Peterson v. Social Security Administration

Filing 27

OPINION AND ORDER by Magistrate Judge Paul J Cleary reversing and, remanding case (terminates case) (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
LORRAINE PAMELA PETERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. 15-CV-184-PJC

OPINION AND ORDER
Claimant, Regina Lynn Peterson (“Peterson”), pursuant to 42 U.S.C. § 405(g), requests
judicial review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Peterson’s application for disability insurance benefits under Title II
and for supplemental security income benefits under Title XVI of 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. [Dkt. 10]. Any appeal of this
order will be directly to the Tenth Circuit Court of Appeals. Peterson appeals the decision of the
Administrative Law Judge (“ALJ”) and asserts that the Commissioner erred in determining that
Peterson was not disabled. For the reasons discussed below, the Court REVERSES the
Commissioner’s decision for reconsideration.
Procedural History
On July 11, 2011, Peterson protectively filed her applications for disability insurance and
supplemental security income benefits alleging an onset date of December 30, 2008. (R. 199206). The applications were denied initially and on reconsideration. (R. 95-98,115-120). An

administrative hearing was held before ALJ Lantz McClain on March 18, 2013. (R. 54-73). A
supplemental hearing was held by the ALJ on September 9, 2013. (R. 34-52). The ALJ entered a
decision on October 23, 2013, finding Peterson was not disabled within the meaning of the
Social Security Act, and therefore not entitled to benefits. (R. 12-27). The Appeals Council
denied Peterson’s request for review on February 11, 2015. (R. 1-3). Thus, the decision of the
ALJ represents the Commissioner’s final decision for purposes of this appeal. 20 C.F.R. §
404.981, Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
Claimant’s Background
Peterson was 48 years old on her alleged disability onset date, December 30, 2008, and
she was 53 years old when the ALJ entered his decision on October 23, 2013. (R. 26). At the
administrative hearing on March 18, 2013, Peterson testified that she completed the twelfth
grade. (R. 58). Peterson claimed she was unable to work due to: pain in her lower back,
shoulders and arms; dizziness and headaches due to microadenoma; and asthma.(R. 60-64). She
testified that she can stand forty-five minutes comfortably. (R. 64). She said she has no difficulty
sitting in a straight back chair for any length of time. Id. She can walk for about forty-five
minutes but then has to stop and rest because her knees start hurting. Id. She gets dizzy walking
and standing. Id. If she tries to lift and carry more than five pounds, her arms, shoulders and
lower back start hurting. She has trouble sleeping because of her back and wakes up after three
hours. (R. 65-66). She sleeps two hours during the day. (R. 66). She drives only when needed
because the majority of time, her son takes her where she needs to go. Id. Chores around the
house consist of sweeping the kitchen and sometimes the living room. Id. She spends her days
reading and meditating. Id. She goes to church every Sunday via the church van. (R. 68). She
likes to draw and paint. Id.
2

At the supplemental hearing on September 9, 2013, Peterson testified that the medication
she takes for the pituitary problem causes her “to be dizzy and unbalanced” twice a day and she
has to lay down and rest for fifteen to twenty minutes before she is back to normal. (R. 42). She
sometimes can feel the dizziness coming on and sits down or grabs something. (R. 43). She has
fallen down; the last time was a month before the hearing. Id. She has had neck and back pain
since 2000 but is not receiving medical treatment for that. (R. 44). She saw a doctor about her
back in 2006 or 2007 but his practice closed and she cannot locate those records. (R. 45). She
has not seen anyone else because she has no money. (R. 45). Plaintiff testified at the
supplemental hearing that she could stand for an hour at a time before her knees and back starting
hurting. (R. 46). She has to rest an hour and forty-five minutes. (R. 46). This happens
throughout the day. Id. She can sit for a few hours without a problem. (R. 47). She cannot lift a
gallon of milk because of pain in her shoulders and arms but she can lift a half gallon. Id. She
carries groceries in “a bag at a time.” Id. She also has pain in the knee and leg since 2000 and
has had no treatment for it. (R. 48).
Social Security Law and Standard Of Review
Disability 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 claimant is disabled under the Act only if his
“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

