Hicks v. Social Security Administration

Filing 25

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
LLOYD HICKS JR.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
MICHAEL J. ASTRUE,1
Commissioner of the Social Security
Administration,
Defendant.

Case No. 12-cv-217-TLW

OPINION AND ORDER
Plaintiff, Lloyd Hicks Jr., pursuant to 42 U.S.C. § 405(g), requests judicial review of the
decision of the Commissioner of the Social Security Administration (“Commissioner”) denying
plaintiff’s application for disability benefits under the Social Security Act, 42 U.S.C. §§ 401 et
seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed
before a United States Magistrate Judge. Any appeal of this order will be directly to the Tenth
Circuit Court of Appeals. Claimant appeals the decision of the Administrative Law Judge
(“ALJ”) and asserts that the Commissioner erred because the ALJ incorrectly determined that
Claimant was not disabled. For the reasons discussed below, the Court REVERSES AND
REMANDS the Commissioner’s decision.
INTRODUCTION
When applying for disability benefits, a plaintiff bears the initial burden of proving that
he or she is disabled. 42 U.S.C. § 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). “Disabled”

1

Pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, the current Acting Commissioner of
the Social Security Administration, is substituted for Michael J. Astrue as Defendant in this
action. No further action need be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 

under the Social Security Act is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment.” 42 U.S.C. §
423(d)(1)(A). A plaintiff is disabled under the Act only if his or her “physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A). Social Security
regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§
404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (setting forth the
five steps in detail). “If a determination can be made at any of the steps that a plaintiff is or is not
disabled, evaluation under a subsequent step is not necessary.” Williams, 844 F.2d at 750.
The role of the court in reviewing a decision of the Commissioner under 42 U.S.C. §
405(g) is limited to determining whether the decision is supported by substantial evidence and
whether the decision contains a sufficient basis to determine that the Commissioner has applied
the correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla, less than preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The Court’s
review is based on the record, and the Court will “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Id. The Court may neither re-weigh the evidence nor
substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if supported
by substantial evidence, the Commissioner’s decision stands. White v. Barnhart, 287 F.3d 903,
908 (10th Cir. 2002).

2

A disability is a physical or mental impairment “that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423 (d)(3). “A physical impairment
must be established by medical evidence consisting of signs, symptoms, and laboratory findings,
not only by [an individual’s] statement of symptoms.” 20 C.F.R. §§ 404.1508, 416.908. The
evidence must come from “acceptable medical sources” such as licensed and certified
psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a).
BACKGROUND
Plaintiff filed three applications, one dated June 9, 2003, one dated November 17, 2003,
and one dated August 27, 2004, for both disability benefits and supplemental security income
benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. (R. 164-67,
739-41, 168-73, 747-50, 174-77, 757-59). The applications were denied initially and upon
reconsideration. (R. 43-45, 74-77, 78-82, 83-87, 746, 756, 765). Plaintiff received one hearing
before the ALJ on February 1, 2006. (R. 858-89). The ALJ denied plaintiff’s claims on March
24, 2006. (R. 46-58). This decision was remanded by the Appeals Council on June 29, 2006. (R.
106-09). Plaintiff received two more hearings before another ALJ; one on March 15, 20072 and
one on August 21, 2007. (R. 817-30). The second ALJ also denied plaintiff’s claims. (R. 59-73).
This decision was also remanded by the Appeals Council on June 5, 2009. (R. 132-36). Plaintiff
received a final hearing before a third ALJ on August 13, 2010. (R. 787-816). By decision dated
September 16, 2010, the third ALJ also found that plaintiff was not disabled. (R. 18-29). On

2

The ALJ wanted to end this hearing for plaintiff to go home and shower, but plaintiff’s attorney
told the ALJ that plaintiff consistently does not bathe. The ALJ subsequently allowed the hearing
to continue, discovered plaintiff had not been to a mental consultative examination, and ordered
that he attend a consultative exam. The August 21, 2007 hearing then addressed plaintiff’s case
with that examination.
3

