United States District Court, D. New Mexico
December 19, 2016
EVELYN OSBORN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Plaintiff's Motion to
Reverse and Remand to Agency for Rehearing with Supportive
Memorandum (Doc. 18) filed on May 4, 2016. Pursuant
to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the
parties have consented to me serving as the presiding judge
and entering final judgment. See Docs. 5, 10. Having
considered the record, submissions of counsel, and relevant
law, the Court finds Plaintiff's motion is well-taken and
will be granted.
September 22, 2011, Ms. Evelyn Osborn (Plaintiff)
protectively filed applications with the Social Security
Administration for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Titles II and XVI of
the Social Security Act. Administrative Record (AR) at 245-58.
Plaintiff alleged a disability onset date of March 15, 2008.
AR at 245, 253. Disability Determination Services determined
that Plaintiff was not disabled both initially (AR at 119-36)
and on reconsideration (AR at 137-66). Plaintiff requested a
hearing with an Administrative Law Judge (“ALJ”)
on the merits of her SSI application. AR at 184-86.
Plaintiff and a vocational expert (VE) testified during the
de novo hearing. See AR at 55-95. ALJ
Michelle K. Lindsay issued an unfavorable decision on
December 23, 2013. AR at 35-54. Plaintiff submitted a Request
for Review of Hearing Decision/Order to the Appeals Council
(AR at 34), which the council denied on May 28, 2015 (AR at
7-10). Consequently, the ALJ's decision became the final
decision of the Commissioner. Doyal v. Barnhart, 331
F.3d 758, 759 (10th Cir. 2003).
Applicable Law and the ALJ's Findings
claimant seeking disability benefits must establish that she
is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); see also 20 C.F.R. § 404.1505(a).
The Commissioner must use a five-step sequential evaluation
process to determine eligibility for benefits. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); see also Wall
v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
claimant has the burden at the first four steps of the
process to show: (1) she is not engaged in “substantial
gainful activity”; (2) she has a “severe
medically determinable . . . impairment . . . or a
combination of impairments” that has lasted or is
expected to last for at least one year; and (3) her
impairment(s) meet or equal one of the listings in Appendix
1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant's residual functional capacity
(RFC), she is unable to perform her past relevant work. 20
C.F.R §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv);
see also Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005) (citations omitted). “RFC is a
multidimensional description of the work-related abilities [a
claimant] retain[s] in spite of her medical
impairments.” 20 C.F.R. § 404, Subpt. P, App. 1
§ 12.00(B); see also 20 C.F.R.
§404.1545(a)(1). If the claimant meets “the burden
of establishing a prima facie case of disability[, ] . . .
the burden of proof shifts to the Commissioner at step five
to show that the claimant retains sufficient . . . RFC to
perform work in the national economy, given [her] age,
education, and work experience.” Grogan, 399
F.3d at 1261 (citing Williams v. Bowen, 844 F.2d
748, 751 & n.2 (10th Cir. 1988) (internal citation
omitted)); see also 20 C.F.R. §§
One of the process,  ALJ Lindsay found that while Plaintiff is
currently working part-time as a middle school lunch room
monitor, her earnings of approximately $324/month do not
reach substantial gainful activity levels. AR at 41. The ALJ
found, therefore, that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date,
March 15, 2008. AR at 41 (citing 20 C.F.R. §§
404.1571 et seq., 416.971 et seq.). At Step
Two, the ALJ concluded that Plaintiff “has the
following severe impairments: history of herniated discs in
cervical spine, status-post fusion; history [of] carpal
tunnel syndrome, status-post surgical release bilaterally;
diabetes mellitus, and hypertension . . . .” AR at 41
(citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The
ALJ found that Plaintiff's chronic cholecystitis and
cholelithiasis without biliary obstruction, fatty liver
disease, and obesity did not “have the requisite
limiting effects on [Plaintiff's] ability to perform
basic work activities” and were non-severe impairments.
