, 901. The five-point drop is not explained in the form or
elsewhere, nor is the drop supported by the new records, as they are almost identical to
records from 2014.
Ultimately, the Court finds the newly submitted records (the Treatment Plans and
Clinical Assessment) add very little to the record. They are similar, if not identical, to the
same documents that ALJ O’Melinn examined. If anything, Plaintiff’s expanded “goals”
and “discharge plan” in the recent Treatment Plans reflect a more positive outlook and
provide even more support for ALJ O’Melinn’s decision.
Regarding the fourth factor, LPCC Weeks provided very little explanation on the
Medical Assessment of Ability to do Work-Related Activities form. Id. His comments
included the following notes:

25

-

“Nicki [sic] gets frustrated – tries to do many things at once and loses her
patience easily.” AR at 854.
“Nicki [sic] gets along with general public at clinic. Nicki [sic] reports she gets
anxious when her medications have not been consistent.” AR at 855.
“Nicki [sic] feels like she adapts to change and to the environment well. This
seems to be true.” AR at 855.
“avoids birthday parties and big crowds” AR at 857.

These comments provide very little of substance to support his findings. For
example, the ALJ found no evidence that Plaintiff had one “or more years’ inability to
function outside a highly supportive living arrangement,” Plaintiff failed to submit any
new evidence to show such a “highly supportive living arrangement,” yet Mr. Weeks
confusingly opined that Plaintiff has a current history of this inability. See AR at 37, 856.
The Court also notes that many of the moderate limitations Mr. Weeks noted mirror
those found by Dr. Gucker. AR at 93-95, 854-57. Yet, Mr. Weeks provided no
substantive commentary or evidence that gives the Court a reason to deviate from Dr.
Gucker’s previous analysis of these limitations.
Finally, with respect to the second factor, Mr. Weeks’ opinion is not fully
consistent with the other record evidence. Mr. Weeks assigned marked limitations to
Plaintiff’s ability to carry out detailed instructions, which is inconsistent with Dr.
Anderson’s and Dr. Gucker’s findings that Plaintiff has only moderate limitations in this
area. AR at 93, 388, 854. Mr. Weeks opined that Plaintiff has marked restrictions of
activities of daily living and in maintaining concentration, persistence, or pace, which is
inconsistent with Plaintiff’s own testimony as discussed above in Section IV(A).
Thus, the Court finds that the newly submitted evidence does not change the
ALJ’s decision. Substantial evidence still supports ALJ O’Melinn’s RFC determination.
The Court will deny Plaintiff’s Motion.
26

V.

Conclusion
The Court finds that the ALJ sufficiently detailed how LPCC Weeks’ opinion was

inconsistent with Plaintiff’s testimony, and the RFC findings adequately capture Dr.
Gucker’s moderate limitations. The Court has reviewed the record as a whole, including
Plaintiff’s newly submitted evidence, and determined that substantial evidence supports
ALJ O’Melinn’s decision.
Wherefore,
IT IS ORDERED that Plaintiff’s Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 18) is denied. The Court will enter a final order
pursuant to Rule 58 of the Federal Rules of Civil Procedure affirming the decision of the
Acting Commissioner and dismissing this action with prejudice.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

27