Collins v. Commissioner of Social Security

Filing 26

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS the case for further administrative findings. Signed by Magistrate Judge Shon T. Erwin on 9/25/17. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BENJAMIN COLLINS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-16-1216-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
applications for benefits under the Social Security Act. The Commissioner has answered
and filed a transcript of the administrative record (hereinafter TR. ____). The parties have
consented to jurisdiction over this matter by a United States magistrate judge pursuant
to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES AND
REMANDS the Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
The Social Security Administration denied Plaintiff’s applications for disability

insurance benefits and supplemental security income initially and on reconsideration. An
administrative hearing was held and an Administrative Law Judge (ALJ) issued a favorable
decision. (TR. 124-130). On its own motion, the Appeals Council reviewed the

administrative decision and concluded that it lacked substantial evidence and contained
legal error. (TR. 208-212). As a result, the Appeals Council remanded the case for
additional administrative findings. (TR. 132-135). A second administrative hearing was
held and the same ALJ issued an unfavorable decision. (TR. 12-29). Following the second
decision, the Appeals Council denied Plaintiff’s request for review. (TR. 1-3). Thus, the
decision of the ALJ became the final decision of the Commissioner.
II.

THE FIRST ADMINISTRATIVE DECISION
The first administrative decision was dated June 2, 2014. (TR. 124-130). In the

decision, the ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since April 30, 2011, the alleged disability onset date. (TR.
126). At step two, the ALJ determined Mr. Collins had the following severe impairments:
chronic back pain; dysthymic disorder; generalized anxiety disorder; and personality
disorder. (TR. 126). At step three, the ALJ found that Plaintiff’s impairments did not meet
or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part
404, Subpart P, Appendix 1 (TR. 127).
At step four, the ALJ concluded that Mr. Collins had the residual functional capacity
(RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). The claimant can occasionally stoop, kneel, and crouch. He
can follow simple and detailed instruction but not complex.

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(TR. 128). Based on this RFC, the ALJ concluded that Mr. Collins had no ability to perform
his past relevant work. (TR. 129). Finally, based on Plaintiff’s RFC, advanced age, limited
education, and lack of transferrable skills, the ALJ concluded that Plaintiff was disabled
because there were no jobs he could perform. (TR. 129).
III.

THE APPEALS COUNCIL’S REMAND
On its own initiative, the Appeals Council reviewed the June 2, 2014 decision and

concluded that it lacked substantial evidence and contained legal error. (TR. 208-212).
Specifically, the Appeals Council concluded:


the ALJ failed to provide the required rationale citing evidence supporting
the RFC limitations,



the onset date of April 30, 2011 was not supported by the record, and



the ALJ failed to provide a rationale to support the credibility determination.

(TR. 132-133). Accordingly, upon remand, the Appeals Council ordered the ALJ to:


obtain additional evidence concerning the impairments the ALJ had deemed
severe, including, if warranted, a consultative examination and medical
source statements about what the claimant can still do despite his
impairments,



if necessary, obtain evidence from a medical expert (ME) to clarify the
nature, severity and onset date of the impairments,



further evaluate Plaintiff’s credibility, providing rationale in support,



further consider Plaintiff’s maximum RFC and provide appropriate rationale
with specific references to evidence of record in support of the RFC
limitations, and



if warranted, obtain evidence from a vocational expert (VE) to clarify the
effect of the assessed limitations on Mr. Collins’ occupational base.

(TR. 133-134).

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IV.

THE SECOND ADMINISTRATIVE DECISION
On March 1, 2016, a second administrative hearing was held and on April 1, 2016,

the ALJ issued an unfavorable decision. (TR. 12-29). In doing so, The ALJ followed the
five-step sequential evaluation process required by agency regulations. See Fischer-Ross

v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At
step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since June 7, 2011, the alleged disability onset date. (TR. 15).1 At step two, the ALJ
determined Mr. Collins had the following severe impairments: arthritis in the back;
multilevel spondylosis; dysthymic disorder; generalized anxiety disorder; and a
personality disorder. (TR. 15). At step three, the ALJ found that Plaintiff’s impairments
did not meet or medically equal any of the presumptively disabling impairments listed at
20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 16).
At step four, the ALJ concluded that Mr. Collins had the residual functional capacity
(RFC) to:
[P]erform medium work as defined in 20 CFR 404.1567(c) and 416.967(c).
Specifically, the claimant can lift and carry up to 50 lbs. occasionally and 25
lbs. frequently; stand and walk up to six hours in an eight-hour workday;
and sit up to six hours in an eight-hour workday. With regard to postural
activities, the claimant can occasionally stoop, kneel, and crouch. Mentally,
the claimant can understand and remember simple instructions and have
only occasional interaction with the public.
(TR. 18-19).