March 28, 2012, the Appeals Council denied review of the ALJ’s findings. (R. 12-15). Thus, the
decision of the ALJ represents a final decision for the purposes of this appeal. 20 C.F.R. §§
404.981, 416.1481.
The ALJ’s Decision
The ALJ found that plaintiff met the insured status requirements of the Social Security
Act through December 31, 2007, but not after. (R. 23). At step one, the ALJ determined that
plaintiff had not engaged in substantial gainful activity since his alleged onset date of June 2,
2004. Id. At step two, the ALJ found that plaintiff had the severe impairments of major
depression and personality disorder. Id. At step three, the ALJ found that plaintiff’s impairments,
or combination of impairments, did not meet any listing. Id.
The ALJ determined that plaintiff had the Residual Function Capacity (“RFC”) to
perform the full range of work at all exertional levels, but was limited in the complex work tasks
that he can perform while in contact with the general public. (R. 24). At step four, the ALJ found
that plaintiff had the ability to perform his past relevant work. (R. 27). Thus, the ALJ found that
plaintiff had not been disabled since June 2, 2004. (R. 28).
The Medical Evidence
On May 14, 2003, plaintiff was admitted to Grand Lake Mental Health Stabilization
Center. (R. 323). His admission was due to a “suicidal attempt” that occurred while he was
intoxicated. (R. 345). He was discharged on May 20, 2003, and transferred to HOPE Psychiatric
Unit. (R. 322). While at HOPE he was diagnosed with Major Depressive Disorder, severe,
without psychotic features. (R. 345). He was discharged on May 30, 2003. (R. 345).
Plaintiff started seeing Michael Collins, M.D., on July 8, 2003. (R. 469). Dr. Collins
diagnosed him with Major Depressive Disorder, noting that it was moderate, recurrent, and

4

without psychotic features. Id. Dr. Collins also diagnosed him with dysthymia disorder and
polysubstance dependence. Id. Dr. Collins noted that plaintiff had a history of personality
disorder. Id. Plaintiff had a GAF score of 65 at the time of his visit. Id. Dr. Collins prescribed
Lexapro and therapy. Id. Dr. Collins noted that plaintiff had a history of alcohol and drug abuse,
chronic depressive symptoms, and suicidal threats. (R. 467-69). Dr. Collins noted that plaintiff
did not report recent or recurrent suicidal thoughts. Id.
On July 22, 2003, Dr. Collins noted that on a scale of 0-10 (0 = feeling worst ever, and 10
being symptom free), plaintiff felt somewhere between a 3 and 4. (R. 466). Dr. Collins noted that
plaintiff had sleep problems, but he was able to get some continued sleep. Id. On August 21,
2003, Dr. Collins noted that plaintiff’s mood problems continued. (R. 465). On September 4,
2003, Dr. Collins noted that plaintiff was feeling “about the same.” (R. 464). He prescribed
Wellbutrin. Id. On October 16, 2003, Dr. Collins noted mood, irritability, and anger problems.
(R. 463). Plaintiff felt like a 3 on the 0-10 scale. Id. Dr. Collins wrote that plaintiff was a
“complex case.” Id. On January 8, 2004, Dr. Collins noted that plaintiff reported sadness and
poor sleep. (R. 461). On February 30, 2004, Dr. Collins noted that plaintiff complained of
sadness. (R. 454). On March 22, 2004 Dr. Collins noted mood, sleep, and energy problems. (R.
459).
Dr. Collins completed his first of three Medical Source Statements (“MSS”) for plaintiff
on August 10, 2004. (R. 421-27). Under the category titled Understanding and Memory, Dr.
Collins noted that plaintiff was moderately limited in his ability to remember locations and worklike procedures and in his ability to understand and remember simple instructions. (R. 421) He
noted that plaintiff was markedly limited in his ability to understand and remember detailed
instructions. Id. Under the category titled Attention and Concentration, Dr. Collins noted that

