Rush v. Social Security Administration
Filing
29
MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough denying 19 Motion to Remand to Agency (kfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RENEE PAMELA RUSH,
Plaintiff,
vs.
Civ. No. 18-463 SCY
ANDREW SAUL, Commissioner of Social
Security,1
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record filed
July 31, 2018, Doc. 12, in support of Plaintiff Renee Pamela Rush’s Complaint, Doc. 1, seeking
review of the decision of Defendant Andrew Saul, Commissioner of the Social Security
Administration, denying Plaintiff’s claim for disability insurance benefits under Title II and Title
XVI of the Social Security Act, 42 U.S.C. § 401 et seq. On November 5, 2018, Plaintiff filed her
Motion to Reverse and Remand for a Rehearing With Supporting Memorandum. Doc. 18. The
Commissioner filed a Brief in Response on February 1, 2019, Doc. 26, and Plaintiff filed a Reply
on February 19, 2019, Doc. 27. The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record
and the applicable law and being fully advised in the premises, the Court finds the Motion is not
well taken and is DENIED.
1
Andrew Saul was sworn in as Commissioner of the Social Security Administration on June 17,
2019 and is automatically substituted as a party pursuant to Federal Rule of Civil Procedure
25(d).
2
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all
proceedings and to enter an order of judgment. Docs. 4, 7, 8.
I.
Background and Procedural Record
Claimant Renee Pamela Rush suffers from the following severe impairments: Obstructive
sleep apnea; Cavernous angioma with associated headaches; Attention deficit disorder; Major
depressive disorder; and Cognitive disorder, not otherwise specified. Administrative Record
(“AR”) at 14. She alleges that she became disabled as of January 5, 2008. Id. She completed one
year of college and worked in the past as a sales associate and childcare provider. AR 154, 58485.
On June 1, 2009, Ms. Rush filed concurrent claims of disability under Title II and Title
XVI. AR 12. Her applications were initially denied on November 3, 2009 (AR 52), and upon
reconsideration on April 23, 2011 (AR 53-54). Administrative Law Judge (“ALJ”) Ann Farris
conducted a hearing on October 4, 2012. AR 27-50. Ms. Rush appeared in person at the hearing
with attorney representative Michael Armstrong. AR 27. The ALJ took testimony from Ms. Rush
and an impartial vocational expert (“VE”), Cornelius J. Ford. AR 27-50.
On October 31, 2012, ALJ Farris issued an unfavorable decision. AR 9-22. After the
Appeals Council denied review, AR 1, Ms. Rush appealed to federal court. On March 10, 2015,
Magistrate Judge Stephan M. Vidmar issued a Memorandum Opinion and Order granting Ms.
Rush’s Motion and remanding the case for further proceedings. AR 612-20. Judge Vidmar held
that ALJ Farris’ evaluation of the opinion of Ms. Rush’s psychiatrist, Dr. Hall, violated the
treating physician rule. AR 619. “The question [for the ALJ] is not whether Dr. Hall showed that
his opinion was well supported. The question is whether it actually was well-supported. The ALJ
in this case made no findings suggesting that Dr. Hall’s opinion was not supported.” Id. (citations
omitted). Judge Vidmar remanded for further proceedings. AR 620.
On January 20, 2016, Ms. Rush appeared and testified at a second hearing before ALJ
D’Lisa Simmons. AR 716-65. She appeared with her attorney, Mr. Armstrong. AR 716. The ALJ
2
took testimony from Ms. Rush and an impartial vocational expert (“VE”), Mary Diane Weber.
Id. ALJ Simmons issued an unfavorable decision on March 10, 2016 (AR 627-49). In subsequent
proceedings in federal court, the Commissioner stipulated to a remand. AR 657-58. On March 6,
2017, the Appeals Council remanded to an ALJ to discuss “additional evidence submitted to the
hearing office[r] prior to the issuance of the decision,” including “opinions from treating sources
and third party statements from friends and family.” AR 661.
Ms. Rush then appeared and testified at a hearing before ALJ Stephen Gontis on
November 15, 2017. AR 522-93. She was represented by William S. Rode of Michael D.
Armstrong & Associates. AR 492, 522, 816. Also appearing and testifying were Medical Experts
(“MEs”) Stephen Goldstein M.D. and Alfred Jonas M.D., who both opined that no listing is met
or equaled. AR 527-67. VE Weber testified as to the work in the national economy that a
hypothetical individual could perform with Ms. Rush’s limitations. AR 584-91. ALJ Gontis
determined that Ms. Rush’s date last insured is March 31, 2012. AR 495. He found that she was
not disabled between January 5, 2008 and the date of his decision (January 16, 2018). AR 493,
512-13. The ALJ’s decision is the Commissioner’s final decision for purposes of judicial review
pursuant to 20 C.F.R. § 404.984(a). The Court reserves discussion of the medical records
relevant to this appeal for its analysis.
II.
Applicable Law
A.
Disability Determination Process
An individual is considered disabled if 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) (pertaining to disability insurance
benefits); see also id. § 1382(a)(3)(A) (pertaining to supplemental security income disability
3
benefits for adult individuals). The Social Security Commissioner has adopted the familiar fivestep sequential evaluation process (“SEP”) to determine whether a person satisfies the statutory
criteria as follows:
(1)
At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”3 If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of her medical condition.
(2)
At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment(s) or
combination of impairments that is severe and meets the duration
requirement, she is not disabled.
(3)
At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.
(4)
If, however, the claimant’s impairments do not meet or equal in severity
one of the listings described in Appendix 1 of the regulations, the ALJ
must determine at step four whether the claimant can perform her “past
relevant work.” Answering this question involves three phases. Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all
of the relevant medical and other evidence and determines what is “the
most [claimant] can still do despite [her physical and mental] limitations.”
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s
residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
416.945(a)(3). Second, the ALJ determines the physical and mental
demands of claimant’s past work. Third, the ALJ determines whether,
given claimant’s RFC, the claimant is capable of meeting those demands.
A claimant who is capable of returning to past relevant work is not
disabled.
(5)
If the claimant does not have the RFC to perform her past relevant work,
the Commissioner, at step five, must show that the claimant is able to
perform other work in the national economy, considering the claimant’s
RFC, age, education, and work experience. If the Commissioner is unable
to make that showing, the claimant is deemed disabled. If, however, the
3
Substantial work activity is work activity that involves doing significant physical or mental
activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a
part-time basis or if you do less, get paid less, or have less responsibility than when you worked
before. Id. Gainful work activity is work activity that you do for pay or profit. 20 C.F.R.
§§ 404.1572(b), 416.972(b).
4
Commissioner is able to make the required showing, the claimant is
deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
The claimant has the initial burden of establishing a disability in the first four steps of this
analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The burden shifts to the Commissioner
at step five to show that the claimant is capable of performing work in the national economy. Id.