At the second hearing, Plaintiff agreed to amend the onset date from April 30, 2011 to June
7, 2011. See TR. 39-40.
1

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With this RFC, the ALJ found that Plaintiff was capable of performing his past
relevant work as a maintenance man. (TR. 27). Even so, the ALJ made alternate findings
at step five. At the March 1, 2016 hearing, the ALJ presented the limitations set forth in
the RFC, as outlined above, to a vocational expert (VE) to determine whether there were
other jobs in the national economy that Plaintiff could perform. (TR. 46). Given the
limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR.
46-47). The ALJ adopted the testimony of the VE and concluded at step five that Mr.
Collins was not disabled based on his ability to perform the identified jobs. (TR. 29).
V.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in: (1) his duty to develop the record,

instead improperly relying on stale evidence; (2) his evaluation of opinion evidence from
a medical expert (ME), consulting physicians, state agency physicians, and treating
physicians; (3) his evaluation of Plaintiff’s mental impairment; and (4) his evaluation of
Plaintiff’s RFC.
VI.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh

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the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
VII.

DUTY TO DEVELOP THE RECORD/USE OF STALE EVIDENCE
As stated, two administrative hearings took place in this case approximately two

years apart—on April 21, 2014 and March 1, 2016. (TR. 36-68). In his first proposition,
entitled: “Short Shrift Hearing,” Plaintiff argues that the ALJ failed to develop the record
by: (1) limiting his inquiry of Plaintiff at the second hearing to his age and level of
education and (2) relying on “stale” information and testimony from the April 2014
hearing “as the foundation of his decision.” (ECF No. 20:4). The Court agrees.
“It is well established that a Social Security disability hearing is a nonadversarial
proceeding, in which the ALJ has a basic duty of inquiry, to inform himself about facts
relevant to his decision and to learn the claimant's own version of those facts.” Thompson

v. Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993) (internal quotation marks and citations
omitted). In Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992), the court noted
that in a case where the claimant is unrepresented, the ALJ’s duty is “heightened” and
that “[t]he length, or brevity, of a benefits hearing is not dispositive” of whether or not
the ALJ had met his duty to develop the record. Id. at 1374. Instead, “the more important
inquiry is whether the ALJ asked sufficient questions to ascertain (1) the nature of a
claimant’s alleged impairments, (2) what on-going treatment and medication the claimant
is receiving, and (3) the impact of the alleged impairment on a claimant’s daily routine
and activities.” Id. at 1375.

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In Thompson, the plaintiff argued that the ALJ erred in his duty to develop the
record due to the brevity of the hearing and the ALJ’s failure to ask certain questions.

Thompson, 987 F.2d at 1492. The Circuit Court agreed, noting that although the plaintiff
was represented by counsel, the ALJ still had a duty to develop the record, and the scope
of questioning was dictated by the three-part inquiry outlined in Musgrave. See id.

Musgrave and Thompson are controlling in the instant case. As discussed, on its
own initiative, the Appeals Council examined the first decision and ultimately concluded
that it lacked substantial evidence and the ALJ had committed legal error. (TR. 208-212).
As a result, the Appeals Council specifically instructed the ALJ to: “further evaluate
Plaintiff’s credibility, providing rationale in support.” (TR. 134).
In the second decision, the ALJ evaluated Plaintiff’s credibility in conjunction with
the medical evidence. (TR. 19-27). First, the ALJ evaluated Plaintiff’s allegations
concerning his physical impairment, citing Mr. Collins’ testimony from the April 2014
hearing regarding the nature and location of Plaintiff’s pain, Plaintiff’s medication, daily
activities, and limitations on his abilities to sit, stand, walk, and lift. (TR. 18). Ultimately,
the ALJ discounted Mr. Collins’ credibility based on “new evidence” including testimony
from an ME, and records from a consultative examination. (TR. 20). The ALJ underwent
a similar analysis in evaluating Plaintiff’s credibility concerning his mental impairments—
first summarizing Plaintiff’s testimony from the 2014 hearing and ultimately, concluding
that Mr. Collins was “only somewhat credible.” (TR. 24, 27). In support of his findings,
the ALJ cited the 2014 hearing testimony as well as evidence which pre- and post-dated
the second hearing. (TR. 27).

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The ALJ technically complied with the Appeals Council’s directive to further
evaluate Mr. Collins’ credibility. But under Musgrave, the ALJ should have asked sufficient
questions at the second hearing “to ascertain (1) the nature of [Mr. Collins’] alleged
impairments, (2) what on-going treatment and medication [Mr. Collins] [wa]s receiving,
and (3) the impact of the alleged impairment on [Mr. Collins’] daily routine and activities.”