5

plaintiff was moderately limited in his ability to perform at a consistent pace without an
unreasonable number or length of rest periods. (R. 421-22). He noted that plaintiff was markedly
limited in his ability to maintain attention and concentration for extended periods to perform
simple tasks, his ability to adhere to a schedule and maintain regular attendance, his ability to
work close to others without being distracted, and his ability to handle normal work stress. Id.
Dr. Collins noted that plaintiff was extremely limited in his ability to maintain attention and
concentration for extended periods to perform detailed tasks. Id. Under the Category titled Social
Interaction, Dr. Collins noted that plaintiff was moderately limited in his ability to interact
appropriately with the public, his ability to work with others without causing distractions, and his
ability to maintain socially appropriate behavior and basic standards of neatness and cleanliness.
(R. 422). Dr. Collins noted that plaintiff was extremely limited in his ability to accept
instructions and criticism from supervisors. Id. Dr. Collins checked the box indicating that
plaintiff could “manage benefits in his or her own best interest.” Id.
On September 30, 2004, Dr. Collins noted sleep and anger problems. (R. 456). On
February 23, 2005, Dr. Collins noted that plaintiff experienced mood and sleep problems. (R.
453).
Dr. Collins completed the second MSS on May 31, 2005. (R. 447-49). Under the
category titled Understanding and Memory, Dr. Collins noted that plaintiff was moderately
limited in his ability to remember locations and work-like procedures and in his ability to
understand and remember simple instructions. (R. 448). He noted that plaintiff was extremely
limited in his ability to understand and remember detailed instructions. Id. Under Attention and
Concentration, Dr. Collins noted that plaintiff was markedly limited in his ability to maintain
attention and concentration for extended periods to perform simple tasks, his ability to adhere to

6

a schedule and maintain regular attendance, and his ability to handle normal work stress. Id. Dr.
Collins noted that plaintiff was extremely limited in his ability to maintain attention and
concentration for extended periods to perform detailed tasks, to work close to others without
being distracted, and to perform at a consistent pace without an unreasonable number or length
of rest periods. Id. Under Social Interaction, Dr. Collins noted that plaintiff was markedly limited
in his ability to interact appropriately with the public, his ability to work with others without
causing distractions, and his ability to maintain socially appropriate behavior and basic standards
of neatness and cleanliness. (R. 447). Dr. Collins noted that plaintiff was extremely limited in his
ability to accept instructions and criticism from supervisors, and he checked the box indicating
that plaintiff could “manage benefits in his or her own best interest.” Id.
Dr. Collins completed the third MSS on November 29, 2005. (R. 475-78). Dr. Collins
noted that plaintiff was extremely limited in every section of every category. Id.
Plaintiff saw Dr. Collins on January 4, 2006. (R. 479). Dr. Collins noted that plaintiff was
not manic or psychotic and was stable on his medication. Id. Throughout the time that Dr.
Collins saw plaintiff, he stated on several occasions that plaintiff’s mood was euthymic to
depressed. (R. 453-96).
Plaintiff was seen regularly at Grand Lake Mental Health Center from 2006 to 2010. (R.
488-512, 523-37, 681-738). During this time, he complained of symptoms of depression. Id.
Plaintiff’s GAF score on January 22, 2007 was 41. (R. 492). On January 23, 2009, his GAF score
was 43. (R. 630). On July 31, 2009, plaintiff had a GAF score of 44. (R. 729). On February 26,
2010, plaintiff had a GAF score of 51. (R. 717). While being treated at Grand Lake Medical
Center, Shirley Chestnut, D.O. was plaintiff’s physician.

7

Dr. Chestnut completed the first of two MSSs on January 29, 2007. (R. 514-15). Under
Understanding and Memory, Dr. Chestnut noted that plaintiff was moderately limited in his
ability to remember locations and work-like procedures and in his ability to understand and
remember simple instructions. Id. She noted that plaintiff was markedly limited in his ability to
understand and remember detailed instructions. Id. Under Attention and Concentration, Dr.
Chestnut noted that plaintiff was moderately limited in his ability to perform at a consistent pace
without an unreasonable number or length of rest periods. Id. Dr. Chestnut noted that plaintiff
was markedly limited in his ability to maintain attention and concentration for extended periods
in order to perform simple tasks, his ability to adhere to a schedule and maintain regular
attendance, his ability to work close to others without being distracted, and his ability to handle
normal work stress. Id. Dr. Chestnut noted that plaintiff was extremely limited in his ability to
maintain attention and concentration for extended periods in order to perform detailed tasks. Id.
Under Social Interaction, Dr. Chestnut noted that plaintiff was moderately limited in his ability
to interact appropriately with the public, his ability to work with others without causing
distractions, and his ability to maintain socially appropriate behavior and basic standards of
neatness and cleanliness. Id. Dr. Chestnut noted that plaintiff was extremely limited in his ability
to accept instructions and criticism from supervisors. Id. Dr. Chestnut checked the box indicating
that plaintiff could “manage benefits in his or her own best interest.” Id.
Plaintiff saw Dr. Chestnut on March 27, 2007. (R. 530). She reported that plaintiff was
still having problems with depression. Id. She decided to increase the amount of Zoloft he was
prescribed and Lunesta was continued. Id. On April 24, 2007, plaintiff saw Dr. Chestnut again
and reported that he was doing fairly well and was not having any severe depression or suicidal
ideation. Id. His treatment was continued. Id.