3

claim. 20 C.F.R. § 404.1520.1 See also Wall v. Astrue, 561 F.3d 1048, 1052-53 (10th Cir. 2009)
(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Lax v. Astrue, 489 F.3d at 1084
(citation and quotation omitted).
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g). This Court’s review is limited to two inquiries: first, whether the decision is supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted). Substantial evidence is
such evidence as a reasonable mind might accept as adequate to support a conclusion. Wall v.
Astrue, 561 F.3d at 1052 (quotations and citations omitted). Although the court will not reweigh
the evidence nor substitute its judgment for that of the Commissioner, 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. Even if

1

Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is compared
with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A claimant
suffering from a listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four,
where the claimant must establish that he does not retain the residual functional capacity
(“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met, the burden
shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the
national economy which the claimant, taking into account his age, education, work experience,
and RFC, can perform. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
4

the court would have reached a different conclusion, if supported by substantial evidence, the
Commissioner’s decision stands. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
Medical Evidence
Treatment Records
Records from Morton Comprehensive Health Services, show that from October 2007
through December 2010, Peterson was seen for general medical care by Njanja M. Ruenji, PA-C.
(R.330-361). Peterson was diagnosed with asthma in December 2008 and was prescribed allergy
medication and an inhaler. (R. 356). Peterson received follow-up care for asthma and
menopausal symptoms. Id. Nowhere in the records for that time frame, did Peterson complain of
neck, shoulder or back pain, headache or dizziness. (R.348–357). In March 2010, Peterson was
seen for hormone check for menopausal symptoms including restlessness, sleeplessness, mood
lability and hot flashes. (R. 353-354). Peterson was seen again in September and October 2010
for allergies, urinary tract infection and menopausal symptoms. (R. 349-353). Dr. Lanette Smith
examined Peterson on December 8, 2010, and noted nipple discharge which Peterson reported
had been going on “for some time” and in January 2011, the doctor ordered a Prolactin level test.
(R. 342, 347). Peterson continued to deny headache or dizziness and her neck and extremities
were reported to be normal. (R. 348). During follow-up examinations in March 2011, Peterson
was advised to lose weight and to exercise regularly. (R. 346-347).
On April 15, 2011, Patrick P. Han, M.D., examined Peterson and noted her complaints of
galacturia from both breasts since 2007 and her complaints of significant dizziness. (R. 402-403).
Peterson gave a history of depression and pain in her legs while walking, memory problems,
balance difficulties, headaches, dizziness and fainting spells. (R. 401). She also reported
numbness, tingling and/or pain in her neck shoulders, arms, elbows, hands, hips, legs, knees,
5

feet, and low back. Id. Upon examination, Peterson’s strength in all extremities measured
normal and she demonstrated normal range of motion in the cervical and lumbar spine with
negative straight leg raise testing. (R. 398-403). Dr. Han ordered MRI and lab studies. Id.
Peterson continued to receive general medical care at Morton Health Services through
July 19, 2011. (R. 343-348). On April 20, 2011, Peterson complained of poor balance and
dizziness. (R. 345-346). An MRI showed pituitary microadenoma. Id. Lab specimen were taken
and another appointment to see Dr. Patrick Han was made. Id.
Dr. Han reviewed the MRI and lab results and examined Peterson again on May 5, 2011.
(R. 341, 397). He advised Peterson and her primary care provider that the MRI showed the
presence of a pituitary microadenoma2 and that the lab work showed a twenty-times normal
prolactin level. Id. After discussing the case with an endocrinologist, Dr. Han recommended
medication to shrink the tumor and suggested that surgery would not be necessary. Id. He said:
“At this time the patient has no compression of the optic nerve and does not complain of any
neurological problems. Her primary symptom is galactorrhea.”3 On July 27, 2011, Dr. Han noted
that Peterson’s condition was stable and that she was doing well neurologically. (R. 393-395).
Peterson complained of blurry vision but there was no acute change and her other symptom of
galactorrhea had improved with recent prolactic levels down. Id.
Treatment records from Morton Health Services dated July 19, 2011, show Peterson
continuing to complain of vaginal bleeding and an appointment for OB/GYN at OSU was made.

