Osborn v. Social Security Administration

Filing 25

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

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

EVELYN OSBORN,
Plaintiff,
v.

CIV 15-1069 KBM

CAROLYN W. COLVIN,
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
to Agency for Rehearing with Supportive Memorandum (Doc. 18) filed on May 4, 2016.
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. 5, 10. Having
considered the record, submissions of counsel, and relevant law, the Court finds
Plaintiff’s motion is well-taken and will be granted.
I.

Procedural History
On September 22, 2011, Ms. Evelyn Osborn (Plaintiff) protectively filed

applications with the Social Security Administration for Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social
Security Act. Administrative Record1 (AR) at 245-58. Plaintiff alleged a disability onset

1

Documents 15-1 through 15-19 comprise the sealed Administrative Record. See Doc. 15. The Court
cites the Administrative Record’s internal pagination, rather than the CM/ECF document number and
page.

date of March 15, 2008. AR at 245, 253. Disability Determination Services determined
that Plaintiff was not disabled both initially (AR at 119-36) and on reconsideration (AR at
137-66). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the
merits of her SSI application. AR at 184-86.
Both Plaintiff and a vocational expert (VE) testified during the de novo hearing.
See AR at 55-95. ALJ Michelle K. Lindsay issued an unfavorable decision on December
23, 2013. AR at 35-54. Plaintiff submitted a Request for Review of Hearing
Decision/Order to the Appeals Council (AR at 34), which the council denied on May 28,
2015 (AR at 7-10). 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. § 404.1505(a). The Commissioner must use a
five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§§ 404.1520(a)(4), 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

2

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 §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv);
see also Grogan v. 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. §404.1545(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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
At Step One of the process,2 ALJ Lindsay found that while Plaintiff is currently
working part-time as a middle school lunch room monitor, her earnings of approximately
$324/month do not reach substantial gainful activity levels. AR at 41. The ALJ found,
therefore, that Plaintiff had not engaged in substantial gainful activity since her alleged
onset date, March 15, 2008. AR at 41 (citing 20 C.F.R. §§ 404.1571 et seq., 416.971
et seq.). At Step Two, the ALJ concluded that Plaintiff “has the following severe
impairments: history of herniated discs in cervical spine, status-post fusion; history [of]
carpal tunnel syndrome, status-post surgical release bilaterally; diabetes mellitus, and

2

Before engaging in the five-step analysis, ALJ Lindsay noted that Plaintiff filed an application for DIB on
April 13, 2010, which was denied initially and on reconsideration. AR at 38. Plaintiff did not pursue the
claim further. AR at 38. The ALJ found that, under 20 C.F.R. §§ 404.981 and 404.987-89, there is no
basis for reopening the previous decision. AR at 38. Consequently, Plaintiff is unable to claim disability
prior to the final decision date of November 22, 2010. AR at 38.

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hypertension . . . .” AR at 41 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The ALJ
found that Plaintiff’s chronic cholecystitis and cholelithiasis without biliary obstruction,
fatty liver disease, and obesity did not “have the requisite limiting effects on [Plaintiff’s]
ability to perform basic work activities” and were non-severe impairments. AR at 41.
And while the Plaintiff alleged “limitations due to shoulder and back conditions,” the ALJ
noted “the record is devoid of any such documented conditions[,] ongoing symptoms[,]”
or diagnoses. AR at 43. Thus, the ALJ found that such limitations were not medically
determinable. AR at 43.
The ALJ also noted that while the record evidence “supports [diagnoses] of
depression and anxiety,” the treatment has been conservative, Plaintiff “has received no
ongoing counseling or psychiatric care with no more than basic medication
management[,]” and the conditions appear to be “more situational than persistent.” AR
at 41 (citing AR at 535-66, 645). The ALJ found that neither ongoing treatment records
nor consultative examinations demonstrated significant psychological or cognitive
abnormalities, and Plaintiff is frequently non-compliant with her medications. AR at 41
(citing AR at 382-91, 523-25, 535-67, 569-81, 586-89, 595-607, 640-49, 657-79).
Finally, the ALJ considered the fact that while Plaintiff “originally alleged significant
mental problems, at the time of the hearing, she had no mental complaints at all” and
“testified that going out and going to work was her ‘social-time.’” AR at 42. In the ALJ’s
opinion, “[t]here seems to be no evidence of any mental impairment-related functional
limitations, based on [Plaintiff’s] own testimony.” AR at 42.
In making her determination regarding Plaintiff’s mental impairments, ALJ
Lindsay considered the “paragraph B” criteria – “four broad functional areas set out in