AR at 41. And while the Plaintiff alleged “limitations
due to shoulder and back conditions, ” the ALJ noted
“the record is devoid of any such documented
conditions[, ] ongoing symptoms[, ]” or diagnoses. AR
at 43. Thus, the ALJ found that such limitations were not
medically determinable. AR at 43.
also noted that while the record evidence “supports
[diagnoses] of depression and anxiety, ” the treatment
has been conservative, Plaintiff “has received no
ongoing counseling or psychiatric care with no more than
basic medication management[, ]” and the conditions
appear to be “more situational than persistent.”
AR at 41 (citing AR at 535-66, 645). The ALJ found that
neither ongoing treatment records nor consultative
examinations demonstrated significant psychological or
cognitive abnormalities, and Plaintiff is frequently
non-compliant with her medications. AR at 41 (citing AR at
382-91, 523-25, 535-67, 569-81, 586-89, 595-607, 640-49,
657-79). Finally, the ALJ considered the fact that while
Plaintiff “originally alleged significant mental
problems, at the time of the hearing, she had no mental
complaints at all” and “testified that going out
and going to work was her ‘social-time.'” AR
at 42. In the ALJ's opinion, “[t]here seems to be
no evidence of any mental impairment-related functional
limitations, based on [Plaintiff's] own testimony.”
AR at 42.
making her determination regarding Plaintiff's mental
impairments, ALJ Lindsay considered the “paragraph
B” criteria - “four broad functional areas set
out in the disability regulations for evaluating mental
disorders . . . .” AR at 42 (citing 20 C.F.R. Part 404,
Subpart P, Appx. 1). The ALJ found that Plaintiff has no
limitations in either the first functional area (activities
of daily living) or in the second functional area (social
functioning). AR at 42. Plaintiff has a mild limitation in
the third functional area (concentration, persistence or
pace). AR at 42. The ALJ found that Plaintiff has experienced
no episodes of decompensation of extended duration, because
there is no evidence of hospitalization related to
Plaintiff's mental conditions. AR at 42. The ALJ
ultimately found that Plaintiff's mental impairments are
non-severe, because they cause no more than mild limitations
in the first three functional areas, and there were no
episodes of decompensation of extended duration in the fourth
area. AR at 42 (citing 20 C.F.R. §§
Three, the ALJ found that Plaintiff “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
1.” AR at 43 (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
416.926). At Step Four, the ALJ found that while
Plaintiff's “medically determinable impairments
could reasonably be expected to cause the alleged symptoms[,
] . . . [Plaintiff's] statements concerning the
intensity, persistence and limiting effects of these symptoms
are not entirely credible . . . .” AR at 44. The ALJ
considered the evidence of record as well as the opinions of
Plaintiff's treating physician, the consultative
psychologist and physicians, and Plaintiff's sisters and
brother. AR at 44-48. Ultimately, the ALJ found that
Plaintiff “has the residual functional capacity to
perform the full range of light work as defined in 20 [C.F.R.
§§] 404.1567(b) and 416.967(b).” AR at 43.
Lindsay concluded that Plaintiff is able to perform her past
relevant work as an educational assistant, which “does
not require the performance of work-related activities
precluded by” Plaintiff's RFC. AR at 48 (citing 20
C.F.R. §§ 404.1565, 416.965). The ALJ ultimately
determined that Plaintiff “has not been under a
disability, as defined in the Social Security Act, [since]
March 15, 2008 . . . .” AR at 49 (citing 20 C.F.R.
§§ 404.1520(f), 416.920(f)).
Court must “review the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds
for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161, 1166 (citation omitted). “Substantial evidence is
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Lax, 489 F.3d at 1084 (quoting Hackett, 395
F.3d at 1172 (internal quotation omitted)). “It
requires more than a scintilla, but less than a
preponderance.” Id. (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal
quotation omitted) (alteration in original)). The Court will
“consider whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases, but [it] will not reweigh the
evidence or substitute [its] judgment for the
Commissioner's.” Id. (quoting
Hackett, 395 F.3d at 1172 (internal quotation marks
and quotations omitted)).