2

A pituitary microadenoma is less than 10 mm in diameter and not visible by usual
radiographic techniques; most endocrine-active adenomas are this size and are detected because
of their hormone activities. Dorland’s Ill. Med. Dictionary, 31st Ed. (1990) 1174.
3

Gallactorrhea is excessive or spontaneous flow of milk irrespective of nursing.
Dorland’s, id. at 765.
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(R. 343-344). Peterson was treated for postmenopausal bleeding at OSU clinic in September and
October 2011 and a biopsy was performed on October 27, 2011. (R. 460-461). On November 14,
2011, the physician reported the postmenopausal bleeding had resolved. (R. 458).
Peterson underwent a follow-up brain MRI on August 3, 2011, which revealed that the
previously identified mass had reduced in size and that deviation of the infundibular stalk was no
longer present. (R. 409, 490). On August 12, 2011, Dr. Han reported to Peterson’s primary care
provider that the medication regimen “significantly improved [Peterson’s] symptoms,” that she
no longer had galactorrhea and that the MRI had demonstrated significant shrinkage of the
tumor. (R. 534). He recommended that Peterson continue the medication and see the
endocrinologist in November. Id. He planned to order an MRI in one year. Id. When Peterson
came in for medication reconciliation consultation later that day, she claimed she was still dizzy
some and that she had off balance issues and headaches. (R. 533).
On February 1, 2013, Dr. Han’s progress notes indicate that Peterson consulted Dr. Han
and said she “wants a 2nd opinion about her tumor removal.” (R. 530-532). She claimed she
continued to have dizziness and headaches as well as some vision changes. Id. Upon
examination, Peterson was assessed as being neurologically intact and stable. Id. She was
moving all extremities with equal strength rated 5/5 and she demonstrated normal gait, erect
posture and normal balance. Id. The doctor noted that the recent MRI demonstrated
improvement of lesion that appeared “at least near to totally resolved.” (R. 531). He wrote:
MRI of brain demonstrates no evidence of mass or abnormal
enhancement. She has continued on bromocriptine with good
results. Unfortunately patient has been experiencing side effects of
the medication. Patient has the option to stop the bromocriptine
and start another medication Dostinex. She also has the option of
discontinuing medication and watching with imaging to determine
if recurrence/growth. If this is the case, surgical resection would be
7

indicated. We have discussed changing the medication. At this
time patient desires to continue with the bromocriptine. Will order
MRI brain in one year, will call with results. I have discussed the
options for managing the patient’s condition.
(R. 532).
The record contains a report from Family & Children’s Services (“F&CS) dated July 13,
2010 through September 13, 2010. (R. 313-329). Peterson met with clinicians on July 13, 2010,
complaining of low motivation, little or no energy, mood swings, struggles with sleep and
difficulty performing daily tasks. Id. A treatment plan was formulated with the goal of learning
and implementing coping skills for managing depressive symptoms. Id. Peterson saw Dr. Elka
Serrano on July 27, 2010, was diagnosed with Major Depressive Disorder and Anxiety Disorder
and she was prescribed Celexa, Risperdal and Trazodone.4 Id. Peterson kept her August 11,
2010, appointment, but the report shows that after several unsuccessful attempts at reaching her
after that date, a clinician sent a termination and discharge letter on September 13, 2010. Id.
Consultative Examinations
Johna Kay Smasal, Ph.D., PLLC, conducted a consultative examination of Peterson on
September 7, 2011. (R. 417-421). Dr. Smasal repeated the history Peterson gave regarding her
social life, activities of daily living, past work, medical treatment and complaints of depression
and coping mechanisms. (R. 418-419). Dr. Smasal noted that Peterson became very distressed
while discussing a past abortion but that she did not meet the criteria for PTSD. (R. 419). Dr.
Smasal then conducted a cognitive examination and recorded her behavioral observations. (R.
419-420). Dr. Smasal offered the following summary of her findings:

4

It is not clear whether Peterson ever received the medication, as the clinician noted on
August 11, 2010, that the paperwork had been completed and that the medications were expected
to arrive in four to eight weeks at the physician’s office. (R. 325).
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Ms. Peterson initially appeared to be cautious in her rapport, and
later she became more talkative, emotional, and open. Ms. Peterson
is an attractive and intelligent woman. She spoke of a large,
supportive family with whom she enjoys spending time. Ms.
Peterson described a 20 year marriage to the father of her children
in which she was abused and manipulated. She also became tearful
as she discussed her abortion. Ms. Peterson said that she has had a
great difficulty learning to trust others since. She is troubled by her
diagnosis of a brain tumor, and has since struggled with low
energy, irritability, depressed mood, avolition, and some social
isolation. Her poor attention and concentration was evident during
the cognitive examination. She often had difficulty following her
own train of thought. In a work environment, her low energy, poor
attention span, and self-reported memory problems are likely to
interfere with her tasks.
(R. 421). Dr. Smasal opined that Peterson would be capable of handling her finances
responsibly. Id. Her diagnostic impression was “Maj Depress Dis Recurr Epi Mod Both ... Ms.
Peterson has a brain tumor. Chronic physical pain injuries.” Id.
On September 9, 2011, Peterson was examined on behalf of the agency by Wayland Ron
Billings, D.O. (R. 424-429). Peterson reported a five year history of menstrual problems and the
diagnosis of “prolactinoma.” She claimed that treatment had eliminated the breast discharge but
that she had continuing headaches and visual changes. Id. She reported she “always feels weak
and fatigue and that she got some improvement after blood transfusion but continues to lose
blood almost on a daily basis.” Id. She said that these problems affect her activities of daily
living. Id. She reported being able to do light house chores including cooking and cleaning and
said that she does drive. Id. Her complaints related to depression consisted of difficulty with
sleep, lack of interest in normal activities, repeated feelings of guilt, decrease in energy, difficulty
with concentration and changes in appetite. Id. She included a past medical history of chronic
low back pain, asthma and allergies. Id. Her only reported current medication was bromocriptine.
Id. Physical examination revealed normal findings and no neck pain was appreciated. Id. Range
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of motion tests were all within normal limits. Id. Peterson moved about the exam room easily,
she had full range of motion of her spine and she ambulated with a stable gait at an appropriate
speed without use of assistive devises. Id.
A Psychiatric Review Technique form was filled out and signed by Ron Cummings,
Ph.D., on September 13, 2011. (R. 434-447). He evaluated functional limitations for Affective
Disorders and Anxiety-Related Disorders - Major Depressive Disorder - Recurring Episode
Moderate. (R. 437, 439). He rated Peterson’s restriction of activities of daily living as mild, her
difficulties in maintaining social functioning and maintaining concentration, persistence or pace
as moderate and he found no evidence of episodes of decompensation. (R. 444). Dr. Cummings
explained his findings by citing to the Family & Children’s Services record, Dr. Han’s most
recent assessment, Dr. Smasal’s report and Peterson’s activities of daily living. (R. 446). His
analysis of the evidence was:
The available, relevant MER in record adequately establishes the
presence of psychiatric MDI(s) noted in Sections I and II of the
PRTF. The claimant alleges that her mental symptoms are
debilitating but the objective evidence does not fully support her
claim. The claimant retains sufficient cognitive skills to perform
day to day activities and demonstrates a reasonable level of
competence with social interaction skills. The combination of
clinical data and descriptive information suggests that functional
limitations are moderately impaired as noted in Section III of the
PRTF. The clmt has alleged additional functional limitations
attributable to physical impairments that will be addressed in
separate analysis. Refer to MRFC for further assessment of work
related limitations.
(R. 446).
Dr. Cummings also filled out a Mental RFC Assessment form on September 13, 2011.
(R. 430-433). Dr. Cummings assessed Peterson with marked limitations in ability to understand,
remember and carry out detailed instructions. (R. 430). He assessed moderate limitations in
10