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the disability regulations for evaluating mental disorders . . . .” AR at 42 (citing 20 C.F.R.
Part 404, Subpart P, Appx. 1). The ALJ found that Plaintiff has no limitations in either
the first functional area (activities of daily living) or in the second functional area (social
functioning). AR at 42. Plaintiff has a mild limitation in the third functional area
(concentration, persistence or pace). AR at 42. The ALJ found that Plaintiff has
experienced no episodes of decompensation of extended duration, because there is no
evidence of hospitalization related to Plaintiff’s mental conditions. AR at 42. The ALJ
ultimately found that Plaintiff’s mental impairments are non-severe, because they cause
no more than mild limitations in the first three functional areas, and there were no
episodes of decompensation of extended duration in the fourth area. AR at 42 (citing 20
C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)).
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 43 (citing 20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). 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 symptoms are not
entirely credible . . . .” AR at 44. The ALJ considered the evidence of record as well as
the opinions of Plaintiff’s treating physician, the consultative psychologist and
physicians, and Plaintiff’s sisters and brother. AR at 44-48. Ultimately, the ALJ found
that Plaintiff “has the residual functional capacity to perform the full range of light work
as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b).” AR at 43.

5

ALJ Lindsay concluded that Plaintiff is able to perform her past relevant work as
an educational assistant, which “does not require the performance of work-related
activities precluded by” Plaintiff’s RFC. AR at 48 (citing 20 C.F.R. §§ 404.1565,
416.965). The ALJ ultimately determined that Plaintiff “has not been under a disability,
as defined in the Social Security Act, [since] March 15, 2008 . . . .” AR at 49 (citing 20
C.F.R. §§ 404.1520(f), 416.920(f)).
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
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)).

6

“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 that the ALJ failed to properly evaluate the opinions and

statements of (1) treating physician Ann S. Mercer, M.D.; (2) consultative psychologist
Michael R. Pitts, Psy. D.; (3) consultative examining physician Carlos Pastrana, M.D.;
(4) consultative nonexamining physician Elizabeth Chiang, M.D.; and (5) Plaintiff’s
sisters and brother. Doc. 18 at 4.
A.

Treating Physician Ann S. Mercer, M.D.

Plaintiff first argues that the ALJ improperly considered the opinion of Plaintiff’s
treating physician, Dr. Ann Mercer. Id. at 8–12. Plaintiff presents two main points of
contention: first, Plaintiff contends it was error for the ALJ to find that Dr. Mercer’s
opinion was unsupported by medical evidence or inconsistent with substantial evidence
in the record; and second, Plaintiff alleges that the ALJ did not make her findings
sufficiently clear. Id.
1.

ALJs must follow a two-step inquiry when evaluating a treating
physician’s opinion.

An ALJ must consider all medical opinions found in the record. Padilla v. Colvin,
No. CV 14-495 CG, 2015 WL 10383109, at *4 (D.N.M. June 29, 2015) (citing 20 C.F.R.

7

§§ 404.1527(b), 416.927(b)). “Medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about” a
plaintiff’s impairments. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An opinion from a
treating physician is generally entitled to more weight than either an examining or an
agency physician. Padilla, 2015 WL 10383109, at *4 (citing Robinson v. Barnhart, 366
F.3d 1078, 1084 (10th Cir. 2004) (internal citations omitted)).
“The ALJ should accord opinions of treating physicians controlling weight when
those opinions are well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record;
this is known as the ‘treating physician rule.’” Id. (citing 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal
citations omitted)). “A treating physician’s opinion is accorded controlling weight
because the treating physician has a ‘unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations.’” Id. (quoting Doyal, 331
F.3d at 762 (internal quotation omitted, alteration in original)).
Where the “treating physician’s opinion is not supported by medical evidence or
consistent with the record,” id. (citation omitted), it is “still entitled to deference and must
be weighed using all of the factors provided in 20 C.F.R. [§§] 404.1527 and 416.927.’”
Robinson, 366 F.3d at 1082 (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003) (quoting Soc. Sec. Ruling, SSR 96-2p, Policy Interpretation Ruling Titles II &
XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188,
at *4 (July 2, 1996))). The factors include:

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(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported
by relevant evidence; (4) consistency between the opinion and the
record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought
to the ALJ's attention which tend to support or contradict the opinion.
Id. (quoting Watkins, 350 F.3d at 1300 (internal quotations omitted)). “When evaluating
any medical opinion in the record, the ALJ must give good reasons – reasons that are
‘sufficiently specific to make clear to any subsequent reviewers’ – for the weight that
[she] ultimately assigns to” those opinions. Padilla, 2015 WL 10383109, at *4 (quoting
Langley, 373 F.3d at 1119 (internal quotations omitted)). The ALJ’s “determination, like
all of [her] findings, must be supported by substantial evidence.” Id.
2.

The ALJ’s analysis is deficient at both steps of the two-step
treating physician inquiry.

ALJ Lindsay concluded that Dr. Mercer’s opinion was “not consistent with her
own ongoing treatment records or the evidence of record as a whole, which shows little
to no objective findings of significant limitations.” AR at 47. The ALJ specifically noted
that Dr. Mercer’s “findings are inconsistent with the rather unremarkable findings during
the consultative examination and [Plaintiff’s] original admission of being able to lift 10-20
pounds.” AR at 47 (citing AR at 324-32, 590-94). The ALJ did not, however, cite to a
later self-report from Plaintiff, wherein she states that she can lift 10 pounds or less. AR
at 348. Plaintiff repeated this assertion in her examination with the consultative state
agency physician, Dr. Pastrana (which the ALJ said was “unremarkable”). AR at 592.
Beyond those two alleged discrepancies, the ALJ failed to enunciate how Dr.
Mercer’s opinion was inconsistent with the record evidence. “It may be possible to

9

assemble support for this conclusion from parts of the record cited elsewhere in the
ALJ's decision, but that is best left for the ALJ [herself] to do in the proceedings on
remand.” See Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011).
The Court finds that the ALJ also failed to sufficiently discuss the six deference
factors at the second step of the inquiry. Of the six factors, it is arguable, as discussed
above, that the ALJ gave scant attention to the fourth factor – consistency between the
opinion and the record as a whole. ALJ Lindsay’s cursory evaluation of Dr. Mercer’s
opinion, however, did not adequately address any of the six factors in depth. And while
the ALJ cited to Dr. Mercer’s treatment records generally in other parts of the opinion
(see AR at 41, 45), she did not cite with specificity to any records that may or may not
have supported the doctor’s opinion.3 It is not enough for the ALJ to generally refer to
“the evidence of record as a whole” (AR at 47), as that leaves the Court to guess at
what evidence she relied on in making that finding. See Drapeau v. Massanari, 255
F.3d 1211, 1214 (10th Cir. 2001) (finding where “an ALJ does not provide any
explanation for rejecting medical evidence, [courts] cannot meaningfully review the
ALJ’s determination”) (citing Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)
(“holding ‘[i]n the absence of ALJ findings supported by specific weighing of the
evidence, [courts] cannot assess whether relevant evidence adequately supports the
ALJ’s conclusion’”); Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (“holding ALJ’s

3

On remand, the ALJ should take care to explain whether the following records or treatment notes
support or detract from Dr. Mercer’s opinion: the referral to psychiatrist Harold E. Alexander, Jr., M.D.
(see AR at 394-98, 630-39); Plaintiff’s report to Dr. Pastrana that she could no longer make jewelry or
crafts (AR at 591); and Plaintiff’s 2011 self-report that clothing must be loose on her left arm due to nerve
damage (AR at 326). These latter two records directly contradict findings the ALJ noted. See AR at 46.
The ALJ should also consider the records Plaintiff submitted after ALJ Lindsay issued her opinion, which
include records related to a hospitalization due to suicidal ideation. AR at 12-31.