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial evidence.”
Id. (quoting Zoltanski, 372 F.3d at 1200
(internal quotation omitted)). The Court “may not
‘displace the agenc[y's] choice between two fairly
conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de
novo.'” Id. (quoting Zoltanski,
372 F.3d at 1200 (internal quotation omitted)).
asserts that the ALJ failed to properly evaluate the opinions
and statements of (1) treating physician Ann S. Mercer, M.D.;
(2) consultative psychologist Michael R. Pitts, Psy. D.; (3)
consultative examining physician Carlos Pastrana, M.D.; (4)
consultative nonexamining physician Elizabeth Chiang, M.D.;
and (5) Plaintiff's sisters and brother. Doc. 18
Treating Physician Ann S. Mercer, M.D.
first argues that the ALJ improperly considered the opinion
of Plaintiff's treating physician, Dr. Ann Mercer.
Id. at 8-12. Plaintiff presents two main points of
contention: first, Plaintiff contends it was error for the
ALJ to find that Dr. Mercer's opinion was unsupported by
medical evidence or inconsistent with substantial evidence in
the record; and second, Plaintiff alleges that the ALJ did
not make her findings sufficiently clear. Id.
ALJs must follow a two-step inquiry when evaluating a
treating physician's opinion.
must consider all medical opinions found in the record.
Padilla v. Colvin, No. CV 14-495 CG, 2015 WL
10383109, at *4 (D.N.M. June 29, 2015) (citing 20 C.F.R.
§§ 404.1527(b), 416.927(b)). “Medical
opinions are statements from physicians and psychologists or
other acceptable medical sources that reflect judgments
about” a plaintiff's impairments. 20 C.F.R.
§§ 404.1527(a)(2), 416.927(a)(2). An opinion from a
treating physician is generally entitled to more weight than
either an examining or an agency physician. Padilla,
2015 WL 10383109, at *4 (citing Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (internal
ALJ should accord opinions of treating physicians controlling
weight when those opinions are well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
not inconsistent with other substantial evidence in the
record; this is known as the ‘treating physician
rule.'” Id. (citing 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Langley v. Barnhart,
373 F.3d 1116, 1119 (10th Cir. 2004) (internal citations
omitted)). “A treating physician's opinion is
accorded controlling weight because the treating physician
has a ‘unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as
consultative examinations.'” Id. (quoting
Doyal, 331 F.3d at 762 (internal quotation omitted,
alteration in original)).
the “treating physician's opinion is not supported
by medical evidence or consistent with the record, ”
id. (citation omitted), it is “still entitled
to deference and must be weighed using all of the factors
provided in 20 C.F.R. [§§] 404.1527 and
416.927.'” Robinson, 366 F.3d at 1082
(quoting Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003) (quoting Soc. Sec. Ruling, SSR 96-2p, Policy
Interpretation Ruling Titles II & XVI: Giving Controlling
Weight to Treating Source Medical Opinions, 1996 WL 374188,
at *4 (July 2, 1996))). The factors include:
(1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the
treatment relationship, including the treatment provided and
the kind of examination or testing performed; (3) the degree
to which the physician's opinion is supported by relevant
evidence; (4) consistency between the opinion and the record
as a whole; (5) whether or not the physician is a specialist
in the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ's attention which tend to
support or contradict the opinion.
Id. (quoting Watkins, 350 F.3d at 1300
(internal quotations omitted)). “When evaluating any
medical opinion in the record, the ALJ must give good reasons
- reasons that are ‘sufficiently specific to make clear
to any subsequent reviewers' - for the weight that [she]
ultimately assigns to” those opinions.
Padilla, 2015 WL 10383109, at *4 (quoting
Langley, 373 F.3d at 1119 (internal quotations
omitted)). The ALJ's “determination, like all of
[her] findings, must be supported by substantial
The ALJ's analysis is deficient at both steps of the
two-step treating physician
Lindsay concluded that Dr. Mercer's opinion was
“not consistent with her own ongoing treatment records
or the evidence of record as a whole, which shows little to
no objective findings of significant limitations.” AR
at 47. The ALJ specifically noted that Dr. Mercer's
“findings are inconsistent with the rather unremarkable
findings during the consultative examination and
[Plaintiff's] original admission of being able to lift
10-20 pounds.” AR at 47 (citing AR at 324-32, 590-94).