Peterson’s ability to interact appropriately with the general public. (R. 431). In all other
functions, Dr. Cummings found Peterson was not significantly limited. (R. 430-431). As
explanation for his findings, Dr. Cummings wrote:
The claimant is able to maintain concentration, persistence and
pace for a normal work day and work week. The claimant is able to
understand and carry out simple and some minimally complex
work tasks. The claimant is able to recognize and avoid common
work hazards. The claimant is able to adapt to changes in the work
setting and make decisions regarding work tasks. The claimant is
able to work with coworkers and supervisors on a superficial basis
without being overly distracted by psychological symptoms. The
claimant is moderately impaired in her ability to work effectively
with the general public due to mood instability. The claimant’s
mood issues may cause difficulties with tasks involving sustained
focus and complex mental demands. However, given limited
public contact and allowances for occasional psychological
problems affecting efficiency, the claimant remains mentally
capable of understanding and carrying out simple instructions and
assignments in a structured setting, in an appropriate time frame.
(R. 432).
On September 23, 2011, Karl K. Boatman, M.D., filled out and signed a Physical RFC
Assessment. (R. 449-456). He determined Peterson had abilities to occasionally lift and/or carry
twenty pounds and frequently lift and/or carry ten pounds. (R. 450). He found Peterson could
stand and/or walk and sit about six hours in an 8-hour workday and that her abilities to push
and/or pull were unlimited. Id. In support of his findings, Dr. Boatman wrote:
51 yo DI, DIB female with 12 years of education, AOD
12/30/2008, DLI 6/30/2010, DOF 6/20/2011 alleges a back injury,
left shoulder pain, left arm pain and pituitary gland growth
problems. 3/11/2011 Morton Comp Health Serv records MR Brain
impression lesion in right side of sella compatible with a pituitary
microadenoma. 4/20/2011 assessment obesity and benign pituitary
neoplasm, 5/5/2011 labs show normal results for growth hormone,
TSH, LH, thyroid and cortisol. The goal is tumor should shrink
using medication and that surgery would not be necessary. Her
primary symptom is galactorrhea. 12/8/2010 pt has asthma but
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does not take any medicines other than inhalers. 1/6/2011 Patrick
Han records dx for puerperal galactorrhea, 4/20/2011 benign
neoplasm of pituitary gland and craniopharyngeal duct. 7/27/2011
bp 113/74, ht 5'7", wt 209, respiratory normal, cardiobascular
normal, CN II-X11 grossly intact, full ROM of spine, fine tactile
manipulation of objects is normal, SLR negative bilaterally,
toe/heel walking normal and ambulates with a stable gait at an
appropriate speed, dx prolactinoma controlled with medication,
premenopausal abnormal vaginal bleeding and depression.
ADLs record pain of back, neck and feet affect ability to bend,
stand, sleep, perform personal care, house and yard work.
(R. 450-451). Dr. Boatman found that no postural, manipulative, visual, communicative or
environmental limitations had been established. (R. 451-456).
On April 3, 2012, William R. Grubb, M.D., examined Peterson. (R. 467-473). He
recorded Peterson’s subjective complaints of left shoulder, arm, neck and lower back pain. Id.
He conducted a physical examination and reported Peterson’s back and extremities were without
evident joint deformity, redness, swelling, heat, tenderness, erythema or edema with no evidence
of asymmetric atrophy or weakness. (R. 469). Peterson’s gait was normal in terms of speed,
stability and safety and her grip strength was 5/5 bilaterally. Id. Dr. Grubb’s impression was:
1. Probable degenerative disease of the lumbosacral and cervical
spine.
2. Low back and neck pain probably secondary to number 1 above.
3. Asthma and history of recent possible pneumonia.
4. Irregular periods with polymenorrhea, presently on
bromocriptine, Ketoprofen and medroxyprogesterone.
Id. The charts attached to Dr. Grubb’s report show decreased range of motion in the back, neck,
hips, both knees, shoulders, and in finger hyper-extension in left and right digits. (R. 470-472).
Range of motion in the lumbosacral spine was decreased without scoliosis but positive for pain.
(R. 473). Peterson’s cervical spine also showed slightly decreased range of motion without pain.
Id.