10

listing of factors he considered was inadequate when court was ‘left to speculate what
specific evidence led the ALJ to [his conclusion]’”)).
While the six deference factors might ultimately have supported the ALJ’s
decision to give the opinion “little weight,” this Court “cannot simply presume the ALJ
applied the correct legal standards in considering [Dr. Mercer’s] opinion” in the absence
of express analysis. See Robinson, 366 F.3d at 1083 (quoting Watkins, 350 F.3d at
1301). ALJ Lindsay’s “apparent failure to consider any factor” in depth “makes the ALJ’s
reasoning insufficient.” See Andersen v. Astrue, 319 F. App’x 712, 722 (10th Cir. 2009).
On remand, the ALJ should more closely examine these factors and, if the ALJ decides
to give Dr. Mercer’s opinions less than controlling weight, should support that decision
with more specific findings and references to the record.4
B.

Consultative Psychologist Michael R. Pitts, Psy. D.

Plaintiff alleges that the ALJ failed to properly consider the opinion of consultative
psychologist, Michael R. Pitts, Psy. D., who examined Plaintiff on April 2, 2012. Doc. 18
at 13-14; see also AR at 587-89. Under “Diagnostic Impressions,” Dr. Pitts diagnosed
Dysthymic Disorder and Rule-Out Anxiety Disorder, NOS. AR at 589. He opined that
her prognosis is fair. AR at 589. He further stated:
She is depressed and needs comprehensive mental health treatment
but has no medical insurance. She is able to manage funds. Moderate
impairment in concentration is reflected by the mental status exam. She
4

Plaintiff also argues that it was improper for the ALJ to consider the fact that Plaintiff used to work for Dr.
Mercer as a factor in weighing Dr. Mercer’s opinion. Doc. 18 at 10-11. Plaintiff does not cite to relevant
case law, but the Court presumes Plaintiff would support her position with the rule that an ALJ “may reject
a treating physician’s opinion outright only on the basis of contradictory medical evidence and not due to
his or her own credibility judgments, speculation or lay opinion.” Langley, 373 F.3d at 1121 (quoting
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (internal quotations omitted)). On remand, the
ALJ must ensure that, if Dr. Mercer’s opinion merits less than controlling weight, the ALJ supports that
finding with specific, legitimate reasons after considering the six deference factors. See Frey v. Bowen,
816 F.2d 508, 513 (10th Cir. 1987) (citation omitted); Padilla, 2015 WL 10383109, at *5.

11

derails at times. There is no evidence of memory impairment. She is
cognitively able to follow multistep directions up to a moderate level of
complexity but her impaired concentration is likely to interfere with
following directions at times. Persistence is impaired by pain. This
should be evaluated by a physician. There is no evidence of
interpersonal impairment. Ability to adapt to changes on the job would
be impaired only by physical or pain symptoms.
AR at 589. The ALJ gave Dr. Pitts’ opinion significant weight “as to [Plaintiff’s] ability to
perform multi-step tasks and directions,” but she gave little weight to his opinion that
Plaintiff “might have some difficulties concentrating.” AR at 47. The ALJ explained that
this latter part of Dr. Pitts’ opinion “is based on [Plaintiff’s] own testimony (or really lack
thereof), that she was not having any additional issues other than her neck, arm, and
hand pain.” AR at 47. “Moreover,” the ALJ noted, Plaintiff’s “own reported activities
support mild limitations in concentration.” AR at 47 (citing AR at 324-32).
Plaintiff argues it was improper for the ALJ to “rely solely on portions of the
record that support the decision denying benefits, and ignore evidence that is favorable
to [Plaintiff’s] claim that she is disabled.” Doc. 18 at 13 (citing Hardman v. Barnhart, 362
F.3d 676, 681 (10th Cir. 2004) (internal citation omitted)). The Commissioner asserts
that it was appropriate to give this part of Dr. Pitts’ opinion little weight, because it was
“based on Plaintiff’s own subjective reports, which the ALJ had already deemed
unreliable.” Doc. 22 at 12 (citing AR at 47, 588-89; White v. Barnhart, 287 F.3d 903, 907
(10th Cir. 2001) (finding that the ALJ appropriately discounted a treating physician’s
opinion where the doctor’s “assessment was based on [the plaintiff’s] subjective
assertions rather than objective medical evidence.”)).
The Court disagrees that Dr. Pitts’ opinion regarding limitations on concentration
was solely based on Plaintiff’s own reports of pain. Dr. Pitts noted in the “Mental Health