The ALJ did not, however, cite to a later self-report from
Plaintiff, wherein she states that she can lift 10 pounds or
less. AR at 348. Plaintiff repeated this assertion in her
examination with the consultative state agency physician, Dr.
Pastrana (which the ALJ said was “unremarkable”).
AR at 592.
those two alleged discrepancies, the ALJ failed to enunciate
how Dr. Mercer's opinion was inconsistent with the record
evidence. “It may be possible to assemble support for
this conclusion from parts of the record cited elsewhere in
the ALJ's decision, but that is best left for the ALJ
[herself] to do in the proceedings on remand.” See
Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011).
Court finds that the ALJ also failed to sufficiently discuss
the six deference factors at the second step of the inquiry.
Of the six factors, it is arguable, as discussed above, that
the ALJ gave scant attention to the fourth factor -
consistency between the opinion and the record as a whole.
ALJ Lindsay's cursory evaluation of Dr. Mercer's
opinion, however, did not adequately address any of
the six factors in depth. And while the ALJ cited to Dr.
Mercer's treatment records generally in other parts of
the opinion (see AR at 41, 45), she did not cite
with specificity to any records that may or may not have
supported the doctor's opinion. It is not enough for the ALJ
to generally refer to “the evidence of record as a
whole” (AR at 47), as that leaves the Court to guess at
what evidence she relied on in making that finding. See
Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir.
2001) (finding where “an ALJ does not provide any
explanation for rejecting medical evidence, [courts] cannot
meaningfully review the ALJ's determination”)
(citing Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996) (“holding ‘[i]n the absence of ALJ
findings supported by specific weighing of the evidence,
[courts] cannot assess whether relevant evidence adequately
supports the ALJ's conclusion'”); Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(“holding ALJ's listing of factors he considered
was inadequate when court was ‘left to speculate what
specific evidence led the ALJ to [his
the six deference factors might ultimately have supported the
ALJ's decision to give the opinion “little weight,
” this Court “cannot simply presume the ALJ
applied the correct legal standards in considering [Dr.
Mercer's] opinion” in the absence of express
analysis. See Robinson, 366 F.3d at 1083 (quoting
Watkins, 350 F.3d at 1301). ALJ Lindsay's
“apparent failure to consider any factor” in
depth “makes the ALJ's reasoning
insufficient.” See Andersen v. Astrue, 319 F.
App'x 712, 722 (10th Cir. 2009). On remand, the ALJ
should more closely examine these factors and, if the ALJ
decides to give Dr. Mercer's opinions less than
controlling weight, should support that decision with more
specific findings and references to the record.
Consultative Psychologist Michael R. Pitts, Psy. D.
alleges that the ALJ failed to properly consider the opinion
of consultative psychologist, Michael R. Pitts, Psy. D., who
examined Plaintiff on April 2, 2012. Doc. 18 at
13-14; see also AR at 587-89. Under
“Diagnostic Impressions, ” Dr. Pitts diagnosed
Dysthymic Disorder and Rule-Out Anxiety Disorder, NOS. AR at
589. He opined that her prognosis is fair. AR at 589. He
She is depressed and needs comprehensive mental health
treatment but has no medical insurance. She is able to manage
funds. Moderate impairment in concentration is reflected by
the mental status exam. She derails at times. There is no
evidence of memory impairment. She is cognitively able to
follow multistep directions up to a moderate level of
complexity but her impaired concentration is likely to
interfere with following directions at times. Persistence is
impaired by pain. This should be evaluated by a physician.
There is no evidence of interpersonal impairment. Ability to
adapt to changes on the job would be impaired only by
physical or pain symptoms.