A finding that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. Casias v. Sec’y of Health & Human Serv., 933 F.2d 799,
801 (10th Cir. 1991).
B.
Standard of Review
This Court must affirm the Commissioner’s denial of social security benefits unless
(1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the
proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
1270, 1272 (10th Cir. 2008). “[W]hatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019). Substantial evidence “is ‘more than a mere scintilla.’” Id. (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It means—and means only—such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation
marks omitted).
5
A decision “is not based on substantial evidence if it is overwhelmed by other evidence in
the record,” Langley, 373 F.3d at 1118, or “constitutes mere conclusion,” Musgrave v. Sullivan,
966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a
sufficient basis to determine that appropriate legal principles have been followed.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to
discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the
evidence,” and “the [ALJ’s] reasons for finding a claimant not disabled” must be “articulated
with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But
where the reviewing court “can follow the adjudicator’s reasoning” in conducting its review,
“and can determine that correct legal standards have been applied, merely technical omissions in
the ALJ’s reasoning do not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(10th Cir. 2012). The court “should, indeed must, exercise common sense.” Id. “The more
comprehensive the ALJ’s explanation, the easier [the] task; but [the court] cannot insist on
technical perfection.” Id.
III.
Analysis
In support of her Motion to Remand, Ms. Rush argues that the ALJ impermissibly
disregarded moderate limitations assigned by a state agency non-examining consultant, Dr.
Walker; improperly weighed the opinion of Dr. Hall, Ms. Rush’s treating physician; and
improperly weighed opinion evidence from a licensed clinical social worker. Doc. 19 at 2.
A.
The ALJ Did Not Improperly Pick and Choose from a Consulting Doctor’s
Opinion.
Ms. Rush argues that the ALJ’s RFC determination in this case is an improper attempt to
“pick and choose” portions of a consulting doctor’s opinion favorable to a non-disability finding
while disregarding other portions without explaining why. Because the ALJ arrived at essentially
6
the same RFC as the consulting doctor, the Court rejects Ms. Rush’s argument that the ALJ
improperly disregarded some of his opinions.
State agency non-examining consultant Scott Walker, M.D, evaluated Ms. Rush’s
medical records on October 29, 2009. AR 284-88. Dr. Walker reviewed and discussed the
medical evidence and, in answering questions relating to Ms. Rush’s mental residual functional
capacity assessment (“MRFCA”), assessed in Section I the following “moderate limitations”4:
Understanding, remembering, and carrying out detailed instructions;
Maintaining attention and concentration for extended periods of time;
Performing activities within a schedule, maintaining regular attendance, and being
punctual within customary tolerance;
Sustaining an ordinary routine without special supervision;
Completing a normal workday and workweek without interruptions from
psychologically based symptoms and performing at a consistent pace without an
unreasonable number and length of rest periods;
Interacting appropriately with the general public;
Accepting instructions and responding appropriately to criticism from supervisors;
Getting along with coworkers or peers without distracting them or exhibiting
behavioral extremes; and
Responding appropriately to changes in the workplace.
Doc. 19 at 15; see AR 286-87. In his narrative in Section III, Dr. Walker found that Ms. Rush
“can understand, remember, and carry out simple instructions, make simple decisions, attend and
4
Dr. Walker used special Form SSA-4734-F4-SUP. That form contains three sections, one of
which is a checkbox-style worksheet for rating functional limitations (Section I) and another
which provides space for a narrative opinion recording the mental RFC determination (Section
III).
7
concentrate for two hours at a time, interact adequately with coworkers and supervisors, and
respond appropriately to changes in a routine work setting.” AR 288.
The ALJ accorded Dr. Walker’s opinion “great weight” at step four of his analysis, AR
507, and in relevant part calculated Ms. Rush’s RFC as follows:
The claimant is limited to simple, routine tasks. The claimant can interact with the
public, coworkers, and supervisors no more than occasionally. The claimant can
tolerate few changes in the work setting. Time off task can be accommodated by
normal breaks.
AR 501.
Ms. Rush argues that the ALJ contradictorily afforded Dr. Walker’s opinion “great
weight,” but went on to disregard, without explanation, many of the limitations he endorsed in
Section I. Doc. 19 at 16-17. Specifically, Plaintiff argues that the ALJ failed to include in his
RFC limitations with respect to Ms. Rush’s ability to: (1) “maintain attention and concentration
for extended periods of time”; (2) “perform activities within a schedule”; (3) “maintain regular
attendance, and be punctual within customary tolerance”; (4) “sustain an ordinary routine
without special supervision”; and (5) “complete a normal workday and workweek without
interruptions from psychological[ly] based symptoms and to perform at a consistent pace without
[an] unreasonable number and length of rest periods.” Doc. 19 at 16-17.
Ms. Rush invokes the Tenth Circuit’s holding in Haga v. Astrue 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.” 482 F.3d 1205, 1208 (10th Cir. 2007); see Doc. 19 at
15. In Haga, a state agency examining psychological consultant reviewed the record and
recommended additional testing for the claimant. 482 F.3d at 1207. The ALJ agreed and the
doctor did his additional tests. Id. “[P]art of his detailed response was to fill out a mental RFC
form, on which he marked appellant moderately impaired in seven out of ten functional
8
categories.” Id. While the ALJ’s RFC incorporated three of these moderate limitations, it did not
incorporate the other four. Id. Further, the ALJ did not provide an explanation for rejecting the
remaining four moderate limitations and “the evidence on which the ALJ explicitly relied in his
decision [did] not imply an explanation . . . .” Id.
On appeal, the Tenth Circuit noted “it is simply unexplained why the ALJ adopted some
of [the doctor]’s restrictions but not others.” Id. at 1208. Although an “ALJ is entitled to resolve
any conflicts in the record,” the court stressed that an ALJ must actually identify the evidence
that conflicts with the doctor’s medical opinion or RFC assessment. Id. The Tenth Circuit
reinforced this point later that same year when it applied Haga to remand where the “ALJ erred
in accepting some of the moderate limitations in the Mental RFC form completed by . . . a
nonexamining physician, but rejecting others without discussion.” Frantz v. Astrue, 509 F.3d
1299, 1302-03 (10th Cir. 2007).
When a doctor who assesses Section I moderate limitations also opines on a claimant’s
residual functioning capacity, however, the ALJ does not necessarily need to discuss each
moderate limitation. This limitation of Haga and Astrue’s scope comes from the Tenth Circuit’s
decision in Smith v. Colvin, 821 F.3d 1264, 1268-69 (10th Cir. 2016). In Smith, the consulting
doctor reviewed the claimant’s records and completed a worksheet finding that she had moderate
limitations in her ability to:
maintain concentration, persistence, and pace,
remain attentive and keep concentration for extended periods,
work with others without getting distracted,
complete a normal workday and workweek without interruption for psychologically
based systems,
perform at a consistent pace without excessive rest periods,
9
accept instructions and respond appropriately to criticism by supervisors,
get along with coworkers or peers without distracting them or engaging in behavioral
extremes,
respond appropriately to changes in the workplace, and
set realistic goals or independently plan.