12

Exam and Behavioral Observations” section that Plaintiff made “three errors on reverse
serial sevens due to impaired concentration.” AR at 588-89. Dr. Pitts expressly noted
that the “[m]oderate impairment in concentration” that he found was “reflected by the
mental status exam” during which he observed that Plaintiff “derails at times.”5 AR at
589. It appears, therefore, that Dr. Pitts’ was based not only on Plaintiff’s reports of pain
but on his observation when conducting the mental status exam. Moreover, one could
argue that Dr. Pitts may have attributed limitations in concentration to Plaintiff’s anxiety
and depression. It is unfortunate that Dr. Pitts did not more clearly lay out the basis of
his findings and conclusions. See AR at 587-89.
In her reply, Plaintiff quotes Social Security Ruling 96-7p for the proposition that
“a finding that an individual’s statements are not credible, or not wholly credible, is not in
itself sufficient to establish that the individual is not disabled. All of the evidence in the
case record, including the individual’s statements, must be considered before a
conclusion can be made about disability.” Doc. 23 at 2 (quoting Soc. Sec. Ruling, SSR
96-7p, Titles II & XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, 1996 WL 374186, at *5 (July 2, 1996)).
The relevant question for the Court, then, is whether the ALJ considered all of the
relevant evidence in determining that Plaintiff has only a mild limitation in concentration,

5

Otherwise, nothing from Dr. Pitts’ examination appears directly relevant to limitations on
Plaintiff’s concentration. In fact, Dr. Pitts found that Plaintiff’s speech was normal, she was
“outgoing with good social skills[,]” she was “oriented times four and answer[ed] four of four
information questions correctly[,]” she was “able to calculate reverse serial threes with no
errors[,]” her “[i]mmediate recall, delayed recall, and distant recall are all intact[,]” and she was
“able to abstract common proverbs and abstract via similarities.” AR at 588. Overall, Plaintiff
gave Dr. Pitts a detailed background about herself and her health issues, and Dr. Pitts recorded
no other observations about impairments in Plaintiff’s concentration. AR at 587-89.

13

persistence or pace, and whether that decision is supported by substantial evidence.
AR at 42.
In support of her finding that Plaintiff has a mild limitation in the area of
concentration, persistence or pace, the ALJ noted that
[t]he evidence in the record, including the testimony of [Plaintiff] at the
hearing, shows that [she] is, for the most part, able to sustain focus,
attention and concentration long enough to permit the timely and
appropriate completion of tasks commonly found in work settings.
[Plaintiff] drives, handles her own finances, needs no reminders for
personal care or medications, can follow both written and verbal
instructions well, and reported no significant difficulties in handling
stress or changes in routine.
AR at 42 (citing AR at 324-32). The ALJ discounted Dr. Pitts’ opinion due to her belief
that he based his findings (at least in part) on Plaintiff’s self-reports of pain. AR at 47.
Yet, Dr. Pitts’ reference to Plaintiff’s self-report of pain was in relation to her limitations
in persistence, not in concentration. AR at 589 (“Persistence is impaired by pain.”).
Dr. Mercer’s answer to a question on the Medical Source Statement also
contradicts the ALJ’s decision. In response to the question: “[i]s it medically reasonable
to expect that this patient’s ability to maintain attention and concentration on work tasks
throughout an 8 hour day is significantly compromised by pain[,] prescribed medication
or both?,” Dr. Mercer answered “yes.” AR at 584 (cited by ALJ, AR at 47). The Court
finds it significant, however, that this portion of Dr. Mercer’s opinion was directly
contrary to other evidence of record. Most notably, Plaintiff’s own responses to the
Function Report in “Section C – Information About Abilities,” where Plaintiff was directed
to “[c]heck any of the following items your illness, injuries, or conditions affect,” Plaintiff
did not mark the box for concentration either time she completed this form. AR at 330