AR at 589. The ALJ gave Dr. Pitts' opinion significant
weight “as to [Plaintiff's] ability to perform
multi-step tasks and directions, ” but she gave little
weight to his opinion that Plaintiff “might have some
difficulties concentrating.” AR at 47. The ALJ
explained that this latter part of Dr. Pitts' opinion
“is based on [Plaintiff's] own testimony (or really
lack thereof), that she was not having any additional issues
other than her neck, arm, and hand pain.” AR at 47.
“Moreover, ” the ALJ noted, Plaintiff's
“own reported activities support mild limitations in
concentration.” AR at 47 (citing AR at 324-32).
argues it was improper for the ALJ to “rely solely on
portions of the record that support the decision denying
benefits, and ignore evidence that is favorable to
[Plaintiff's] claim that she is disabled.” Doc.
18 at 13 (citing Hardman v. Barnhart, 362 F.3d
676, 681 (10th Cir. 2004) (internal citation omitted)). The
Commissioner asserts that it was appropriate to give this
part of Dr. Pitts' opinion little weight, because it was
“based on Plaintiff's own subjective reports, which
the ALJ had already deemed unreliable.” Doc.
22 at 12 (citing AR at 47, 588-89; White v.
Barnhart, 287 F.3d 903, 907 (10th Cir. 2001) (finding
that the ALJ appropriately discounted a treating
physician's opinion where the doctor's
“assessment was based on [the plaintiff's]
subjective assertions rather than objective medical
Court disagrees that Dr. Pitts' opinion regarding
limitations on concentration was solely based on
Plaintiff's own reports of pain. Dr. Pitts noted in the
“Mental Health Exam and Behavioral Observations”
section that Plaintiff made “three errors on reverse
serial sevens due to impaired concentration.” AR at
588-89. Dr. Pitts expressly noted that the “[m]oderate
impairment in concentration” that he found was
“reflected by the mental status exam” during
which he observed that Plaintiff “derails at
times.” AR at 589. It appears, therefore, that Dr.
Pitts' was based not only on Plaintiff's reports of
pain but on his observation when conducting the mental status
exam. Moreover, one could argue that Dr. Pitts may have
attributed limitations in concentration to Plaintiff's
anxiety and depression. It is unfortunate that Dr. Pitts did
not more clearly lay out the basis of his findings and
conclusions. See AR at 587-89.
reply, Plaintiff quotes Social Security Ruling 96-7p for the
proposition that “a finding that an individual's
statements are not credible, or not wholly credible, is not
in itself sufficient to establish that the individual is not
disabled. All of the evidence in the case record, including
the individual's statements, must be considered before a
conclusion can be made about disability.” Doc.
23 at 2 (quoting Soc. Sec. Ruling, SSR 96-7p, Titles II
& XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual's Statements,
1996 WL 374186, at *5 (July 2, 1996)). The relevant question
for the Court, then, is whether the ALJ considered all of the
relevant evidence in determining that Plaintiff has only a
mild limitation in concentration, persistence or pace, and
whether that decision is supported by substantial evidence.
AR at 42.
support of her finding that Plaintiff has a mild limitation
in the area of concentration, persistence or pace, the ALJ
[t]he evidence in the record, including the testimony of
[Plaintiff] at the hearing, shows that [she] is, for the most
part, able to sustain focus, attention and concentration long
enough to permit the timely and appropriate completion of
tasks commonly found in work settings. [Plaintiff] drives,
handles her own finances, needs no reminders for personal
care or medications, can follow both written and verbal
instructions well, and reported no significant difficulties
in handling stress or changes in routine.
AR at 42 (citing AR at 324-32). The ALJ discounted Dr.
Pitts' opinion due to her belief that he based his
findings (at least in part) on Plaintiff's self-reports
of pain. AR at 47. Yet, Dr. Pitts' reference to
Plaintiff's self-report of pain was in relation to her
limitations in persistence, not in
concentration. AR at 589 (“Persistence is
impaired by pain.”).