8

Plaintiff saw Dr. Chestnut on May 22, 2007. (R. 527). She noted that plaintiff reported
feeling “the same.” Id. She decided to discontinue Zoloft. Id.
Plaintiff saw Dr. Chestnut on June 19, 2007. (R. 525). She noted that he continued to
struggle with “some depression.” Id. She decided that his treatment would be continued. Id.
Plaintiff saw Dr. Chestnut on July 17, 2007. (R. 523). Plaintiff reported sleep problems
and mild to moderate depression. Id. Dr. Chestnut decided to discontinue Lunesta. Id. She
prescribed Trazadone for sleep. Id.
Plaintiff saw Dr. Chestnut on August 14, 2007. (R. 536). She noted that plaintiff
continued to report sleeping problems. Id. She prescribed Rozerem, and discontinued his
Trazodone prescription. Id.
Plaintiff saw Dr. Chestnut on September 11, 2007, and reported that he was feeling
“okay.” (R. 577). His visits to Dr. Chestnut on October 9, 2007 and November 6, 2007, were
essentially the same and resulted in no changes to his treatment plan. (R. 574).
Plaintiff saw Dr. Chestnut on December 4, 2007, and reported that he was continuing to
have sleep problems. (R. 568). Id. Dr. Chestnut discontinued Rozerem and prescribed
Amitriptyline. Id.
Plaintiff saw Dr. Chestnut on January 3, January 28, and February 26, 2008, and on all
three occasions reported that he was feeling “about the same.” (R. 566). Dr. Chestnut continued
his treatment plan. Id. Plaintiff saw Dr. Chestnut on March 25, 2008, and reported that he was
doing fairly well on his current medications. (R. 558).
On April 23, 2008, plaintiff was committed to Wagoner Community Hospital after he
barricaded himself in his home with an unloaded gun, demonstrating suicidal behavior. (R. 537).

9

After he was stabilized, plaintiff was prescribed Effexor and Thorazine. (R. 544). He was
discharged on April 29, 2008. (R. 537).
Plaintiff saw Dr. Chestnut on May 6, 2008. (R. 553). She noted that the doctors at
Wagoner Community Hospital made some changes in his medication, and she decided to
continue those medications. Id.
Plaintiff saw Dr. Chestnut on June 12, 2008, while he was living at Souls Harbor, a local
shelter. (R. 552). Plaintiff reported that he was doing fairly well. Id. Dr. Chestnut noted that he
did not have severe depression at the time of the visit. Id. Plaintiff saw Dr. Chestnut on July 10,
2008. (R. 551). Plaintiff reported that he was doing well on his medications and felt “about the
same.” Id. She continued his treatment plan. Id.
Plaintiff saw Dr. Chestnut on August 7, 2009. (R. 737). He reported that he was doing
fairly well. Id. Dr. Chestnut continued his treatment plan. Id. On that same day, she completed
her second MSS. (R. 678-79). Under Understanding and Memory, Dr. Chestnut noted that
plaintiff was moderately limited in his ability to understand and remember simple instructions.
Id. She noted that he was markedly limited in his ability to remember locations and work-like
procedures. Id. Dr. Chestnut also noted that he was extremely limited in his ability to understand
and remember detailed instructions. Id. Under Attention and Concentration, Dr. Chestnut noted
that plaintiff was moderately limited in his ability to adhere to a schedule and maintain regular
attendance. Id. She noted that plaintiff was markedly limited in his ability to maintain attention
and concentration for extended periods to perform simple tasks. Id. Dr. Chestnut noted that
plaintiff was extremely limited in his ability to maintain attention and concentration for extended
periods to perform detailed tasks, his ability to work close to others without being distracted, his