Musgrave, 966 F.2d at 1375. But instead, the ALJ’s inquiry at the second hearing was
limited to asking Plaintiff his age and level of education. (TR. 29). The limited inquiry,
combined with the ALJ’s reliance on testimony from 2014 constitutes reversible error. See

Thompson, 987 F.2d at 1492 (finding reversible error based on the ALJ’s failure to develop
the record, stating: “[i]t matters that Ms. Thompson was not asked enough questions or
the right questions at the hearing because her answers were needed by the ALJ as
evidence to support his determination of her credibility.”).
VIII. THE ALJ’S EVALUATION OF VARIOUS MEDICAL OPINIONS
Mr. Collins alleges legal error in the ALJ’s evaluation of opinions from: (1) the ME,
Dr. Darius Ghazi; (2) consulting physicians, Dr. S.A. Chaudry and Dr. R. Keith Green; (3)
state agency physicians, Drs. John Vorhies, Kenneth Wainner, and Howard Atkins; and
(4) treating physicians, Drs. Semeh Hanna and Maribel Colon-Santiago. The Court finds
error in the ALJ’s evaluation of opinions from Drs. Ghazi and Chaudry, and rejects
Plaintiff’s remaining allegations.
A.

ALJ’s Duty to Evaluate Medical Opinions

An ALJ must evaluate every medical opinion in the record, although the weight
given each opinion will vary according to the relationship between the disability claimant

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and the medical professional. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004);
20 C.F.R. § 416.927(d). In determining what weight to accord any medical opinion,
including that offered by a non-examining medical expert, an ALJ must consider:
(1) the length of the treatment relationship and the frequency of examination;
(2) the nature and extent of the treatment relationship,
(3) the degree to which the physician’s opinion is supported by relevant evidence;
(4) the 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.

Hamlin, at 1215, n. 7; 20 C.F.R. §§ 404.1527(e)(2)(iii) & 416.927(e)(2)(iii).
Additionally, the ALJ may not selectively review any medical opinion and must
provide a proper explanation to support his rationale in support of his findings. See Chapo

v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (“We have repeatedly held that [a]n ALJ
is not entitled to pick and choose through an uncontradicted medical opinion, taking only
the parts that are favorable to a finding of nondisability.”); Clifton v. Chater, 79 F.3d
1007, 1010 (10th Cir. 1996) (the ALJ must “discuss[ ] the evidence supporting [the]
decision” and must also “discuss the uncontroverted evidence he chooses not to rely
upon, as well as significantly probative evidence [the ALJ] rejects.”); Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007) (noting that the ALJ’s reasons stated in evaluating
medical opinions must allow for meaningful appellate review).

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B.

The ME’s Opinion

At the hearing, medical expert Dr. Ghazi testified. (TR. 42-44). Dr. Ghazi reviewed
Mr. Collins’ medical file, including a CT scan of Plaintiff’s back, and concluded that Plaintiff
could:


sit for 6 hours during an 8-hour workday,



stand and walk for approximately 4 hours during an 8-hour workday, with
breaks,



lift 20 pounds maximum, frequently, and



only occasionally stoop, kneel, crouch, be exposed to unprotected heights,
and climb a ladder.

(TR. 43).2 The ALJ gave Dr. Ghazi’s opinion “some weight.” (TR. 23). When comparing
the RFC to Dr. Ghazi’s opinion, the portion of the opinion the ALJ seemed to credit was
Plaintiff’s ability to only occasionally stoop, kneel, and crouch. Compare TR. 19 with TR.
43. The ALJ rejected the remainder of Dr. Ghazi’s opinions stating: (1) they were not
warranted by the evidence and (2) appeared to be based on Dr. Ghazi giving credence
to Plaintiff’s subjective allegations. (TR. 23). Neither rationale is accurate.
First, consultative examiner Dr. S.A. Chaudry opined even more restrictive
limitations in Plaintiff’s ability to sit, stand, and walk. (TR. 849). Thus, contrary to the
ALJ’s statement, Dr. Ghazi’s functional limitations are supported by other evidence in the
record. Even so, the Court should not speculate “what evidence” does or does not support

Dr. Ghazi appeared to render an opinion on Plaintiff’s ability to manipulate and handle objects,
but the extent of the opinion is unclear due to inaudible portions of the record. See TR. 43.
2

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Dr. Ghazi’s opinion, as the ALJ is tasked with the duty to explain his reasoning to ensure
proper review by this Court.
Second, Dr. Ghazi never stated that he was basing his opinions on Plaintiff’s
subjective allegations. See TR. 42-44 (Dr. Ghazi’s testimony). Indeed, such a conclusion
would seem inapposite, considering that Plaintiff did not testify at the second hearing.
While the ALJ may have concluded the Plaintiff’s subjective complaints did not warrant
the restrictions as opined by Dr. Ghazi, he was not entitled to reject the ME’s opinion on
this basis alone. See Medina v. Berryhill, 2017 WL 1862279, at *8 (D. Colo. May 8, 2017)
(“an ALJ may not substitute his judgment for that of a medical source based on the ALJ’s
conclusion that Plaintiff’s complaints are not credible.”) For these two reasons, the Court
concludes that the ALJ committed legal error in his treatment of the opinions from Dr.
Ghazi regarding Plaintiff’s functional limitations.
C.