Mercer's answer to a question on the Medical Source
Statement also contradicts the ALJ's decision. In
response to the question: “[i]s it medically reasonable
to expect that this patient's ability to maintain
attention and concentration on work tasks throughout an 8
hour day is significantly compromised by pain[, ] prescribed
medication or both?, ” Dr. Mercer answered
“yes.” AR at 584 (cited by ALJ, AR at 47). The
Court finds it significant, however, that this portion of Dr.
Mercer's opinion was directly contrary to other evidence
of record. Most notably, Plaintiff's own responses to the
Function Report in “Section C - Information About
Abilities, ” where Plaintiff was directed to
“[c]heck any of the following items your illness,
injuries, or conditions affect, ” Plaintiff did
not mark the box for concentration either time she
completed this form. AR at 330 (signed Nov. 12, 2011; cited
by ALJ, AR at 44), 348 (signed Mar. 7, 2012). Plaintiff does
not offer, nor can the Court find, any evidence that
Plaintiff complained about problems concentrating to any of
her physicians. There are no records wherein Dr. Mercer
expressed concerns about Plaintiff having difficulty
maintaining attention and/or concentration other than her
referenced response on the Medical Source Statement. See,
e.g., AR at 382-91, 459-97, 535-66, 595-607, 640-49,
657-79 (cited by the ALJ throughout opinion). Nor did Dr.
Harold E. Alexander, Jr., M.D., a psychiatrist who saw
Plaintiff on three different occasions, ever mention impaired
concentration as a concern. AR at 394-98.
issue is a close one, and on remand, the ALJ should clarify
her findings on Plaintiff's limitations on concentration,
persistence and pace. The ALJ may wish to develop the record
with respect to this issue.
Consultative Examining Physician Carlos Pastrana,
asserts that the ALJ failed to properly evaluate the opinion
of consultative examining physician Carlos Pastrana, M.D.
Doc. 18 at 14-15. Specifically, Plaintiff contends
that while the ALJ discussed Dr. Pastrana's opinion, she
failed to state the weight she gave to the opinion.
Id. at 15 (citing 20 C.F.R. §§ 404.1527,
416.927; Soc. Sec. Ruling, SSR 96-6p, Policy Interpretation
Ruling Titles II & XVI: Consideration of Administrative
Findings of Fact by State Agency Medical and Psychological
Consultants and Other Program Physicians and Psychologists at
the Administrative Law Judge and Appeals Council Levels of
Administrative Review; Medical Equivalence, 1996 WL 374180
(July 2, 1996)). The Commissioner responds that the ALJ
“appropriately considered Dr. Pastrana's findings
that Plaintiff had only a slight decrease in range of motion
of the low back, full range of motion of the neck, and
otherwise normal physical findings.” Doc. 22
at 13 (citing AR at 45, 592; 20 C.F.R. §
is correct that the ALJ summarized Dr. Pastrana's
findings from his examination, but failed to specify what
weight she attributed to those findings. The parties did not
discuss whether this was harmless error. See Mays v.
Colvin, 739 F.3d 569, 578-79 (10th Cir. 2014) (citation
omitted) (“[A]n ALJ's failure to weigh a medical
opinion involves harmless error if there is no inconsistency
between the opinion and the ALJ's assessment of residual
functional capacity.”). On remand, the ALJ should state
what weight is given to Dr. Pastrana's opinion per the
regulations. See 20 C.F.R. §§ 404.1527,
Consultative Non-examining State Agency Physician Elizabeth
alleges that the ALJ failed to properly consider the
consultative non-examining state agency physician's
opinion of Dr. Elizabeth Chiang, M.D. Doc. 18 at 8.
Plaintiff notes that at the reconsideration level, Dr.
Chiang, who “considered the opinion of Dr. Pitts”
(id. at 14), “found [Plaintiff's] anxiety
disorder to be severe, resulting in a moderate limitation in
concentration, persistence or pace, and opined that
[Plaintiff] would be limited to work involving detailed but
not complex instructions.” Id. at 8 (citing AR
at 144-46). Plaintiff asserts that “[t]he ALJ
disregarded both Dr. Pitts['] and Dr. Chiang's
findings because she found Dr. Pitts' opinion to be based
on [Plaintiff's] testimony.” Id. at 14.