Id. at 1268.
Although the doctor found moderate limitations in nine Section I categories, in forming
the claimant’s mental residual functional capacity the doctor simply opined that the claimant
could “(1) engage in work that was limited in complexity and (2) manage social interactions that
were not frequent or prolonged.” Id. The ALJ, in turn, assessed that the claimant “could not
engage in face-to-face contact with the public and (2) could engage in only simple, repetitive,
and routine tasks.” Id. at 1269. The Tenth Circuit held that, although the ALJ “did not repeat the
moderate limitations assessed by the doctor,” affirmance was proper because the ALJ
“incorporated these limitations by stating how the claimant was limited in the ability to perform
work-related activities.” Id.
Smith relied on Vigil v. Colvin, in which the court held that a claimant’s moderate mental
limitations in concentration, persistence, and pace were sufficiently taken into account by a
restriction to unskilled work. 805 F.3d 1199, 1204 (10th Cir. 2015). The ALJ in Vigil found that
the claimant was moderately limited in the ability to maintain concentration for extended
periods. Id. at 1203. But the ALJ further found that the claimant “retained enough memory and
concentration to perform at least simple tasks.” Id. at 1203-04 (alteration omitted). Because the
limitation was “not critical” to the performance of unskilled work, the ALJ’s RFC appropriately
10
accounted for claimant’s limitations. Id at 1204. In particular, “limiting the plaintiff to an SVP[5]
of only one or two[] adequately took into account his moderate limitations in concentration,
persistence, and pace.” Id.
Smith also favorably cited an unpublished case, Lee v. Colvin, 631 F. App’x 538 (10th
Cir. 2015). In Lee, the ALJ adopted, “essentially verbatim, the limitations from Section III of the
MRFCA.” Id. at 541. The court held that “[h]aving adopted the limitations described in section
III of the MRFCA, the ALJ was not also required to specifically adopt or discuss each individual
limitation described in section I.” Id. Other unpublished opinions from the Tenth Circuit have
affirmed the ALJ based on similar reasoning. See, e.g., Nelson v. Colvin, 655 F. App’x 626, 629
(10th Cir. 2016); Fulton v. Colvin, 631 F. App’x 498, 502 (10th Cir. 2015).
Finally, the Tenth Circuit in Smith expressly stated that asking “how the administrative
law judge’s assessment incorporates the numerous moderate limitations indicated by [the doctor]
. . . is the wrong question.” 821 F.3d at 1269 n.2. The doctor’s Section I notations, the Tenth
Circuit explained, “serve[] only as an aid to her assessment of residual functional capacity.” Id.
The reviewing court is to “compare the administrative law judge’s findings to [the doctor]’s
opinion on residual functional capacity, not her notations of moderate limitations.” Id.
The implications of this reasoning can best be understood by examining one of the
Section I limitations discussed in Smith: a “moderate” limitation in the ability to “work with
5
The specific vocational preparation (“SVP”) “refers to the ‘time required by a typical worker to
learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.’” Vigil, 805 F.3d at 1201 n.2 (quoting the
Dictionary of Occupational Titles, App. C, Sec. II (4th ed., revised 1991), 1991 WL 688702
(G.P.O.)). “A job at SVP one requires ‘a short demonstration only’ and at SVP two requires
‘anything beyond a short demonstration up to and including 1 month.’” Id. “[U]nskilled work
corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work
corresponds to an SVP of 5-9 in the DOT.” SSR 00-4p, 2000 WL 1898704, at *3.
11
others without getting distracted.” Id. at 1268. Unlike the situation in Vigil, the absence of
discussion about this moderate limitation in the ALJ’s decision cannot be accounted for by
simply limiting a claimant to unskilled work. This is because the ability to “work in coordination
with or proximity to others without being (unduly) distracted by them” is “critical for performing
unskilled work.” POMS § DI 25020.010, § B(3)(g).6 Yet, even though the ALJ never discussed
this moderate limitation and this moderate limitation cannot be accounted for through the
limitation of the claimant to unskilled work, the Tenth Circuit in Smith rejected the claimant’s
argument that the ALJ’s failure to address this moderate limitation constituted error.
Given that moderate limitations matter (Haga, 482 F.3d at 1208, made clear that “a
moderate impairment is not the same as no impairment at all”), the question arises as to when the
absence of ALJ discussion about a Section I moderate limitation requires remand (as in Haga
and Frantz) and when the absence of ALJ discussion about a Section I moderate limitation
constitutes no error. One situation that constitutes no error is when the ALJ justifiably gives the
doctor’s opinion little to no weight. SSR 96-6p, 1996 WL 374180, at *2 (“Administrative law
judges and the Appeals Council are not bound by findings made by State agency or other
program physicians and psychologists, but they may not ignore these opinions and must explain
the weight given to the opinions in their decisions.”). Vigil makes clear that another situation is
when the assignment to unskilled work incorporates or otherwise accounts for the Section I
moderate limitation. Smith demonstrates that yet another situation is when the doctor who
6
The Social Security Administration Program Operations Manual System (“POMS”) is “a set of
policies issued by the Administration to be used in processing claims.” McNamar v. Apfel, 172
F.3d 764, 766 (10th Cir. 1999). The reviewing court will defer to the POMS provisions unless
they are arbitrary, capricious, or contrary to law. Ramey v. Reinertson, 268 F.3d 955, 964 n.2
(10th Cir. 2001); see also Vigil, 805 F.3d at 1204 (relying on the POMS’ definition of unskilled
work).
12
assessed the Section I moderate limitation has also reached an opinion on residual functional
capacity in his or her Section III/narrative discussion, which the ALJ then accepts.