Opinions from Consulting Physicians

The record contains evidence of a reports from two consulting physicians, Dr.
Chaudry and Dr. Green. (TR. 450-453, 845-858). Plaintiff contends the ALJ committed
legal error in the consideration of both opinions. (ECF No. 20:6-7, 12-14). The
undersigned agrees, but only with respect to Dr. Chaudry’s opinion.
Dr. Chaudry
On June 16, 2015, Dr. Chaudry examined Mr. Collins and opined he had a painful
range of motion in his lumbar spine in flexion, extension, rotation, and lateral movements,
along with bilateral paraspinous muscular tenderness. (TR. 846). Ultimately, Dr. Chaudry

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diagnosed Mr. Collins with lumbrosacral spine degenerative arthritis. (TR. 847). Regarding
functional limitations, Dr. Chaudry opined that Mr. Collins could:


Frequently lift up to 20 pounds,



Occasionally carry up to 20 pounds,



Sit and stand for one hour at a time, for a total of three hours of an eighthour workday,



Walk for 30 minutes at a time, for a total of two hours of an eight-hour
workday,



Frequently reach, handle, finger, feel, push, and pull with either hand,



Frequently use foot controls,



Occasionally climb ladders,



Frequently climb stairs, balance, stoop, kneel, crouch, and crawl,



Occasionally be exposed to unprotected heights, and



Frequently be exposed to moving mechanical parts, operating a motor
vehicle, humidity, dust, extreme heat or cold, and noise.

(TR. 848-852). Finally, Dr. Chaudry stated that Mr. Collins’ backache would “interfere[]
with physical activities.” (TR. 853).
The ALJ recited these opinions in decision and stated:
Dr. Chaudry’s opinion is given only “some weight” as his functional
assessments are not entirely consistent with his examination findings. For
instance, although he found the claimant had normal fine and gross
manipulative movements of the hand and 5/5 grip strength, he limited the
claimant to frequent (as opposed to unlimited) handling and fingering.
Further, with regard to the claimant’s exertional capacity, a painful range
of motion (a largely subjective complaint) does not warrant the level of
limitations opined, especially in light of the minimal objective evidence.

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(TR. 22-23). Mr. Collins contends that the ALJ’s rationales for discounting Dr. Chaudry’s
opinions lack substantial evidence. (ECF No. 20:6-7). The undersigned agrees.
Plaintiff challenges the ALJ’s statement that the functional assessments were not
entirely consistent with the examination findings. According to Plaintiff, the ALJ’s
comparison of an alleged inconsistency involving Plaintiff’s ability to handle and finger
was “disingenuous” because constant use of Plaintiff’s arms would necessarily exacerbate
Plaintiff’s back impairment. The Court rejects this particular argument because: (1) it
appears to be based only on Plaintiff’s counsel’s speculation and (2) the ALJ pointed to
specific evidence in the record which he believed showed an internal inconsistency in Dr.
Chaudry’s findings.
However, the ALJ’s lack of explanation regarding the remaining limitations render
the Court unable to properly review the ALJ’s treatment of Dr. Chaudry’s opinion. The
ALJ stated that the “functional assessments are not entirely consistent with [Dr.
Chaudry’s] examination findings.” (TR. 22) But aside from the manipulation limitations
discussed, the ALJ has not pointed to any inconsistency regarding any other “functional
assessment”—i.e.—Mr. Collins’ ability to sit, stand, walk, lift, carry, push, pull, balance,
stoop, kneel, crouch, and crawl, or be exposed to environmental limitations. The lack of
explanation renders the ALJ’s first rationale legally insufficient. See Allman v. Colvin, 813
F.3d at 1332 (“[t]he reasons must be sufficiently specific to make clear to any subsequent
reviewers the weight the [ALJ] gave to the treating source’s medical opinion and the
reason for that weight.”); Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004)
(noting that the ALJ’s rejection of a doctor’s opinion as “inconsistent with the overall case