Plaintiff contends that the Tenth Circuit has held that this
reasoning is “insufficient . . . to discredit the
consultative physicians' opinions.” Id.
(citing Thomas v. Barnhart, 147 F. App'x 755,
759-60) (10th Cir. 2005)).
Court has already found that the ALJ may wish to develop the
record with respect to Dr. Pitts' opinion. A reevaluation
of Dr. Pitts' opinion may also change the ALJ's
evaluation of Dr. Chiang's opinion. The ALJ should
revisit this issue on remand.
Third-Party Statements of Plaintiff's Sisters and
argues that the ALJ did not properly consider the opinions
from her siblings. Doc. 18 at 15-16. Specifically,
Plaintiff argues that “[t]he reasons the ALJ gave to
reject the third party statements goes [sic] against the
policy of having third party statements evaluated.”
Id. at 16. The Commissioner did not respond to this
argument. See Doc. 22.
are required to consider all relevant evidence when making a
determination of disability. See Holcomb v. Astrue,
389 F. App'x 757, 760 (10th Cir. 2010) (citing Soc. Sec.
Ruling, SSR 06-03p, Titles II & XVI: Considering Opinions
and Other Evidence from Sources Who Are Not “Acceptable
Medical Sources” in Disability Claims; Considering
Decisions on Disability by Other Governmental and
Nongovernmental Agencies, 2006 WL 2329939 (Aug. 9, 2006)).
The regulations contemplate the consideration of evidence
from all sources, both medical and non-medical, including
“[s]pouses, parents and other caregivers, siblings,
other relatives, friends, neighbors, clergy, and
employers.” SSR 06-03p, at *2 (emphasis added).
“Information from these ‘other sources'
cannot establish the existence of a medically determinable
impairment.” Id. It may, however,
“provide insight into the severity of the impairment(s)
and how it affects the individual's ability to
evaluating the opinion evidence from Plaintiff's
siblings, ALJ Lindsay stated that she considered the opinions
from Plaintiff's “two sisters and brother” to
help her “understand some of the severity of
[Plaintiff's] various symptoms over time.” AR at
47-48 (citing AR at 360-63). She gave the opinions
“little weight with respect to assessing
[Plaintiff's] current functional limitations because of
their high degree of subjectivity, and their lack of
medically acceptable standards.” AR at 48.
the Tenth Circuit, an ALJ is not required to make
specific, written findings regarding each lay witness's
opinion when the written decision reflects that the ALJ
considered the testimony.” Croley v. Colvin,
Civ. No. 12-1101-JWL, 2013 WL 615564, at *5 (D. Kan. Feb. 19,
2013) (citing Blea v. Barnhart, 466 F.3d 903, 914-15
(10th Cir. 2006) (internal citations omitted); Adams v.
Chater, 93 F.3d 712, 715 (10th Cir. 1996)). Instead,
“[t]he decision must reflect that the ALJ included the
opinion in [her] consideration of disability, but [she] need
not specify the weight accorded to that opinion. Nonetheless
[she] may do so in explaining the rationale for
[her] decision.” Id. at *6.
required by the rules, it is clear that the ALJ considered
the non-medical opinions in her determination of the severity
of Plaintiff's “current functional
limitations.” AR at 48. She also explained that she
gave the opinions little weight, which is not required under
Tenth Circuit precedent. Croley, 2013 WL 615564, at
*6. Plaintiff is correct that the ALJ did not need to measure
the non-medical “other source” opinions against
any “medically acceptable standards.”
See SSR 06-03p. Plaintiff did not, however, cite any
authority for the proposition that the ALJ's statement
about the opinion evidence requires reversal and remand.
siblings' statements reiterate Plaintiff's own
testimony. All three siblings mention the opinion that stress
exacerbates Plaintiff's condition and echo
Plaintiff's own complaints of being unable to work
consistently due to pain. AR at 360-63; see also AR
at 63-90. Because Plaintiff has not presented any relevant
case law to support her position that the ALJ's opinion
requires reversal on this issue, nor has the Court found any
such authority, Plaintiffs motion is denied with respect to
Court finds that the ALJ failed to apply the correct legal
standards in assessing Dr. Mercer's and Dr.