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On April 16, 2012, Peterson was again evaluated by Dr. Smasal. (R. 476-480). Dr.
Smasal updated the social and medical history Peterson gave since her prior appointment on
Sept. 7, 2011. (R.479). She summarized the evaluation as follows:
Ms. Peterson was a pleasant and talkative claimant who arrived ontime appropriately dressed and groomed. Ms. Peterson is an
attractive and intelligent woman. Ms. Peterson described a 20 year
marriage to the father of her children in which she was abused and
manipulated. She also became tearful as she discussed her current
life circumstances including lack of income or health insurance.
Ms. Peterson said that she has had a great difficulty learning to
trust others since. She is troubled by her diagnosis of a brain tumor,
and has since struggled with low energy, irritability, depressed
mood, avolition, and some social isolation. Her poor attention and
concentration was evident during the cognitive examination. She
often had difficulty following her own train of thought. In a work
environment, her low energy, poor attention span, and self-reported
memory problems are likely to interfere with her tasks. Her
prognosis is guarded.
(R. 479-480). Dr. Smasal’s diagnostic impression was: “Maj Depress Dis Recurr Epi Mod Both;
Uns Persist Ment Dis In Ot Cond Both; Ms. Peterson has a brain tumor. Chronic physical pain
injuries. Occupational; Economic; Healthcare Access.” (R. 480).
At the supplemental hearing on September 9, 2013, Don Roger Clark, M.D., appeared by
telephone. (R. 37-41). Dr. Clark testified that he had reviewed all the medical evidence in the
record. (R. 38). Dr. Clark recited Peterson’s history of galactorrhea and her treatment for and the
resolution of a benign pituitary tumor. Id. He noted that Peterson is overweight, with a body
mass index of over 32. Id. He testified that Peterson has complained of asthma but that the
record contained no pulmonary function studies and there were no reports of wheezing in her
lungs so he had “no objective way to pin that down.” Id. He also noted Peterson’s complaints of
sleep difficulty, a 10-year history of crying spells and “then of late she complained of neck and
shoulder pain.” Id. Dr. Clark specifically noted Dr. Boatman’s September 23, 2011, physical
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RFC assessment and Dr. Grubb’s April 13, 2012 physical examination. (R. 38-39). Dr. Clark
testified that Dr. Grubb found some limitation in range of motion of Peterson’s neck, but that she
had no pain and her reflexes were normal, so he did not feel that was necessarily limiting. (R.
39). Dr. Clark opined that Peterson’s sleep problems might be related to obstructive sleep apnea,
based upon her body mass index, but noted that she had not been tested for that. (R. 39, 41). Dr.
Clark agreed with Dr. Boatman’s physical RFC assessment. (R. 39-40). He noted that with a
history of asthma, a restriction in the workplace for smoke might be indicated but there are no
pulmonary function studies and “in all the physical examinations nobody has recorded any
wheezes in her lungs, so I’m not sure how that diagnosis was established.” Id. Under questioning
by Peterson’s attorney regarding Peterson’s complaints of dizziness and being unbalanced on her
feet, Dr. Clark said he was not familiar with the pituitary medication Peterson is taking but those
symptoms are “not a pituitary thing.” (R. 40). Dr. Clark noted that Dr. Grubb found no
instability during his examination of Peterson. Id.
Decision of the Administrative Law Judge
In his decision, the ALJ found at Step One, that Peterson had not engaged in any
substantial gainful activity since her alleged onset date of December 30, 2008. (R. 14). At Step
Two, the ALJ found that Peterson has severe impairments of history of benign pituitary
neoplasm, history of puerperal galactorrhea, history of left shoulder and arm pain, history of
asthma, sleep difficulties, depression and anxiety. Id. At Step Three, the ALJ found that
Peterson’s impairments did not meet any Listing. (R. 15). Regarding Peterson’s mental
impairments, the ALJ found that Peterson has mild restriction in activities of daily living and
moderate difficulties in social functioning, concentration, persistence or pace. Id. He concluded
that Peterson had experienced no episodes of decompensation. Id.
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The ALJ found that Peterson has the RFC to lift and/or carry 20 pounds occasionally and
10 pounds frequently, stand and/or walk 6 hours in an 8-hour workday, sit at least 6 hours in an 8hour workday, and that she is able to perform simple, repetitive tasks, relate to supervisors and
coworkers only superficially, and not work with the general public. (R. 16).5
The ALJ summarized Peterson’s testimony. (R. 17). He summarized the medical evidence
in the record, noting that Peterson first went to the doctor because of dizziness and fatigue in
2010. (R.17). The ALJ pointed to Dr. Clark’s testimony and the exhibits endorsed by Dr. Clark.
Id. The ALJ summarized the medical evidence in the record in detail, taking particular notice of
Dr. Smasal’s findings, Dr. Grubb’s findings, and the opinions of the agency consultants. (R. 1723). Regarding Peterson’s complaints of mental impairments, the ALJ noted that Peterson had
not followed through with the treatment plan from Family and Children’s Services. (R. 23). With
regard to Peterson’s claim of medication side effects, the ALJ found that the office treatment
notes do not corroborate those allegations, other than some blurriness of vision. Id. The ALJ also
concluded that the medical record failed to demonstrate the presence of medical findings or
neurological abnormalities that would establish the existence of a pattern of pain of such severity
as to prevent Peterson from engaging in any work on a sustained basis. Id.
The ALJ found the inconsistencies between the medical treatment record and examination
reports and Peterson’s testimony reduced Peterson’s credibility. (R. 24). He noted that the record
does not contain any treating physician’s opinion that Peterson is disabled or has limitations
greater than those he assessed in the RFC. (R. 25).