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record,” was insufficient because the ALJ did not “specifically highlight those portions of
the record with which [the physician’s] opinion was allegedly inconsistent”).
The ALJ’s remaining rationale for discounting Dr. Chaudry’s opinion fares no better.
According to the ALJ, Plaintiff’s “exertional capacity” was not warranted because a
“painful range of motion,” was “a largely subjective complaint.” (TR. 23). But the ALJ is
mistaken, as Dr. Chaudry’s opinion was not based on Plaintiff’s subjective reports, but
the physician instead made the assessment after performing a full examination of Mr.
Collins. (TR. 845-858).
Neither of the ALJ’s rationales for discounting Dr. Chaudry’s opinion are sufficient.
First, although the ALJ relied on inconsistencies in Dr. Chaudry’s examination and his
ultimate findings, the ALJ failed to specifically identify any inconsistencies with regard to
the bulk of the limitations opined. Second, the ALJ incorrectly concluded that Dr.
Chaudry’s opinions had been based on subjective complaints alone. Because both
rationales for discounting Dr. Chaudry’s opinion lacked substantial evidence, reversal and
remand is warranted for reconsideration of the opinion.
Dr. Green
On January 7, 2013, Dr. Green performed a psychological examination on Plaintiff.
(TR. 450-453). Dr. Green diagnosed Plaintiff with a cognitive disorder, NOS; dysthymic
disorder; generalized anxiety disorder; pain disorder with both psychological factors and
a general medical condition; adverse effects of medication, NOS; and a personality
disorder. (TR. 452). Dr. Green found that Mr. Collins’ functional impairment was in the

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“mild-to-moderate” range, he was incapable of handling his finances, and his prognosis
was “poor.” (TR. 452-453).
The ALJ accorded “some weight” to Dr. Green’s opinion, noting that treatment
records supported Dr. Green’s conclusion that Plaintiff’s psychological symptoms were in
the “mild-to-moderate” range, but that Plaintiff’s hearing testimony contradicted Dr.
Green’s findings regarding Plaintiff’s ability to handle his finances. (TR. 26).
Mr. Collins challenges the ALJ’s treatment of Dr. Green’s opinion, arguing that the
ALJ “cherry-picked” Dr. Green’s opinion. (ECF No. 20:13). Specifically, Plaintiff states:
Dr. Green found history of social isolation, reduced attention, concentration
and pace were impaired, impaired capacity for new learning and paranoid
ideation. In assessing Plaintiff’s RFC, the ALJ found two limitations related
to Plaintiff’s mental impairments. The ALJ determined that Plaintiff “can
understand and remember simple instructions and have only occasional
contact with the public.” The ALJ made no findings about whether Mr.
Collins can respond appropriately to supervisors, co-workers, and usual
work situations, Plaintiff asserts that the ALJ’s mental RFC determination is
flawed because it does not reflect the limiting effects of his several mental
impairments.
(ECF No. 20:13-14). Plaintiff appears to believe that the ALJ “cherry-picked” Dr. Green’s
opinion by failing to include limitations in the RFC regarding Mr. Collins’ ability to respond
appropriately to supervisors, co-workers, and usual work situations. Plaintiff correctly
asserts that an ALJ may not selectively review a medical opinion, “taking only the parts
that are favorable to a finding of nondisability.” Chapo v. Astrue, 682 F.3d 1285, 1292
(10th Cir. 2012) (citing Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); Robinson

v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004), and Hamlin v. Barnhart, 365 F.3d
1208, 1219 (10th Cir. 2004)) (internal quotation marks omitted). But the argument is
inapplicable here, as Dr. Green never made any findings that Plaintiff was impaired in his
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ability to respond appropriately to supervisors, co-workers, and usual work situations.
Thus, the Court rejects Plaintiff’s challenge to the ALJ’s treatment of Dr. Green’s opinion.
D.

Opinions from State Agency Physicians

Next Plaintiff challenges the ALJ’s treatment of opinions from state agency
physicians Drs. John Vorhies, Kenneth Wainner, and Howard Atkins. The Court rejects
Plaintiff’s arguments.
Drs. Vorhies and Wainner
State agency physicians Drs. Vorhies and Wainner, who rendered opinions at the
initial and reconsideration determination levels, stated that Plaintiff had the exertional
capacity to perform “medium” work. (TR. 74-75, 101-102). In the first decision, the ALJ
granted these opinions “little weight.” (TR. 128). But in the second decision, the ALJ
accorded the opinions “great weight.” (TR. 23). Plaintiff argues that the ALJ’s different
treatment of the same evidence in the two decisions “reinforces the outcome
determinative nature” of the decision. (ECF No. 20:7). But beyond this statement, Mr.
Collins does not argue that the ALJ had committed legal error in reviewing the evidence
or that his treatment of the opinions lacked substantial evidence—the two bases of this
Court’s review. See Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (noting that
the court’s scope of review is “to determin[e] whether the factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.”). Thus, the Court rejects Plaintiff’s challenge to the ALJ’s treatment of the
opinions from Drs. Vorhies and Wainner.