14

(signed Nov. 12, 2011; cited by ALJ, AR at 44), 348 (signed Mar. 7, 2012). Plaintiff does
not offer, nor can the Court find, any evidence that Plaintiff complained about problems
concentrating to any of her physicians. There are no records wherein Dr. Mercer
expressed concerns about Plaintiff having difficulty maintaining attention and/or
concentration other than her referenced response on the Medical Source Statement.
See, e.g., AR at 382-91, 459-97, 535-66, 595-607, 640-49, 657-79 (cited by the ALJ
throughout opinion). Nor did Dr. Harold E. Alexander, Jr., M.D., a psychiatrist who saw
Plaintiff on three different occasions, ever mention impaired concentration as a concern.
AR at 394-98.
The issue is a close one, and on remand, the ALJ should clarify her findings on
Plaintiff’s limitations on concentration, persistence and pace. The ALJ may wish to
develop the record with respect to this issue.
C.

Consultative Examining Physician Carlos Pastrana, M.D.

Plaintiff asserts that the ALJ failed to properly evaluate the opinion of consultative
examining physician Carlos Pastrana, M.D. Doc. 18 at 14-15. Specifically, Plaintiff
contends that while the ALJ discussed Dr. Pastrana’s opinion, she failed to state the
weight she gave to the opinion. Id. at 15 (citing 20 C.F.R. §§ 404.1527, 416.927; Soc.
Sec. Ruling, SSR 96-6p, Policy Interpretation Ruling Titles II & XVI: Consideration of
Administrative Findings of Fact by State Agency Medical and Psychological Consultants
and Other Program Physicians and Psychologists at the Administrative Law Judge and
Appeals Council Levels of Administrative Review; Medical Equivalence, 1996 WL
374180 (July 2, 1996)). The Commissioner responds that the ALJ “appropriately
considered Dr. Pastrana’s findings that Plaintiff had only a slight decrease in range of

15

motion of the low back, full range of motion of the neck, and otherwise normal physical
findings.” Doc. 22 at 13 (citing AR at 45, 592; 20 C.F.R. § 404.1527(c)(4)).
Plaintiff is correct that the ALJ summarized Dr. Pastrana’s findings from his
examination, but failed to specify what weight she attributed to those findings. The
parties did not discuss whether this was harmless error. See Mays v. Colvin, 739 F.3d
569, 578–79 (10th Cir. 2014) (citation omitted) (“[A]n ALJ’s failure to weigh a medical
opinion involves harmless error if there is no inconsistency between the opinion and the
ALJ’s assessment of residual functional capacity.”). On remand, the ALJ should state
what weight is given to Dr. Pastrana’s opinion per the regulations. See 20 C.F.R. §§
404.1527, 416.927.
D.

Consultative Non-examining State Agency Physician Elizabeth
Chiang, M.D.

Plaintiff alleges that the ALJ failed to properly consider the consultative nonexamining state agency physician’s opinion of Dr. Elizabeth Chiang, M.D. Doc. 18 at 8.
Plaintiff notes that at the reconsideration level, Dr. Chiang, who “considered the opinion
of Dr. Pitts” (id. at 14), “found [Plaintiff’s] anxiety disorder to be severe, resulting in a
moderate limitation in concentration, persistence or pace, and opined that [Plaintiff]
would be limited to work involving detailed but not complex instructions.” Id. at 8 (citing
AR at 144-46). Plaintiff asserts that “[t]he ALJ disregarded both Dr. Pitts[’] and Dr.
Chiang’s findings because she found Dr. Pitts’ opinion to be based on [Plaintiff’s]
testimony.” Id. at 14. Plaintiff contends that the Tenth Circuit has held that this
reasoning is “insufficient . . . to discredit the consultative physicians’ opinions.” Id. (citing
Thomas v. Barnhart, 147 F. App’x 755, 759-60) (10th Cir. 2005)).

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The Court has already found that the ALJ may wish to develop the record with
respect to Dr. Pitts’ opinion. A reevaluation of Dr. Pitts’ opinion may also change the
ALJ’s evaluation of Dr. Chiang’s opinion. The ALJ should revisit this issue on remand.
E.