5

The mental functional limitations comport with the findings of Dr. Cummings. (R. 432).
15

Regarding Peterson’s physical limitations, the ALJ gave “great weight” to the opinions of
Dr. Billings, who examined Peterson, the agency consultants’ RFC assessments and Dr. Clark
who testified at the supplemental hearing. (R. 25).
The ALJ then said:
With regard to the opinions of the medical experts and consultants
regarding the claimant’s mental status, the claimant was given
mental limitations, as outlined in Exhibit 7F; however, it does not
seem likely she has a severe mental condition as she has not sought
additional mental health treatment or prescribed medication for her
depressive disorder. Therefore, the opinions at Exhibits 7F, 8F and
14F are given little weight.
(R. 25).6
At Step Four, the ALJ determined that Peterson could not return to her past relevant work
as a nursery school attendant, correction officer and food inspector. (R. 25). At Step Five, the
ALJ found that there are a significant number of jobs in the national economy that Peterson could
perform, taking into account her age, education, work experience and RFC. (R. 26-27). The ALJ
thus found that Peterson was not disabled at any time from December 30, 2008, through October
23, 2013, the date of his decision. (R. 27).
Review
Peterson asserts that the ALJ’s analysis and findings regarding Peterson’s mental
impairments are internally inconsistent and inconsistent with the agency’s rules and regulations.
[Dkt. 18, at 7]. Peterson also contends that the ALJ did not explain what weight, if any, he gave
Dr. Smasal’s opinions or explain the rationale behind his consideration of Dr. Smasal’s reports.
[Dkts. 18, at 10; 26, at 3]. The Commissioner defends the ALJ’s decision, asserting first that the
6

Exhibit 7F and 8F are the PRT and Mental RFC by Ron Cummings, Ph.D., dated
September 13, 2011. (R. 430-447). Exhibit 14F is a Case Analysis by Don B. Johnson, Ph.D.,
who concurred with Dr. Cummings’ findings on May 25, 2012. (R. 481).
16

ALJ properly gave little weight to the opinions of the medical experts and consultants regarding
Peterson’s mental status, then arguing later in her brief that the ALJ’s RFC determination was
consistent with portions of the consultants’ opinions. [Dkt. 25]. The Commissioner also argues
that the ALJ meant to include Dr. Smasal’s opinion when he gave little weight to the opinions of
the medical experts and consultants regarding Peterson’s mental status. [Dkt. 25, at 9] (emphasis
added).
Regarding opinion evidence, generally the opinion of a treating physician is given more
weight than that of an examining consultant, and the opinion of a nonexamining consultant is
given the least weight. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). The ALJ is
required to discuss all opinion evidence and to explain the weight he gives it. Id. In this case,
because there is no treating physician opinion regarding Peterson’s mental abilities to perform
work activities, the only medical evidence available to the ALJ in that regard was the opinions of
agency physicians.
Dr. Smasal twice conducted an in-person examination of Peterson at the request of the
ALJ. (R. 417-421, 476-480). Dr. Smasal’s opinions are therefore considered “examining medicalsource opinion(s).” Chapo v. Astrue, 682 F.3d. 1285, 1291 (10th Cir. 2012) see also 20 C.F.R. §§
404.1527(c)(1); 416.927(c)(1). Such opinions are “given particular consideration” in that they are
“presumptively entitled to more weight than a doctor’s opinion derived from a review of the
medical record.” Chapo, 682 F.3d at 1291. An examining medical-source opinion “may be
dismissed or discounted, of course, but such an act must be based on an evaluation of all of the
factors set out in the ... regulations and the ALJ must provide specific, legitmate reasons for

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rejecting it.” Id. (internal quotation marks omitted).7 Analysis under these factors applies to
examining medical-source opinions. See Chapo, 682 F.3d at 1291; see also 20 C.F.R. §§
404.1527(c); 416.927(c). The ALJ is not required to mechanically apply all of these factors in a
given case. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). It is sufficient if he
“provide[s] good reasons in his decision for the weight he gave to the [physician’s] opinions. Id.
But the duty to supply such reasons is the ALJ’s, neither the Commissioner nor the courts may
supply post-hoc reasons that the ALJ did not provide. See Kauser v. Astrue, 638 F.3d 1324, 1330
(10th Cir. 2011).
Because a psychological opinion may rest either on observed signs and symptoms or on
psychological tests, Dr. Smasal’s observations about Peterson’s limitations constitute specific
medical findings. See Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994). The ALJ
summarized both of Dr. Smasal’s reports but he did not discuss her findings regarding Peterson’s
functional limitations, nor did he state the weight he accorded her opinions. Because the ALJ
failed to provide any explanation of how he assessed the weight of Dr. Smasal’s findings, the
court cannot simply presume the ALJ applied the correct legal standards in considering Dr.
Smasal’s opinions. Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003).
The Commissioner’s argument that the ALJ implicitly rejected Dr. Smasal’s opinion
regarding Peterson’s mental limitations based upon Peterson’s failure to seek further treatment for
her mental impairments does not justify the ALJ’s failure to discuss that opinion evidence and
7