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Dr. Atkins
At the initial disability determination level, Dr. Atkins assessed Plaintiff’s mental
impairments. (TR. 71-77, 82-87). In part, Dr. Atkins rendered two opinions—that Plaintiff
could: (1) perform simple tasks and (2) have brief and superficial interaction with the
general public. (TR. 77). The ALJ agreed that Mr. Collins was capable of performing simple
work, but discounted the second opinion. (TR. 26-27). In doing so, the ALJ correctly
stated that Dr. Atkins had based his conclusion on findings from a consultative examiner
who had diagnosed Plaintiff with a personality disorder, NOS, with avoidant and paranoid
features. See TR. 73, 77, 452. However, the ALJ stated that “the remaining evidence” did
not suggest that Plaintiff was so limited. (TR. 27). In support, the ALJ cited evidence that
Plaintiff was deemed “generally cooperative” and “ma[de] adequate eye contact.” (TR.
27).
Mr. Collins argues that the ALJ “utilized his own medical degree” to conclude that
findings regarding Plaintiff being cooperative and making adequate eye contact are
appropriate reasons for discounting Dr. Atkins’ opinion regarding Plaintiff’s ability to only
have superficial and brief interaction with the public. (ECF No. 20:15). While it is true that
the ALJ may not substitute his own opinion for that of Plaintiff’s doctor, Miller v. Chater,
99 F.3d 972, 977 (10th Cir. 1996), the Court finds that the ALJ did not do so in the instant
case. Instead, the ALJ merely weighed the evidence and discounted the opinion based
on other findings in the medical record. On review, This Court “will not reweigh the
evidence or substitute our judgment for the Commissioner’s.”) Lax v. Astrue, 489 F.3d

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1080, 1084 (10th Cir. 2007). Thus, the Court rejects Plaintiff’s challenge to the ALJ’s
treatment of Dr. Atkins’ opinion.
E.

Opinions from Treating Physicians

Plaintiff challenges the ALJ’s treatment of statements from two treating sources—
Drs. Hanna and Colon-Santiago. Neither argument has merit.
Dr. Hanna
In a treatment note dated December 12, 2013, Dr. Hanna stated that she had told
Plaintiff to “try and pursue an education career to help support his basic living
requirements since he used to work a physical job that was causing a physical stress.”
(TR. 649). The ALJ accorded “great weight” to Dr. Hanna’s “suggestion” that Plaintiff is
not disabled by his back pain, but accorded “little weight” to Dr. Hanna’s “implication”
that claimant avoid all physical work. (TR. 21). Plaintiff argues that the ALJ “cherrypicked” this opinion. (ECF No. 20:14). The undersigned disagrees.
Classic “cherry-picking” states that an ALJ may not pick and choose through a
particular uncontradicted medical opinion, selecting the portions that support his decision
but ignoring the contrary portions. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)
(emphasis added). Here, the ALJ did no such thing. The ALJ did not ignore any portion
of Dr. Hanna’s statement, nor did the statement itself constitute a “medical opinion,” but
could be better classified as “vocational advice.” See Moua v. Colvin, 541 F. App’x 794
(10th Cir. 2013) (treating physician’s treatment notes which “suggested [the claimaint]
explore job retraining and alternate employment” did not constitute a “medical opinion”);
20 C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2) (defining medical opinions as “judgments

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about the nature and severity of [a claimant’s] impairment(s), including [his] symptoms,
diagnosis and prognosis, what [he] can still do despite impairment(s), and [his] physical
or mental restrictions”).
Dr. Colon-Santiago
In a treatment note dated November 18, 2014, Dr. Colon-Santiago noted: “Pt
declines vocational rehab Referral.” (TR. 808). In the decision, the ALJ stated: “Dr. ColonSantiago’s assessment and opinion that the claimant would do well with vocational
rehabilitation is give [sic] great weight.” (TR. 22). Plaintiff argues “that great weight
cannot be squared with the ALJ’s decision to return Mr. Collins to his past work which
required physical exertion as a maintenance man.” (ECF No. 20:14). The Court disagrees.
The ALJ concluded that Mr. Collins was capable of performing his past relevant
work as a maintenance man. (TR. 27). However, this statement does not preclude Mr.
Collins from performing other work which he might learn through vocational
rehabilitation, nor does Dr. Santiago’s statement limit Mr. Collins to a particular exertional
level. The two statements are independent, not inconsistent. Thus, the Court rejects Mr.
Collins’ challenge to Dr. Santiago’s statement regarding vocational rehabilitation.
IX.