10

ability to perform at a consistent pace without an unreasonable number or length of rest periods,
and his ability to handle normal work stress. Id.
Under Social Interaction, Dr. Chestnut noted that Plaintiff was moderately limited in his
ability to maintain socially appropriate behavior and basic standards of neatness and cleanliness.
Id. She noted that plaintiff was markedly limited in his ability to interact appropriately with the
public, his ability to accept instructions and criticism from supervisors, and his ability to work
with others without causing distractions. Id. Dr. Chestnut wrote in the additional comments
section of the MSS form that “[Plaintiff had a] long-term history of major depressive disorder.
[He is] resistant to therapy and antidepressant medication.” Id. She checked the box indicating
that plaintiff could “manage benefits in his or her own best interest.” Id.
Plaintiff saw Dr. Chestnut on January 22, 2010. (R. 730). Plaintiff did not have any
complaints and reported that his medications were helping. Id.
Plaintiff saw Amykay Cole, Ph.D., for a consultative examination on January 22, 2004.
(R. 414-18). Dr. Cole diagnosed him with severe and recurrent Major Depressive Disorder
without psychotic features, polysubstance dependence (reportedly in remission), Dysthymic
Disorder with early onset, and a personality disorder. (R. 417). At the time of the consultation,
plaintiff had a GAF score of 55. (R. 418). Dr. Cole wrote that plaintiff would probably be able to
understand complex instructions, but his ability to concentrate and persist in tasks was probably
limited due to his, then current, depressive episode. Id. Dr. Cole wrote that plaintiff would most
likely not be able to work well with the general public due to his depressive state; however, he
would be able to work with a small number of coworkers in a simple workplace environment. Id.
Plaintiff saw Kevin Whisman, Psy.D, for a consultative examination on October 11,
2004. (R. 428-31). Dr. Whisman affirmed the diagnoses of Dr. Cole. (R. 431). Plaintiff’s GAF

11

score at the time of visit was 65. Id. Dr. Whisman wrote that plaintiff did not appear to have any
defects in his ability to understand and remember instructions. Id. Dr. Whisman found that
plaintiff had an adequate ability to sustain concentration and persistence of tasks. Id. Dr.
Whisman wrote that plaintiff could function well in a socially restrictive environment and could
manage his personal funds. Id.
Plaintiff saw Jan Kent, Ph.D., for a consultative examination on May 21, 2007. (R. 51722). Dr. Kent reaffirmed Dr. Cole’s diagnosis. (R. 520). Dr. Kent scored plaintiff’s GAF from
“45 to 55.” Id. On the examination form, Dr. Kent checked the box indicating that plaintiff’s
ability to understand, remember and carry out instructions was not affected by his impairment.
(R. 521). On that same form, Dr. Kent checked the box indicating that plaintiff was slightly
limited in his ability to respond appropriately to co-workers, the general public, and to changes
in a routine work setting. Id. Dr. Kent checked the box indicating that plaintiff was moderately
limited in his ability to respond appropriately to supervisors, and markedly limited in his ability
to respond appropriately to work pressures in a usual work setting. Id. Dr. Kent noted that her
findings were supported by plaintiff’s withdrawn behavior during their interview and his medical
record, which indicated severe depression. Id. Dr. Kent wrote that plaintiff showed no
impairment in attention and concentration skills on the mental status evaluation. (R. 520). Dr.
Kent wrote that with intensive and ongoing psychological management of his problems,
plaintiff’s condition would most likely improve within a year. Id.
Non-examining state agency consultant Geoffrey Sutton, Ph.D., completed two Mental
Residual Functional Capacity forms. (R. 390-92, 425-26). The first form was completed on
February 3, 2004. (R. 390-92). Dr. Sutton found that plaintiff had moderate limitations in his
ability to carry out detailed instructions, interact appropriately with the public, and accept