Third-Party Statements of Plaintiff’s Sisters and Brother

Plaintiff argues that the ALJ did not properly consider the opinions from her
siblings. Doc. 18 at 15–16. Specifically, Plaintiff argues that “[t]he reasons the ALJ gave
to reject the third party statements goes [sic] against the policy of having third party
statements evaluated.” Id. at 16. The Commissioner did not respond to this argument.
See Doc. 22.
ALJs are required to consider all relevant evidence when making a determination
of disability. See Holcomb v. Astrue, 389 F. App’x 757, 760 (10th Cir. 2010) (citing
Soc. Sec. Ruling, SSR 06-03p, Titles II & XVI: Considering Opinions and Other
Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims;
Considering Decisions on Disability by Other Governmental and Nongovernmental
Agencies, 2006 WL 2329939 (Aug. 9, 2006)). The regulations contemplate the
consideration of evidence from all sources, both medical and non-medical, including
“[s]pouses, parents and other caregivers, siblings, other relatives, friends, neighbors,
clergy, and employers.” SSR 06-03p, at *2 (emphasis added). “Information from these
‘other sources’ cannot establish the existence of a medically determinable impairment.”
Id. It may, however, “provide insight into the severity of the impairment(s) and how it
affects the individual’s ability to function.” Id.
In evaluating the opinion evidence from Plaintiff’s siblings, ALJ Lindsay stated
that she considered the opinions from Plaintiff’s “two sisters and brother” to help her

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“understand some of the severity of [Plaintiff’s] various symptoms over time.” AR at 4748 (citing AR at 360-63). She gave the opinions “little weight with respect to assessing
[Plaintiff’s] current functional limitations because of their high degree of subjectivity, and
their lack of medically acceptable standards.” AR at 48.
“In the Tenth Circuit, an ALJ is not required to make specific, written findings
regarding each lay witness’s opinion when the written decision reflects that the ALJ
considered the testimony.” Croley v. Colvin, Civ. No. 12-1101-JWL, 2013 WL 615564, at
*5 (D. Kan. Feb. 19, 2013) (citing Blea v. Barnhart, 466 F.3d 903, 914-15 (10th Cir.
2006) (internal citations omitted); Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996)).
Instead, “[t]he decision must reflect that the ALJ included the opinion in [her]
consideration of disability, but [she] need not specify the weight accorded to that
opinion. Nonetheless [she] may do so in explaining the rationale for [her] decision.” Id.
at *6.
As is required by the rules, it is clear that the ALJ considered the non-medical
opinions in her determination of the severity of Plaintiff’s “current functional limitations.”
AR at 48. She also explained that she gave the opinions little weight, which is not
required under Tenth Circuit precedent. Croley, 2013 WL 615564, at *6. Plaintiff is
correct that the ALJ did not need to measure the non-medical “other source” opinions
against any “medically acceptable standards.” See SSR 06-03p. Plaintiff did not,
however, cite any authority for the proposition that the ALJ’s statement about the
opinion evidence requires reversal and remand.
The siblings’ statements reiterate Plaintiff’s own testimony. All three siblings
mention the opinion that stress exacerbates Plaintiff’s condition and echo Plaintiff’s own

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complaints of being unable to work consistently due to pain. AR at 360-63; see also AR
at 63-90. Because Plaintiff has not presented any relevant case law to support her
position that the ALJ’s opinion requires reversal on this issue, nor has the Court found
any such authority, Plaintiff’s motion is denied with respect to this issue.
V.

Conclusion
The Court finds that the ALJ failed to apply the correct legal standards in

assessing Dr. Mercer’s and Dr. Pastrana’s opinions. The Court will grant Plaintiff’s
motion and remand to allow the ALJ to conduct the proper two-step analysis with
respect to Dr. Mercer’s opinion, and to specify what weight was given to Dr. Pastrana’s
opinion. The ALJ should also revisit the evaluation of Dr. Pitts’ opinion and consider
developing the record on the issue of Plaintiff’s limitations in the area of concentration,
persistence and pace.
Wherefore,
IT IS ORDERED that Plaintiff’s Motion to Reverse and Remand for a Rehearing
with Supportive Memorandum (Doc. 18) is GRANTED, and a final order pursuant to
Rule 58 of the Federal Rules of Civil Procedure will be entered.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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