In this respect, Smith deviated from unpublished Tenth Circuit cases that called for the
consulting doctor to carefully adhere to Section I worksheet limitations when fashioning a
narrative RFC. For example, in Carver v. Colvin, the Tenth Circuit held that an ALJ may not
“turn a blind eye to moderate Section I limitations,” and “[i]f a consultant’s Section III narrative
fails to describe the effect that each of the Section I moderate limitations would have on the
claimant’s ability, or if it contradicts limitations marked in Section I, the MRFCA cannot
properly be considered part of the substantial evidence supporting an ALJ’s RFC finding.” 600
F. App’x 616, 619 (10th Cir. 2015).7
As Ms. Rush notes in her reply brief, other judges in this District have declined to follow
Smith on the ground that it is inconsistent with Haga and Frantz, and one panel of the Tenth
Circuit cannot overrule another panel. See, e.g., Cordova v. Berryhill, No. 17-cv-611-SMV, 2018
WL 2138647, at *7 (D.N.M. May 9, 2018); Jones v. Berryhill, No. 15-cv-842-LF, 2017 WL
3052748, at *5 n.6 (D.N.M. June 15, 2017); Doc. 27 at 2. This Court does not agree that these
cases are irreconcilable. Haga and Frantz continue to stand for the proposition 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.” 482 F.3d at 1208. But they do not specify what
exactly constitutes the doctor’s ultimate “opinion” when a doctor has checked boxes on a form
7
Ms. Rush cites previous opinions by this Court which similarly held that a consulting physician
must account for all worksheet moderate limitations in his narrative RFC, and the ALJ may not
overlook inconsistencies between the two. Doc. 19 at 17-18; Chavez v. Colvin, No. 14-1067
SCY, 2016 WL 10179283, at *6 (D.N.M. July 8, 2016); Vamvakerides v. Colvin, No. 14-00897
SCY, 2016 WL 10538097, at *6-7 (D.N.M. Apr. 7, 2016). On further consideration, as explained
above, cases like Chavez, Vamvakerides, and Carver cannot be reconciled with the published
Tenth Circuit opinion in Smith.
13
(Section I), the significance of which is then clarified through the doctor’s narrative opinion
about a claimant’s RFC (Section III). Unlike in Smith, the panels in Haga and Frantz did not
consider a doctor’s narrative RFC opinion and so had no occasion to opine about how Section I
moderate limitations should be evaluated in light of a doctor’s narrative RFC opinion.
Haga and Frantz therefore did not address the question Smith answers—whether an ALJ
is permitted to rely on the doctor’s ultimate opinion as expressed in the narrative RFC, when that
RFC does not exactly match the doctor’s own Section I worksheet limitations. As Smith explains,
the doctor need not make sure the narrative and the worksheet exactly match. When the doctor
fashions an RFC in his narrative opinion, that controls over any moderate worksheet limitations
because the worksheet serves as an “aid” to an opinion and is not the opinion itself. Smith, 821
F.3d at 1269 n.2.
Based on Smith, the Court rejects Ms. Rush’s argument that, once the ALJ gave great
weight to Dr. Walker’s opinion, the ALJ was required to either adopt Dr. Walker’s Section I
moderate limitations or, for each moderate limitation, explain why he did not adopt that
limitation. Smith mandates affirmance here because the doctor’s narrative RFC and the ALJ’s
RFC are consistent. In his narrative, Dr. Walker opined that Ms. Rush “can understand,
remember, and carry out simple instructions [and] make simple decisions” and the ALJ found
that she “is limited to simple, routine tasks.” AR 288, 501. Dr. Walker opined that Ms. Rush can
“attend and concentrate for two hours at a time” and the ALJ found that her “[t]ime off task can
be accommodated by normal breaks.”8 Id. Dr. Walker found that Ms. Rush can “interact
adequately with coworkers and supervisors” and the ALJ found that she “can interact with the
8
“Normal breaks” is consistent with the requirement to concentrate for “the approximately 2hour segments between arrival and first break, lunch, second break, and departure.” POMS § DI
25020.010, § B(2)(a).
14
public, coworkers, and supervisors no more than occasionally.” Id. And finally, Dr. Walker
found that she can “respond appropriately to changes in a routine work setting,” while the ALJ
found that she “can tolerate few changes in the work setting.” Id. Demonstrably, these opinions
are virtually identical. And where they are not identical, the ALJ’s RFC is more restrictive than
Dr. Walker’s. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (it is not error
for the ALJ to have “developed a mental RFC consistent with [a consultative examiner]’s
findings in some areas but more favorable” to the claimant in other areas).
Thus, even though the ALJ did not discuss all of Dr. Walker’s Section I moderate
limitations, he did not commit error.
B.
The ALJ Properly Weighed the Opinion of Dr. E.B. Hall, M.D.
The ALJ is required to evaluate every medical opinion he receives that could have an
effect on the RFC. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161-62 (10th Cir. 2012); Doyal v.
Barnhart, 331 F.3d 758, 764 (10th Cir. 2003). For claims filed before March 27, 2017,9 as the
present claim is, medical opinions are classified into two different categories: “acceptable
medical sources” and “other sources.” “Acceptable medical sources” are licensed physicians,
licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified
speech-language pathologists. SSR 06-03p, 2006 WL 2329939, at *1; SSR 96-2p, 2017 WL
3928298. A unique two-step rule applies to the opinions of treating physicians (acceptable
medical sources who provide or have provided the claimant with medical treatment and who
have an ongoing relationship with the claimant). First, the ALJ must determine whether the
9
For claims filed on or after March 27, 2017, all medical sources can provide evidence that is
categorized and considered as medical opinion evidence and subject to the same standard of
review. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5844 (Jan. 18, 2017).
15
opinion is entitled to “controlling weight.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003). An ALJ is required to give the opinion of a treating physician controlling weight if it is
both: (1) “well-supported by medically acceptable clinical and laboratory diagnostic techniques”;
and (2) “consistent with other substantial evidence in the record.” Id. (internal quotation marks
omitted). “[I]f the opinion is deficient in either of these respects, then it is not entitled to
controlling weight.” Id. If it is not given controlling weight, “at the second step in the analysis,
the ALJ must make clear how much weight the opinion is being given (including whether it is
being rejected outright) and give good reasons, tied to the factors specified in the cited
regulations for this particular purpose, for the weight assigned.” Krauser, 638 F.3d at 1330.10
The ALJ is not, however, required to “apply expressly each of the six relevant factors in
deciding what weight to give a medical opinion.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007). Rather, the decision need only 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.” Id. (internal quotation marks omitted). The Tenth Circuit has
also expressed this as a requirement that the ALJ provide “specific and legitimate reasons” for
rejecting an opinion. Doyal, 331 F.3d at 764; Watkins, 350 F.3d at 1301. The ALJ’s reasons are
reviewed for substantial evidence. Doyal, 331 F.3d at 764.
10
Prior to March 27, 2017, the factors in the regulation were: (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. Goatcher v. U.S. Dep’t of Health
& Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (quoting 20 C.F.R. § 404.1527(d)(2)-(6)).
16
In this case, Ms. Rush argues that the ALJ improperly weighed functional assessments
completed by her treating psychiatrist, Dr. Hall, in 2010 and 2016. Doc. 19 at 19. Dr. Hall
completed a Medical Assessment of Ability to do Work-Related Activities (Mental) (“MSS”) on
August 31, 2010. AR 441-42. He considered Ms. Rush’s medical history from a year prior to her
initial visit, which was sometime in April 2008, AR 285, to the current date of August 31, 2010.
AR 441. On March 2, 2016, Dr. Hall completed another MSS which considered Ms. Rush’s
medical history from 2012 to the current date. AR 1302-03.