THE ALJ’S EVALUATION OF PLAINTIFF’S MENTAL IMPAIRMENT
Mr. Collins alleges the RFC failed to reflect limitations related to: (1) the “severe”

impairments at step two involving his anxiety disorder and personality disorder, which
manifested as paranoia and social isolation and (2) “moderate difficulties” the ALJ found
to exist in the areas of social functioning, and concentration, persistence, and pace. As a

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result of the allegedly defective RFC, Plaintiff argues that the resulting hypothetical to the
VE was likewise faulty. (ECF No. 20:8-12). The Court disagrees.
A.

ALJ’s Duty in Assessing the Mental RFC

In assessing an individual’s mental impairment, the ALJ must employ a “special
technique” which involves rating the degree of functional limitation under four broad
functional areas. 20 C.F.R. §§ 404.1520a(b)-(c) & 416.920a(b)-(c). This assessment is
documented on a Psychiatric Review Technique (PRT) form and is used to rate the
severity of the mental impairment at steps two and three of the sequential evaluation
process. See SSR 96-8p, 1996 WL 374184, at *6-7 (July 2, 1996).
Step four requires a more detailed assessment by itemizing various functions
contained in the broad categories summarized on the PRT. Id. In assessing the RFC, the
ALJ must consider the limitations and restrictions imposed by a claimant’s severe
impairments and express any mental limitations in terms of specific, work-related mental
activities he or she is able to perform. Id., at *6-7.
B.

No Error in the ALJ’s Evaluation of Mr. Collins’ Mental Impairment

At step two, the ALJ found that Mr. Collins suffered from “severe” mental
impairments involving: dysthymic disorder, generalized anxiety disorder, and a
personality disorder. (TR. 15). At step three, while evaluating whether Plaintiff’s mental
impairments met or equaled a listed impairment, the ALJ concluded that Mr. Collins
suffered from “moderate difficulties” in the areas of social functioning (due to his history
of social isolation and paranoia) and concentration, persistence, and pace. (TR. 17). At
step four, in the RFC determination, the ALJ concluded that Mr. Collins could understand

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and remember simple instructions and have only occasional interaction with the public.
(TR. 19).
Mr. Collins alleges the RFC failed to reflect limitations related to: (1) the “severe”
impairments involving an anxiety disorder and personality disorder, which manifested as
paranoia and social isolation and (2) “moderate difficulties” the ALJ found to exist in the
areas of social functioning, and concentration, persistence, and pace. (ECF No. 20:8-12,
16-20). As a result of the allegedly defective RFC, Plaintiff alleges that the resulting
hypothetical to the VE was likewise faulty. The Court disagrees.
Severe Impairments at Step Two and
Limitations Related to Social Isolation and Paranoia
At step two, the ALJ concluded that Plaintiff suffered from a “severe” anxiety
disorder and personality disorder. (TR. 15). Mr. Collins alleges that these impairments
caused limitations involving paranoia and social isolation. (ECF No. 20:17-20). Plaintiff
alleges: (1) the ALJ’s RFC which limited Plaintiff to “simple work” and “occasional public
contact” was insufficient and (2) the RFC should have reflected limitations in his ability to
respond appropriately to supervisors, peers, and usual work situations. (ECF No. 20:9,
17-20). The Court disagrees.
Once a claimant’s impairments are deemed severe at step two, the ALJ has a duty
to discuss their impact throughout the remainder of the disability determination. 20 C.F.R.
§§ 404.1545(a)(2) & 416.945(a)(2). Indeed, in formulating the RFC, the ALJ must discuss
the combined effect of all the claimant’s medically determinable impairments, both severe
and nonsevere. See Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). However, the
presence of an impairment, albeit severe, does not necessarily equate to corresponding
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limitations in the RFC. Cavalier v. Colvin, 2014 WL 7408430, at *2 (N.D. Okla. 2014). The
RFC need only include such limitations as the medical record substantially supports. See