The relevant factors include: 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. Watkins v. Barnhart, 350 F. 3d 1297, 1301 (10th Cir. 2003).
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weigh it in accordance with the required factors. In rejecting a treating physician’s opinion, the
ALJ must first consider whether the opinion is well supported by medically acceptable clinical
and laboratory diagnostic techniques. Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir.
2004). Even if the reporting physician is not considered a “treating source” the ALJ can only
reject a medical opinion by weighing it under the required factors and providing “specific
legitimate reasons.” Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003). Contrary to the
Commissioner’s argument, the ALJ did not include Dr. Smasal’s reports in the exhibits he
identified as entitled to “little weight.” (R. 25). [Dkt. 25, at 9]. He specifically listed the PRT and
MRFC by Dr. Cummings and the Case Analysis by Don B. Johnson, Ph.D., by exhibit number but
he did not mention Dr. Smasal’s opinions in the portion of this decision where he discussed the
weight he assigned the medical evidence. (R. 25).8 At any rate, the explanation the ALJ offered
for assigning little weight to the opinions of the agency consultants who based their findings on
review of the record, including the reports by Dr. Smasal, was improper.
The ALJ gave “little weight” to the opinions of the agency consultants but he did not
engage in the analysis set forth by the Commissioner in her response brief. [Dkt. 25]. He did not
explain why his RFC incorporated some of the consultants’ opinions on Peterson’s mental
functioning while finding portions of their opinions were inconsistent with other medical evidence
in the record, as described in the Commissioner’s brief. [Dkt. 25, at 7-8]. While there is ample
evidence in the record to support the Commissioner’s arguments, judicial review is limited to the
reasons stated in the ALJ’s decision. Therefore, the Commissioner’s post hoc rationale is
improper because it usurps the agency’s function of weighing and balancing the evidence in the
first instance. See Allen v. Barnhart, 357 F.3d 1140, 1142, 1145 (10th Cir. 2004).
8

Dr. Smasal’s reports are identified in the record as Exhibits 5F and 13F.
19

The court agrees with Peterson that the ALJ’s decision is internally inconsistent as he
apparently included in his RFC some of the functional limitations assessed by Dr. Cummings but
then stated that it did not seem likely that Peterson has a severe mental condition because she has
not sought additional mental health treatment or medication, and so gave that medical opinion
little weight. (R. 25). Failure to pursue medical treatment is not a proper basis to reject a medical
opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) (ALJ’s rejection of
doctor’s opinion based upon speculative lay opinion that claimant failed to comply with
prescribed treatment is an improper basis to reject the treating physician’s opinion) (citing
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (An ALJ may not make speculative
inferences from medical reports and 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)).
It may be that, upon a full consideration of all the medical evidence and vocational factors
applicable in this case, the Commissioner would determine that Peterson is not disabled. Here,
however, the ALJ cut short the analysis and, by de facto rejecting all the medical evidence
regarding Peterson’s mental impairments, he failed to support his RFC assessment with
substantial evidence. A decision not supported by substantial evidence must be reversed.
Additionally, failure to apply the correct legal standard or to provide the court with a sufficient
basis to determine that appropriate legal principles have been followed is grounds for reversal.
Williams v. Bowen, 844 F.748, 750 (10th Cir. 1988) (citing Byron v. Heckler, 742 F.2d 1232,
12135 (10th Cir. 1984) (internal quotes omitted).
The undersigned finds that reversal is required due to errors of the ALJ in his discussion
and analysis of the opinion evidence of Dr. Smasal and the non-examining agency consultants.
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Conclusion
The Court takes no position on the merits of Peterson’s disability claim, and “[no]
particular result” is ordered on remand. Thompson v. Sullivan, 987 F.2d 1482, 1492-93 (10th Cir.
1993). This case is remanded only to assure that the correct legal standards are invoked in
reaching a decision based on the facts of the case. Angel v. Barnhart, 329 F.3d 1208, 1213-14
(10th Cir. 2003), citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
Based on the foregoing, the October 23, 2013, decision of the Commissioner denying
disability benefits to Claimant is REVERSED AND REMANDED for reconsideration.
Dated this 12th day of September, 2016.

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