The ALJ found that “Dr. Hall’s opinion as set out in [the MSS] forms is not entitled to
controlling weight.” AR 509. “It is not well supported by medically acceptable clinical and
laboratory diagnostic techniques and it is inconsistent with the other substantial evidence in the
case record.” Id. “[H]aving considered the factors set out in 20 CFR 404.1527 . . . I find that his
opinion is entitled to limited weight.” Id. The ALJ acknowledged that Dr. Hall is Ms. Rush’s
“long time treating psychiatrist” and that “his opinion is about his area of specialty.” Id. But the
ALJ provided three specific reasons for assigning the opinion limited weight: (1) “there are
internal inconsistencies in the forms” as well as inconsistencies between Dr. Hall’s opinion and
“other substantial evidence in the case record”; (2) “Dr. Hall’s treatment notes do not provide
evidence to support his opinion”; and (3) “neuropsychological testing does not support his
opinion.” Id. Further, the ALJ wrote several paragraphs providing the foundation for each of
these three reasons. As set forth more fully below, the Court concludes that the ALJ’s decision to
give Dr. Hall’s opinion limited weight based on these three reasons is supported by substantial
evidence.
1.
Inconsistencies
The ALJ first identified Dr. Hall’s own forms as internally inconsistent. Specifically, Dr.
Hall completed a mental residual functional capacity assessment form (“MRFCA”) that
17
instructed Dr. Hall to give “an assessment of how the patient’s mental/emotional capabilities are
affected by the impairment(s).” AR 441. The form is broken down into the familiar
nonexertional categories (understanding and memory; sustained concentration and persistence;
social interaction; and adaptation). AR 441-42. Under “concentration and persistence,” Dr. Hall
assessed one “slight” limitation, two “marked” limitations, and four “moderate” limitations. AR
442. However, on the same day, Dr. Hall completed a form for the listing criteria for 12.04,
Affective Disorders. AR 444. In that form, he assessed that Ms. Rush has “marked difficulties in
maintaining concentration, persistence, or pace.” Id. The ALJ noted the same inconsistencies—
that the MRFCA predominantly contained limitations that were moderate or less, while the
listing forms indicated only a marked limitation—in the 2016 forms. AR 509; see AR 1303-04.
Similarly, the ALJ noted that Dr. Hall’s assessment for social functioning on the 2010
MRFCA form differed from Dr. Hall’s assessment for social functioning on the 2010 listing
form. In assessing the social interaction portion of the MRFCA, Dr. Hall found three “slight”
limitations, two “moderate” limitations, and no “marked” limitations, AR 442. On the listing
criteria form, however, Dr. Hall assessed “marked” difficulties in maintaining social functioning.
AR 444. The ALJ noted the same inconsistencies in the 2016 forms. AR 509; see AR 1303-04.
Ms. Rush argues that the ALJ’s decision to reduce the weight given to Dr. Hall based on
the ALJ’s determination of inconsistencies in these forms is wrong for two reasons. First, she
asserts that “the forms do not convey the same information. They were constructed by different
parties, for different purposes, and in different areas.” Doc. 19 at 20. Ms. Rush, however, cites no
authority in support of her contention that an ALJ should not compare information on the two
forms. Moreover, while the forms may have been constructed for different purposes, the forms
request similar information about a claimant’s mental capabilities. To the extent a doctor
18
provides conflicting information about a claimant’s mental capabilities, it logically seems
appropriate for the ALJ to consider this conflicting information when determining how much
weight to give that doctor’s opinion. Indeed, the regulations instruct that an ALJ should consider
inconsistencies in the record. See Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007).
Second, Ms. Rush argues that the assessments on the forms are not in conflict. She asserts
that the listing forms cover “broad categories” (such as activities of daily living, social
functioning, and concentration, persistence and pace), whereas the MRFCA “breaks down those
areas into 20 activities within the categories.” Doc. 19 at 20. Ms. Rush then argues that the
limitations in activities Dr. Hall found on the MRFCA, when combined, support the marked
limitations in broad categories that Dr. Hall found Plaintiff to have on the listing forms. Id. at 2021.
Given the deferential substantial-evidence standard the Court must apply when reviewing
an ALJ’s decision, had the ALJ determined that the listing forms were not inconsistent with the
MRFCA form, Ms. Rush’s reasoning might support such a conclusion. But the ALJ concluded
the opposite, and this opposite conclusion is also subject to the deferential substantial-evidence
standard. Biestek, 139 S. Ct. at 1156; Pisciotta, 500 F.3d at 1078. Instead of conducting a de
novo review of the ALJ’s findings, the Court must determine whether his findings are supported
by “more than a mere scintilla” of evidence. Biestek, 139 S. Ct. at 1154. In doing so, the Court
must ask whether the ALJ has identified an internal discrepancy that is “seemingly” inconsistent.
Pisciotta, 500 F.3d at 1078. The Court answers this question in the affirmative. With regard to
social interaction in particular, the record shows that Dr. Hall stated on one form that Ms. Rush
has only slight to moderate limitations but then on a separate form he filled out the same day
19
concluded that she is markedly limited. This is “seemingly inconsistent,” as the ALJ explained at
length.
Nor are these reports the only records that support the ALJ’s finding of inconsistency in
Dr. Hall’s reports. The ALJ also found Dr. Hall made assessments inconsistent with the overall
record when Dr. Hall opined that Ms. Rush “experienced ‘repeated episodes of decompensation,
each of extended duration,’” despite no evidence that Ms. Rush had ever been hospitalized or
required inpatient treatment except for her one visit to the ER for anxiety. AR 509; see AR 439,
440, 444. “‘Episodes of decompensation may be demonstrated by an exacerbation in symptoms
or signs that would ordinarily require increased treatment or a less stressful situation.’” Davison
v. Colvin, 596 F. App’x 675, 678 (10th Cir. 2014) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.00(C)(4)). “They ‘may be inferred from medical records showing significant alteration in
medication or documentation of the need for a more structured psychological support system
(e.g., hospitalizations, placement in a halfway house, or a highly structured and directing
household).’” Id. (alterations omitted). “[T]he listings define the term ‘repeated episodes of
decompensation, each of extended duration’ as ‘three episodes within 1 year, or an average of
once every 4 months, each lasting for at least 2 weeks.’” Id. Therefore, while hospitalization is
not necessarily required to demonstrate this listing criterion, it is certainly relevant. Id. The
burden is on the claimant to present evidence of episodes of decompensation lasting more than
two weeks. Id. Nonetheless, Ms. Rush points to no evidence of episodes of decompensation
lasting more than two weeks that could have supported Dr. Hall’s opinion. This seeming
inconsistency between Dr. Hall’s medical opinion and the record as a whole further supports the
ALJ’s decision to discount the weight he gave to Dr. Hall’s opinions. Accordingly, the Court
finds no error in the ALJ’s decision to discount Dr. Hall’s opinion.