Kirkpatrick v. Colvin, 663 F. App’x. 646, 650 (10th Cir. 2016) (“Clearly, an ALJ doesn't
commit error by omitting limitations not supported by the record”). Plaintiff argues that
the RFC failed to account for Mr. Collins’ “severe” personality disorder and anxiety
disorder, which manifested through paranoia and social isolation. Due to these
impairments and resulting limitations, Plaintiff believes the ALJ should have included
limitations relating to Plaintiff’s ability to respond appropriately to supervisors, coworkers, and usual work situations. The Court disagrees.
Plaintiff states that “medical records reflect clinicians’ observations that Plaintiff
suffered from paranoid delusions, not wanting to be around other workers, and
uncontrolled anger to medical providers which often interfered with his ability to interact
with other people.” (ECF No. 20:18-19). In support, Plaintiff cites a sole piece of
evidence—a report from Dr. Green who noted that Plaintiff exhibited signs of paranoia
and social isolation. (ECF No. 20:13; TR. 452). But Dr. Green never stated that these
impairments would result in specific, work-related limitations. (TR. 452). Dr. Green did
diagnose Plaintiff with “Personality Disorder NOS (with Avoidant and Paranoid Features),
but “[t]he mere diagnosis of a condition does not establish its severity or any resulting
work limitations.” (TR. 452); Paulsen v. Colvin, 665 F. App’x. 660, 666 (10th Cir. 2016).
Accordingly, the Court rejects Plaintiff’s argument regarding the ALJ’s failure to
incorporate RFC limitations reflecting: (1) the severe impairments of a personality

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disorder and/or anxiety disorder and (2) an inability to respond appropriately to
supervisors, co-workers, and usual work situations due to paranoia or social isolation.
Findings on the PRT Form
Plaintiff argues: (1) “the ALJ omitted, without explanation, impairments that he
found to exist, such as moderate difficulties in social functioning and maintaining
concentration, persistence, and pace” and (2) that the limitation “simple work” failed to
reflect these limitations. (ECF No. 20:9). This argument is without merit.
At step three, the ALJ concluded that Mr. Collins suffered from “moderate
difficulties” in the areas of social functioning and concentration, persistence, and pace.
(TR. 17). But because these findings were made at step three of sequential analysis, the
ALJ had no duty to express these particular findings in the RFC. See Vigil v. Colvin, 805 F.3d
1199, 1203 (10th Cir. 2015) (“The ALJ’s finding of a moderate limitation in concentration,
persistence, or pace at step three does not necessarily translate to a work-related
functional limitation for the purposes of the RFC assessment.”). For these reasons, the
Court concludes that the ALJ did not err in his evaluation of Plaintiff’s mental impairment.
No Error in the Hypothetical to the VE
Plaintiff also contends that the hypothetical to the VE was deficient because it
failed to include the limitations which Plaintiff believes were improperly withheld. The
Court should reject this argument, because it is premised on a finding that the RFC was
faulty, which is not the case. In Qualls v. Apfel, 206 F.3d 1368 (10th Cir. 2000), the Tenth
Circuit Court of Appeals rejected a similar argument, stating:
Finally, plaintiff contends that the ALJ’s hypothetical questions to the VE did
not recite all of plaintiff's impairments and, therefore, the VE’s answers to
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those questions could not serve as substantial evidence to support the ALJ’s
conclusion that plaintiff is not disabled. We have already rejected plaintiff's
challenges to the ALJ’s RFC assessment. The ALJ propounded a hypothetical
question to the VE that included all the limitations the ALJ ultimately
included in his RFC assessment. Therefore, the VE’s answer to that question
provided a proper basis for the ALJ’s disability decision.

Qualls v. Apfel, 206 F.3d at 1373. As in Qualls, the Court should reject Mr. Collins’
allegation that the hypothetical question to the VE was faulty based on a failure to include
certain limitations in the RFC.
X.

PLAINTIFF’S REMAINING ISSUE
Plaintiff also argues that the ALJ erred by failing to perform a “function by function”

analysis of Plaintiff’s physical RFC. (ECF No. 20:16). But the Court need not address this
allegation, as the physical RFC may be affected on remand following a re-evaluation of
the opinions from Drs. Ghazi and Chaudry, as well as Plaintiff’s own testimony. See

Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004) (“We will not reach the
remaining issues raised by claimant because they may be affected by the ALJ’s resolution
of this case on remand.”).
ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
The ALJ failed to ask Plaintiff any substantive questions at the second hearing, which
affected his ability to properly assess the current state of Mr. Collins’ alleged impairments,
his treatment, the impact of the alleged impairments on Plaintiff’s daily life, and his overall
credibility. The omission was critical, considering that approximately two years had
passed since the first administrative hearing and the Appeals Council had specifically
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directed the ALJ to re-evaluate Plaintiff’s credibility. The ALJ also erred in his evaluation
of the opinions from Drs. Ghazi and Chaudry, as discussed.
As a result, the Court REVERSES the Commissioner’s decision and REMANDS
the matter for further administrative findings. On remand, the ALJ is specifically directed
to: (1) conduct a thorough hearing to assess the current state of Plaintiff’s alleged
impairments and (2) re-evaluate the opinions of Drs. Ghazi and Chaudry, providing
reasoning which is supported by the record and would allow for proper appellate review.
ENTERED on September 25, 2017.

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