Pastrana's opinions. The Court will grant Plaintiff's
motion and remand to allow the ALJ to conduct the proper
two-step analysis with respect to Dr. Mercer's opinion,
and to specify what weight was given to Dr. Pastrana's
opinion. The ALJ should also revisit the evaluation of Dr.
Pitts' opinion and consider developing the record on the
issue of Plaintiff's limitations in the area of
concentration, persistence and pace.
ORDERED that Plaintiff's Motion to Reverse and Remand for
a Rehearing with Supportive Memorandum (Doc. 18) is
GRANTED, and a final order pursuant to Rule 58 of the Federal
Rules of Civil Procedure will be entered.
 Documents 15-1 through 15-19 comprise
the sealed Administrative Record. See Doc. 15. The
Court cites the Administrative Record's internal
pagination, rather than the CM/ECF document number and
 Before engaging in the five-step
analysis, ALJ Lindsay noted that Plaintiff filed an
application for DIB on April 13, 2010, which was denied
initially and on reconsideration. AR at 38. Plaintiff did not
pursue the claim further. AR at 38. The ALJ found that, under
20 C.F.R. §§ 404.981 and 404.987-89, there is no
basis for reopening the previous decision. AR at 38.
Consequently, Plaintiff is unable to claim disability prior
to the final decision date of November 22, 2010. AR at
 On remand, the ALJ should take care to
explain whether the following records or treatment notes
support or detract from Dr. Mercer's opinion: the
referral to psychiatrist Harold E. Alexander, Jr., M.D.
(see AR at 394-98, 630-39); Plaintiff's report
to Dr. Pastrana that she could no longer make jewelry or
crafts (AR at 591); and Plaintiff's 2011 self-report that
clothing must be loose on her left arm due to nerve damage
(AR at 326). These latter two records directly contradict
findings the ALJ noted. See AR at 46. The ALJ should
also consider the records Plaintiff submitted after ALJ
Lindsay issued her opinion, which include records related to
a hospitalization due to suicidal ideation. AR at
 Plaintiff also argues that it was
improper for the ALJ to consider the fact that Plaintiff used
to work for Dr. Mercer as a factor in weighing Dr.
Mercer's opinion. Doc. 18 at 10-11. Plaintiff
does not cite to relevant case law, but the Court presumes
Plaintiff would support her position with the rule that an
ALJ “may reject a treating physician's opinion
outright only on the basis of contradictory medical evidence
and not due to his or her own credibility judgments,
speculation or lay opinion.” Langley, 373
F.3d at 1121 (quoting McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir. 2002) (internal quotations omitted)).
On remand, the ALJ must ensure that, if Dr. Mercer's
opinion merits less than controlling weight, the ALJ supports
that finding with specific, legitimate reasons after
considering the six deference factors. See Frey v.
Bowen, 816 F.2d 508, 513 (10th Cir. 1987) (citation
omitted); Padilla, 2015 WL 10383109, at *5.
 Otherwise, nothing from Dr. Pitts'
examination appears directly relevant to limitations on
Plaintiff's concentration. In fact, Dr. Pitts found that
Plaintiff's speech was normal, she was “outgoing
with good social skills[, ]” she was “oriented
times four and answer[ed] four of four information questions
correctly[, ]” she was “able to calculate reverse
serial threes with no errors[, ]” her
“[i]mmediate recall, delayed recall, and distant recall
are all intact[, ]” and she was “able to abstract
common proverbs and abstract via similarities.” AR at
588. Overall, Plaintiff gave Dr. Pitts a detailed background
about herself and her health issues, and Dr. Pitts recorded
no other observations about impairments in Plaintiff's
concentration. AR at 587-89.