20
2.
Unsupported by treatment notes
The ALJ found that Dr. Hall’s own contemporaneous treatment notes failed to support
the limitations he found. The ALJ’s discussion of Dr. Hall’s treatment notes divided them into
two different categories: treatment notes before September 26, 2012, which largely consisted of
medication prescription orders and handwritten descriptions of the patient’s subjective symptom
evidence, AR 509-10; and treatment notes after 2013, which include mental status examination
findings and psychomotor testing, AR 510.
Ms. Rush objects that the ALJ cannot reject a treating physician’s opinion simply because
he relied on subjective evidence from the patient. Doc. 19 at 21. Ms. Rush misses the point. The
ALJ did not criticize Dr. Hall for relying on subjective evidence from Ms. Rush; the ALJ simply
found that his notes prior to 2013 included no objective findings. AR 509-10. The record
supports this finding. AR 270-85, 360-61, 363-88, 393-99, 447-80. Indeed, the ALJ was required
to evaluate whether Dr. Hall’s opinion was “well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
The ALJ’s observation that, prior to 2012, Dr. Hall documented no clinical or diagnostic testing,
then, is highly relevant to whether Dr. Hall’s opinion is entitled to controlling weight. E.g., White
v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 2001), as amended on denial of reh’g (Apr. 5,
2002).
The ALJ’s finding that Dr. Hall’s opinion is contradicted by his own clinical
examinations after 2013 is supported by substantial evidence, which the ALJ cited. AR 510. In
March 2013, Dr. Hall assessed Ms. Rush’s mental status as normal/unremarkable, including
intact memory, concentration, and attention. AR 1044-46. Her mood was euthymic, her mood
congruent, and her thought process was goal directed. AR 1045. He commented that Ms. Rush’s
ADD, “low motivation,” and “depression” were being “managed” by medication. AR 1045. In
21
July, she presented as “mostly stable.” AR 1040-43. Her mental status examination was normal/
unremarkable except that her mood was sad/depressed. AR 1041. Her thought content was not
abnormal, and her judgment, memory, concentration, and attention were intact. AR 1041. In
October, she was “doing well on medications” and the mental status examination was normal.
AR 1036-39. Her thought content was not abnormal, and her judgment, memory, concentration,
and attention were intact. AR 1037.
In January 2014, she again presented as mostly stable and her mental status examination
was normal, including intact judgment, memory, concentration, and attention. AR 1030-35. Her
mood and affect were sad/depressed. AR 1033. In April, her sleep and appetite were stable, she
had increased focus and concentration, her mood lifted, her tremors had stopped, and her mental
status exam was normal, but her mood was sad/depressed. AR 1025-29. Her judgment, memory,
concentration, and attention were intact. AR 1026. In August, the only clinical note was that her
medications were tolerated, and no changes were needed. AR 1020-24. In September, Dr. Hall
noted “much improvement” and good insight and interaction, and her mental status exam was
normal. AR 1016-19. Her judgment, memory, concentration, and attention were intact. AR 1017.
In December, her current medication was tolerated, her focus was improved, she was less
irritable and anxious and more goal oriented. AR 1011-15. Her mental status exam was normal,
including intact judgment, memory, concentration, and attention. AR 1012.
In March 2015, Dr. Hall noted she was anxious and depressed, and her mental status
exam was normal, but her mood was sad/depressed/fearful/anxious. AR 1006-10. Her judgment,
memory, concentration, and attention were intact. AR 1007. In June, the only clinical note was
that Ms. Rush requested medication refills, and her mental status exam was normal, but her
mood was sad/depressed/fearful/anxious. AR 1001-05. Her judgment, memory, concentration,
22
and attention were intact. AR 1002. In October, he noted that her depression “comes and goes”
and she was frightened by surgery and struggled with fatigue. AR 996-1000. Her mental status
exam was normal, but her mood was sad/depressed/fearful/anxious. Her judgment, memory,
concentration, and attention were intact. AR 997. In December, she felt horrible and unhappy
and she experienced “lots of anxiety and panic attacks.” AR 1402-06. Her mental status exam
was normal, but her mood was sad/depressed/fearful/anxious. Her judgment, memory,
concentration, and attention were intact. AR 1043.
In March 2016, Dr. Hall discussed his clinical findings ranging from Ms. Rush’s
“hoarding” to her concentration, movements, irrational fears, and interacting hypervigilance. He
noted she had previously presented to the ER for “panic.” He also noted she brought in
“paperwork for disability.” AR 1397-1401. The mental status exam continued to reveal normal
findings, but he noted her mood was sad/depressed/fearful/anxious. Her judgment, memory,
concentration, and attention were intact. AR 1398. By July, Ms. Rush’s symptoms were again
“well controlled” with medication and she was able to concentrate and complete tasks. AR 139196. Her mental status exam was normal, but her mood was sad/depressed/fearful/anxious. Her
judgment, memory, concentration, and attention were intact. AR 1392. In early November, her
anxiety was less and she wanted to make changes. AR 1386-90. Her mental status exam was
normal, including intact memory, concentration, and attention. AR 1387. In late November, Dr.
Hall noted both that she was experiencing “increased anxiety” but also that her “anxiety and
discontinuation symptoms are now much less.” AR 1375-79. Her mental status exam was
normal, including intact memory, concentration, and attention. AR 1377. In December, he found
that her depression was inadequately controlled and her anxiety partially managed. AR 1368-74.
The mental status exam noted she was sad/depressed/fearful/anxious and that her thought
23
processes were tangential, circumstantial/hopeless, and she exhibited poor confidence and
ruminations. Her memory, judgment, concentration, and attention were intact. AR 1370. In July
of 2017, she was again “doing much better”; her “situation [wa]s improved”; and her mental
status exam was normal, but her mood was sad/depressed/fearful/anxious. AR 1362-67. Her
judgment, memory, concentration, and attention were intact. AR 1363.
In sum, it was not error for the ALJ to determine that Dr. Hall’s treating records fail to
support his assessment that Ms. Rush is markedly limited in many areas of mental functioning.
Dr. Hall consistently documented that the results of the mental status exams were normal or
unremarkable. As the ALJ carefully noted, Ms. Rush’s memory, attention, and concentration
(mental status) as well as her gait and station (psychomotor functioning) were consistently
intact/normal. AR 510-11; see AR 997, 1002, 1007, 1026, 1033, 1041, 1363, 1370, 1392, 1398,
1403. Her symptoms fluctuated as did her moods, but she was on a stable, routine medication
regimen and Dr. Hall never recommended more intensive psychiatric treatment. AR 510.