12

instructions and respond appropriately to criticism from his supervisors. (R. 390-91). The second
from was completed on November 8, 2004. (R. 425-26). It is practically identical to the first
form. (R. 390-92, 425-26).
The ALJ Hearing
Plaintiff was 50 years old at the time of the August 13, 2012 hearing before ALJ
Headrick. (R. 789, 792). He had completed the eleventh grade, and did not receive a GED. (R.
793). Plaintiff’s only training was conducted on the job. Id. His last job was at a Wal-Mart in
2002, as the overnight maintenance supervisor. Id. Plaintiff quit because “they did away with
[his] position.” Id. Before working at Wal-Mart, plaintiff was a machinist (from 1995 to 1998).
(R. 794). Plaintiff testified that he had not attempted to find another job because he lacked the
motivation to look. (R. 794). He said that “due to depression [he] ha[d] no desire to get out to do
anything.” (R. 795). Plaintiff spends his days listening to the television at his home. Id. Plaintiff
said that he can concentrate on what he is watching for 30 to 45 minutes before his mind begins
to wander. (R. 799-800). Plaintiff takes the dog out every morning, but other than that, he stays
in his apartment. (R. 795). He eats TV dinners and soup because he has no motivation to prepare
anything more complicated. Id. Plaintiff does his own laundry. (R. 805).
Plaintiff bathes irregularly, sometimes once a week and other times every couple of
weeks because he does not feel like bathing often. (R. 796). Plaintiff grocery shops about once a
week, and he can get his shopping done in 15 to 20 minutes because the people in the store
aggravated him. (R. 796-97).
Plaintiff does not like being around people in general, and when he was working, he had
conflicts with his supervisor. (R. 797-98).

13

Plaintiff has two daughters. Id. About once every two to three months, one of his
daughters visits him and takes him to dinner. Id. He does not have conflicts with anyone while at
restaurants with his daughter. Id.
Plaintiff has a history of depression and depression-related problems. On April 27, 2000,
he was hospitalized at Freeman Hospital for suicidal gestures and self-inflicted wounds. (R. 30708). He was discharged on May 1, 2000. Id.
Plaintiff testified that he continues to struggle with suicidal thoughts. (R. 800). He said
that this struggle had gotten better since he started his medication, but suicidal thoughts cross his
mind about once a month. (R. 800-01). However, plaintiff does not believe that his depression
medication works. Id. Plaintiff does not feel the need to make friends, and he does not have any
friends. (R. 802). Plaintiff attended group therapy for some period of time until the institution’s
funding was cut. (R. 791). Plaintiff stated that he had no conflicts with anyone in the group
therapy. Id. Since the group therapy ended, plaintiff has digressed to a state of not wanting to be
around people. (R. 803).
ANALYSIS
On appeal, plaintiff raises three issues. (Dkt. # 17). First, plaintiff argues that the ALJ
failed in properly considering the medical source opinions. Plaintiff contends that the ALJ did
not incorporate any work restrictions into his RFC determination to compensate for limitations in
his ability to work with and/or around co-workers and supervisors that were found by his treating
physicians, agency consultative examiners, and non-examining agency reviewers. Id. He argues
that since all the doctors agree there is some limitation in that area, the opinions from his treating
physicians should be given deference. Id. The Commissioner argues that the ALJ properly
discounted the treating physicians’ opinions based on their treatment records. (Dkt. # 18).

14

Second, plaintiff asserts that the ALJ failed to properly consider plaintiff’s credibility.
(Dkt. # 17). He states that the ALJ’s reasons for his credibility findings are not supported by
substantial evidence. The Commissioner counters that the ALJ’s credibility findings are
grounded in statements found in plaintiff’s treatment notes. (Dkt. # 18).
Finally, plaintiff argues that the ALJ’s RFC determination was faulty because it did not
reflect all of plaintiff’s impairments. (Dkt. # 17). The Commissioner answers this argument by
saying that the ALJ’s RFC determination is not flawed because he properly discounted plaintiff’s
treating physician opinions. (Dkt. # 18).
Medical Source Opinion Issues
Plaintiff argues that the ALJ erred in stating that the opinions of Dr. Collins and Dr.
Chestnut were not supported by the record. (Dkt. # 17 at 7-8). Additionally, plaintiff argues that
even if the opinions of the treating physicians are not entitled to controlling weight, they are at
least entitled to some weight because parts of them concur with all the other medical opinions.
Id.
Generally the opinion of a treating physician is given more weight than that of an
examining consultant, and the opinion of a non-examining consultant is given the least weight.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). An ALJ must consider the opinion
evidence and, if he rejects it, he must provide specific legitimate reasons for the rejection. Doyal
v. Barnhart, 331 F.3d 758, 763-64 (10th Cir. 2003); Victory v. Barnhart, 121 Fed.Appx. 819, 825
(10th Cir. 2005) (unpublished). So long as the ALJ gives good reasons for the weight he gives to
treating medical opinions, nothing more is required. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007).