The Tenth Circuit has repeatedly affirmed an ALJ’s rejection of treating psychiatrist’s
opinion under similar circumstances. In DeFalco-Miller v. Colvin, the court found that the ALJ
properly gave little weight to a treating physician’s opinion where the physician’s treatment
notes “reported no abnormal findings or only a depressed mood or periodic situational
depression,” and where the physician “repeatedly found no psychotic episodes.” 520 F. App’x
741, 746 (10th Cir. 2013). The court also accepted the ALJ’s observation that the psychiatrist’s
“course of treatment” for the claimant “belied” his “opined limitations.” Id. “The record
indicates that [claimant] saw [psychiatrist] roughly fourteen times over a forty-three month
period primarily to adjust her medications . . . .” Id. at 747. The psychiatrist “did not pursue more
invasive treatment options.” Id. “Yet he signed off on the RFC form, agreeing . . . that [claimant]
24
had marked or extreme limitations in every area.” Id. “The course of [claimant]’s treatment,
however, casts doubt on those limitations.” Id.
Similarly, in Beasley v. Colvin, the court found that the ALJ properly rejected the treating
psychiatrist’s opinion where his treatment records “did occasionally note that [claimant]’s mood
was dysphoric and her affect was sad and tearful, but his records do not include findings that
[claimant] exhibited or was experiencing significant functional limitations caused by her mental
impairment.” 520 F. App’x 748, 752 (10th Cir. 2013). “The majority of [the psychiatrist]’s
treatment records reflect that on mental status examination [claimant] was ‘pleasant and
cooperative’ and exhibited relatively stable somatic functions, normal motor activity, and ‘no
acute psychotic symptoms.’” Id. (alterations omitted).
In Dixon v. Colvin, the court affirmed the ALJ’s observation that the assignment of
“extreme limitations appears in some tension with the limited mental health treatment [the same
doctor] prescribed.” 556 F. App’x 681, 683 (10th Cir. 2014). First, the court observed that the
claimant “saw a therapist once or twice a month; received monthly prescription refills; and
worked with counselors to deal with anger management, sleep difficulties, and mood swings.”
Id. As the ALJ remarked, such treatment is “fairly conservative.” Id. Second, the court agreed
that the treating physician’s opinion was inconsistent with his own treatment notes, which at
least once indicated that the doctor thought the claimant was not disabled as a result of her
mental health conditions. Id. The Tenth Circuit found that these two grounds, standing alone,
were sufficient to affirm the ALJ’s rejection of a treating physician’s opinion. Id. at 682-83.
In Arterberry v. Berryhill, the Tenth Circuit affirmed where “[s]ubstantial evidence
supports the ALJ’s observation that [the treating physician]’s defined limitations were not
consistent with the medical evidence, including his own mental examinations,” and “the ALJ
25
accurately noted that [the treating physician]’s treatment plan was limited to medication
management.” 743 F. App’x 227, 229 (10th Cir. 2018). And a few months later, in Adcock v.
Commissioner, the Tenth Circuit affirmed the limited weight assigned to a treating
psychologist’s opinion on the claimant’s “functional limitations.” 748 F. App’x 842, 846 (10th
Cir. 2018). The court explained that “there is evidence—including notes from Dr. Speer—that
indicates her medications were helpful; she was oriented; she exhibited no signs of psychosis or
mania; her behavior, speech, and affect were appropriate or unremarkable; and she was
cooperative. Other notes from Dr. Isabel Vega indicate that she had insight and good judgment,
normal mood and affect, was active and alert, oriented to time, place, and person, and had
normal recent and remote memory.” Id. (citations omitted). “The ALJ also observed that there
was no evidence of repeated episodes of decompensation lasting for extended duration.” Id. The
court “conclude[d] the ALJ properly evaluated the medical source evidence.” Id.
The Court adopts the reasoning of these unpublished opinions as persuasive. The ALJ’s
discussion of Ms. Rush’s treatment records is extensive and substantial evidence supports his
finding that Dr. Hall’s opinion is undermined by his own clinical findings and prescribed course
of treatment. AR 509-10.
3.
Neuropsychological testing
The ALJ’s final reason for assigning Dr. Hall’s opinion limited weight involves another
inconsistency with the record as a whole. Dr. Hall’s MRFCA in 2016 assigned Ms. Rush
“marked” limitations in her ability to understand and remember instructions, both detailed and
simple. AR 510. Neuropsychological testing, however, revealed in 2010 and 2017 that Ms. Rush
“was functioning in the average range of intellectual ability, and performed in the average range
of the Wechsler Memory Scale-Revised, indicating no major memory problems.” AR 510; see
AR 314-22 (2010 testing report); AR 1312-23 (2017 testing report).
26
Ms. Rush does not specifically address this reason the ALJ gave for his rejection of Dr.
Hall’s opinion. She asserts elsewhere in her brief, however, that the results of the 2010 testing,
performed by Dr. Barbara Koltuska-Haskin, Ph.D., were “invalid” because Ms. Rush was
“faking good,” likely because CYFD ordered the test and Ms. Rush did not want to lose child
custody. Doc. 19 at 13 & n.10. It is true that Dr. Koltuska-Haskin found, with respect to the
personality test she administered to Ms. Rush, that “[i]t was a so-called ‘faking good’ profile,
which indicates that she was generally denying symptoms and problems and was attempting to
appear better off psychologically than was, in fact, the case.” AR 319. “This is probably related
to CYFD involvement in her case.” Id. The memory test administered by Dr. Koltuska-Haskin,
however, was not subject to any finding of invalidity. AR 318-19 (“Ms. Rush performed in the
average range on the Wechsler Memory Scale-Revised (WMS-R), which indicates no major
memory problems. Her reported ‘difficulty remembering’ is probably related to her
compromised attention/concentration skills compounded by emotional problems.”). Thus, Dr.
Koltuska-Haskin’s neuropsychological testing, which revealed no memory problems, remains
substantial evidence supporting the ALJ’s decision. Furthermore, Ms. Rush does not offer any
arguments to disregard the 2017 test results. See Doc. 19 at 14; AR 1317 (memory skills were
“generally intact” and “within the expected range”).
As the Commissioner points out, “an ALJ may consider other medical opinion evidence
in rejecting the opinion of a treating physician.” Doc. 26 at 19 (citing Eggleston v. Bowen, 851
F.2d 1244, 1247 (10th Cir. 1988)); see also Langley v. Barnhart, 373 F.3d 1116, 1122 (10th Cir.
2004) (inconsistency with “other substantial evidence in the record” is a “facially valid reason”
for not according controlling weight to a treating physician’s opinion); Romo v. Comm’r, Soc.
Sec. Admin., 748 F. App’x 182, 186 (10th Cir. 2018) (“It is true that an ALJ should, in general,
27
give greater weight to the opinion of a treating physician than to that of a consultant or nonexamining physician, but in appropriate circumstances, opinions from State agency medical and
psychological consultants may be entitled to greater weight than the opinions of treating or
examining sources” based on the “complete case record” (internal alterations, citations, and
quotation marks omitted)). Combined with the ALJ’s other stated reasons, the Court affirms the
ALJ’s assignment of little weight to Dr. Hall’s opinion.
C.
The ALJ Properly Weighed the Opinion of Therapist Stacey Maggard, LCSW.
Ms. Rush’s final argument contests the ALJ’s treatment of the opinion of her therapist.
Stacey Maggard, a licensed clinical social worker (“LCSW”), completed medical assessments of
Ms. Rush’s ability to do work-related activities dated January 5, 2016 and October 18, 2017. In
each, she found that Ms. Rush suffers from limitations in all areas of mental functioning
(understanding and memory; sustained concentration and persistence; social interaction; and
adaptation). AR 1266-67, 1497-98. Her assessment included a few slight, some moderate, and
mostly marked limitations. Id. The ALJ assigned these opinions “limited weight” because “her
opinion regarding functional limitations is not consistent with other evidence.” AR 510. The ALJ
noted, in language echoing his rejection of Dr. Hall’s opinion, that LCSW Maggard assigned Ms.
Rush “marked” limitations in her ability to understand and remember instructions, but
neuropsychological testing in 2010 and 2017 revealed that Ms. Rush’s memory and intellectual
abilities are within the average range. AR 510.
LCSW Maggard is an “other medical source.”11 The Administration’s regulations
11
For claims filed before March 27, 2017, “other medical sources” are defined as nurse
practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors,
audiologists, and therapist. SSR 06-03p, 2006 WL 2329939, at *2; SSR 96-2p, 2017 WL
3928298. “Acceptable medical sources” are licensed physicians, licensed or certified
28
contemplate the use of information from “other sources,” both medical and non-medical, “to
show the severity of an individual’s impairment(s) and how it affects the individual’s ability to
function.” Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007) (citing 20 C.F.R. § 416.902);
see SSR 06-03p, 2006 WL 2329939, at *2. An ALJ is required to explain the weight given to
opinions from other medical sources and non-medical sources who have seen a claimant in their
professional capacity, “or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.” SSR 06-03p,
2006 WL 2329939, at *6; Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012). “In
the case of a nonacceptable medical source like [Ms. Maggard], the ALJ’s decision is sufficient
if it permits [the court] to ‘follow the adjudicator’s reasoning.’” Keyes-Zachary, 695 F.3d at
1164 (quoting SSR 06-03p, 2006 WL 2329939, at *6).
Ms. Rush argues that the ALJ may not disregard LCSW Maggard’s opinion on the basis
that she is not an “acceptable medical source.” Doc. 19 at 22-23. The Commissioner contends
that the ALJ merely recognized the category the opinion belongs in and did not reject LCSW
Maggard’s opinion on the sole basis that she is not a physician. Doc. 26 at 20. The Court agrees
with the Commissioner. The ALJ recognized that LCSW Maggard is an “other medical source,”
and cited inconsistencies with other evidence as his reason for the weight given to her opinion
(citing a specific example related to neuropsychological testing). AR 510. The ALJ’s finding is
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists. SSR 06-03p, 2006 WL 2329939, at *1; SSR 96-2p, 2017 WL 3928298.
For claims filed on or after March 27, 2017, all medical sources can provide evidence that is
categorized and considered as medical opinion evidence. See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017).
29
further supported by his lengthy summary of the entire medical record. AR 501-11. In relevant
part, the ALJ concluded that evidence showed that
the claimant has not experienced a seizure since 2006, even though she stopped
taking Keppra on her own; physical examinations since 2008 that have shown no
neurological deficits and have generally been unremarkable, apart from acute but
temporary problems after she injured her left ankle and later her right heel;
neuropsychological testing in 2010 and 2017 showing intellectual functioning in
the average range and performance in the average range of the Wechsler Memory
Scale-Revised, indicating no major memory problems; Dr. Hall’s progress notes
consistently showing intact memory, attention, and concentration; the testimony
of medical expert Dr. Goldstein that the claimant can perform light work with
seizure precautions; and the testimony of psychiatrist Dr. Jonas regarding the
claimant’s mental capacities.
AR 511.12
In her motion, Ms. Rush does not dispute that the ALJ identified inconsistencies between
LCSW Maggard’s opinion and other medical evidence in the record. Ms. Rush merely argues
that LCSW Maggard’s opinion is consistent with the opinions of Dr. Walker, Dr. Hall, and Dr.
Russo. Doc. 19 at 24-25. But as discussed above, the relevant opinion of Dr. Walker is not that
Ms. Rush has a host of “moderate limitations” which would prevent her from doing unskilled
work. His opinion is that Ms. Rush “can understand, remember, and carry out simple
instructions, make simple decisions, attend and concentrate for two hours at a time, interact
adequately with coworkers and supervisors, and respond appropriately to changes in a routine
work setting.” AR 288. The ALJ gave “great weight” to this opinion and, as discussed above,
either incorporated every one of these restrictions into his RFC or developed an even more
restrictive limitation. Also as discussed above, Dr. Hall’s functional limitation assessment was
12
Procedurally, the ALJ is not necessarily required to discuss this evidence on the same page or
in the same paragraph that he discusses LSCW Maggard’s opinion. Webb v. Comm’r, Soc. Sec.
Admin., 750 F. App’x 718, 721 (10th Cir. 2018) (“relying on those other medical opinions,
which are all discussed earlier in the decision (and thus are apparent from the ALJ’s decision
itself), does not constitute an impermissible post hoc justification”).
30
internally inconsistent, unsupported by Dr. Hall’s own treatment records, and unsupported by
other evidence of record. The ALJ was not required to rely on it.
In contrast, the record contains substantial evidence that contradicts LCSW Maggard’s
opinion: the opinions of state agency consultants; clinical notes from the treating psychiatrist;
live testimony from consulting physicians appearing at the hearing before the ALJ; and objective
neuropsychological testing. AR 501-11. Because it is inconsistent with this evidence of record,
the ALJ committed no error in assigning limited weight to LCSW Maggard’s opinion. See
Keyes-Zachary, 695 F.3d at 1164-65 (contradictory opinion evidence from an acceptable medical
source “alone” justifies rejection of a non-acceptable medical source); SSR 06-03, 2006 WL
2329939, at *1 (Aug. 9, 2006) (designation as a non-acceptable medical source “may justify”
giving an opinion of an acceptable medical source “greater weight”); Luttrell v. Astrue, 453 F.
App’x 786, 791 (10th Cir. 2011) (“extensive cognitive and psychological testing” performed by
an acceptable medical source is “more probative” than a counselor’s assessment).
IV.
Conclusion
For the reasons stated above, Ms. Rush’s Motion to Reverse and Remand for a Rehearing
With Supporting Memorandum (Doc. 19) is DENIED.
_____________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge
Presiding by Consent
31
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