15

Here, the ALJ found that the opinions of plaintiff’s two treating physicians were each
internally inconsistent because both doctors listed marked to extreme limitations in their MSS
forms but neither addressed those limitations in the treatment notes. (R. 26). An MSS form asks
a physician to evaluate an individual’s capacity to sustain certain activities during an eight-hour
workday. (R. 421). Since plaintiff was not working when he was seeing Dr. Collins and Dr.
Chestnut, it is not surprising or improper for them not to have mentioned work-related
limitations in their treatment notes. In fact, the MSS form may have been the only time the
doctors were asked to address plaintiff’s employment limitations.
The ALJ also reasoned that Dr. Collins’ MSS is not supported by his treatment notes
because Dr. Collins reported in 2006 that plaintiff was doing well on his medications, had no
psychotic or manic symptoms, and was stable. (R. 26). Dr. Chestnut saw plaintiff four times
from the beginning of January to the end of March in 2008. (R. 558, 561, 564, 566). The first
three times, plaintiff reported that he was feeling “about the same,” referring to his previous visit.
On March 25, he reported that he was doing fairly well. From this information, one could say
that plaintiff was stable for the first three visits and was doing fairly well after the fourth visit.
However, the recurrent nature of plaintiff’s major depressive disorder was displayed one month
later on April 23, when he was hospitalized after demonstrating homicidal and suicidal ideations.
(R. 537-550). Thus, it is not inconsistent to find that plaintiff had marked or extreme limitations
in certain areas at times when his symptoms were more manageable because the nature of his
recurrent ailment is episodic, and the ALJ did not cite any evidence indicating that Dr. Collins or
Dr. Chestnut were incorrect in diagnosing plaintiff with severe and recurrent major depressive
disorder.

16

Furthermore, the ALJ relied on the opinions of the state’s physicians, who had Dr.
Collins’ MSS in the record to consider. (R. 27). All of the state physicians found limitations in
plaintiff’s ability to work, especially with the public and with supervisors. Presumably, the
evidence for those limitations came from Dr. Collins’ treatment records, which the ALJ claimed
did not give any indications of marked to extreme limitations. Id. Since the ALJ never articulated
why the record would support a moderate limitation and not a marked or extreme limitation, he
did not meet his burden of giving specific legitimate reasons for rejecting Dr. Collins and Dr.
Chestnut’s opinions. The ALJ also erred by not explaining why he chose to adopt certain
“moderate” restrictions imposed by the agency physicians, but not all, especially since he gave
those opinions “great weight.” See Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007).
Credibility Issues
Plaintiff argues that the ALJ erred in properly considering his credibility. (Dkt. # 17 at 79). The undersigned finds no error with the ALJ’s credibility analysis.
Credibility determinations by the trier of fact are given great deference. Hamilton v.
Secy. of Health & Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992).
The ALJ enjoys an institutional advantage in making [credibility determinations].
Not only does an ALJ see far more social security cases than do appellate judges,
[the ALJ] is uniquely able to observe the demeanor and gauge the physical
abilities of the claimant in a direct and unmediated fashion.
White, 287 F.3d at 910. In evaluating credibility, an ALJ must give specific reasons that are
closely linked to substantial evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995);
Social Security Ruling 96-7p, 1996 WL 374186. “[C]ommon sense, not technical perfection, is
[the] guide” of a reviewing court. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir.
2012).

17

Here, the ALJ found that plaintiff was not entirely credible due to the record. (R. 27). The
ALJ supported his finding with plaintiff’s own testimony in which he stated that he walked the
dog, shopped, and cooked. (R. 25). The ALJ further supported his finding by stating that plaintiff
said he did not quit work because of his disability, but because he “was not motivated to go out
and look for a job.” (R. 26). Because the ALJ cited to specific evidence in the record to support
his credibility determination, the Court must defer to that determination, and affirm this issue.
Bean v. Charter, 77 F.3d 1210, 1213 (10th Cir. 1995).
RFC Assessment Issues
When the ALJ reconsiders the medical source evidence, a reconsideration of plaintiff’s
RFC may be appropriate. The Court will not otherwise address this issue.
Conclusion
Based upon the foregoing, the Court REVERSES AND REMANDS the decision of the
Commissioner for further proceedings consistent with this Opinion and Order.
SO ORDERED this 24th day of September, 2013.

18