United States District Court, D. New Mexico
December 19, 2016
BERNADETTE JOYCE MARTINEZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO
HONORABLE GREGORY J. FOURATT, UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff's “Motion
to Reverse or Remand Administrative Agency Decision”
(“Motion”) [ECF No. 15]. At the time of her
disability application, Plaintiff was 30 years old. She
insisted she was disabled due to post-traumatic stress
disorder (“PTSD”) and depression arising from the
loss of custody of her children during a time when she was
incarcerated for a parole violation. Having meticulously
reviewed the entire record, considered the parties'
arguments, and being otherwise fully advised, the Court
concludes that substantial evidence supports the
Commissioner's decision to deny benefits and that the
proper legal standards were applied. Therefore, and for the
following reasons, the Court will DENY Plaintiff's
14, 2014, Plaintiff Bernadette Martinez applied for
disability insurance benefits, alleging that her disability
began on December 31, 2013. Administrative R.
(“AR”) 208-09. Plaintiff's application was
initially denied on November 5, 2014 [AR 155-61], and upon
reconsideration on January 14, 2015. AR 162-66. Plaintiff
then filed a written request for hearing, and, on August 25,
2015, Administrative Law Judge (“ALJ”) Myriam
Fernandez Rice held a video hearing from Albuquerque, while
Plaintiff appeared in Santa Fe. Plaintiff testified at the
hearing and was represented by counsel. The ALJ also heard
testimony from Pamela Bowman, an impartial vocational expert.
November 4, 2015, the ALJ issued a decision, finding that
Plaintiff had not been under a disability within the meaning
of the Social Security Act since the date of her application.
AR 14-24. Plaintiff requested the ALJ's decision be
reviewed by the Appeals Council, and, on February 16, 2016,
the Appeals Council denied review. AR 1-3. Consequently, the
ALJ's decision became the final decision of the
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), a court may review a final
decision of the Commissioner only to determine whether the
decision is supported by substantial evidence and whether the
correct legal standards were applied. See 42 U.S.C.
§ 405(g) (2015); see also Maes v. Astrue, 522
F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v.
Sec'y of Health & Human Servs., 961 F.2d 1495,
1497-98 (10th Cir. 1992)). If substantial evidence supports
the ALJ's findings and the correct legal standards were
applied, the Commissioner's decision stands, and the
plaintiff is not entitled to relief. See Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); see
also Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004). “The failure to apply the correct legal
standards or to provide this court with a sufficient basis to
determine that appropriate legal principles have been
followed is grounds for reversal.” Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal
quotation marks omitted). “In reviewing the ALJ's
decision, ‘we neither reweigh the evidence nor
substitute our judgment for that of the agency.'”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008) (quoting Casias v. Sec'y of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir.
1991)); see also Hamlin, 365 F.3d at 1214
(“[B]ecause our review is based on the record taken as
a whole, [the Court] will meticulously examine the record in
order to determine if the evidence supporting the
agency's decision is substantial …”).
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003) (quoting Fowler v. Bowen, 876 F.2d 1451, 1453
(10th Cir. 1989)). “A decision is not based on
substantial evidence if it is overwhelmed by other evidence
in the record or if there is a mere scintilla of evidence
supporting it.” Langley, 373 F.3d at 1118
(quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th
Cir. 1988)). “The record must demonstrate that the ALJ
considered all of the evidence, but an ALJ is not required to
discuss every piece of evidence.” Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation
omitted). “Rather, in addition to discussing the
evidence supporting his decision, the ALJ also must discuss
the uncontroverted evidence he chooses not to rely upon, as
well as significantly probative evidence he rejects.”
Id. at 1010. “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's findings from being supported
by substantial evidence.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
SUMMARY OF ARGUMENTS
argues the ALJ's decision is both not supported by
substantial evidence and is legally erroneous. Pl.'s Mot.
to Reverse or Remand Administrative Agency Decision
(“Pl.'s Mot”), ECF No. 15. Plaintiff claims
the ALJ erred: (i) in evaluating medical opinion evidence,
and (ii) in her consideration of testimony by a vocational
expert. Mem. in Support of Pl.'s Mot. to Reverse or
Remand Administrative Agency Decision (“Pl.'s
Mem.”) 18-26, ECF No. 16. Defendant argues the
ALJ's decision is supported by substantial evidence, as
she reasonably evaluated the entire record, including medical
source opinions and Plaintiff's statements. Def.'s
Br. in Resp. to Pl.'s Mot. to Reverse and Remand the
Agency's Administrative Decision (“Def.'s
Resp.”), ECF No. 18.
APPLICABLE LAW AND SEQUENTIAL EVALUATION PROCESS
purposes of Social Security disability insurance benefits,
the term “disability” means “inability 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) (2015). To
determine if an individual is disabled, the Social Security
Administration utilizes a five-step sequential evaluation
process, 20 C.F.R. § 404.1520 (2015), with each step
being followed in order. Id. § 404.1520(4). If
it is determined that the individual is or is not disabled at
a step of the evaluation process, the evaluation will not go
on to the next step. Id.
claimant bears the burden of establishing a prima facie case
of disability at steps one through four. Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).
At step one, the claimant must show “that he is not
presently engaged in substantial gainful activity;” at
step two “that he has a medically severe impairment or
combination of impairments;” at step three that the
impairment is “equivalent to a listed
impairment;” and, at step four, “that the
impairment or combination of impairments prevents him from
performing his past work.”
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005) (quoting Williams, 844 F.2d at 750-52). At
step five, “the burden shifts to the Commissioner to
show the claimant retains sufficient residual functional
capacity (RFC) to perform work in the national economy, given
his age, education, and work experience.” Id.
(quoting Williams, 844 F.2d at 751).
November 4, 2015, the ALJ issued a decision denying
Plaintiff's application for benefits. In doing so, the
ALJ conducted the five-step sequential evaluation process. AR
14-24. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December 31,
2013, the date of her alleged disability onset. At step two,
the ALJ determined Plaintiff had the following severe
impairments: posttraumatic stress disorder, depression, and a
personality disorder. The ALJ found these impairments to be
severe because they “cause significant limitations in
the [Plaintiff's] ability to perform basic work
activities.” AR 16.
three, the ALJ concluded that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. In reaching this
conclusion, the ALJ reviewed Plaintiff's subjective
statements regarding her condition and daily living,
objective medical reports, and opinion evidence. The ALJ also
evaluated Plaintiff's mental impairments under Listings
12.04, 12.06, and 12.08. AR 17-18.
solely on Plaintiff's mental impairments, the ALJ first
found she experiences a mild restriction in her activities of
daily living. The ALJ based this finding on Plaintiff's
ability to perform personal care activities, including
preparing meals, doing household chores, shopping, and
driving. Next, the ALJ found that Plaintiff experiences
moderate difficulties in social functioning. She premised
this finding on Plaintiff's reports about social phobias
as well as the state agency psychological consultant's
opinion. Lastly, the ALJ found Plaintiff experiences moderate
difficulties with regard to concentration, persistence, and
pace, which she based on Plaintiff's testimony as well as
the state agency psychological consultant's report. AR
considering all of these factors, the ALJ determined that
Plaintiff's mental impairments did not satisfy the
paragraph B criteria for Listings 12.04 (affective
disorders), 12.06 (anxiety and obsessive-compulsive
disorders), or 12.08 (personality disorders) because her
mental impairments had not caused any episodes of
decompensation. Based on the evidence, the ALJ also
determined that the paragraph C criteria were not
satisfied. AR 17-18.
step four, the ALJ determined Plaintiff had the following
residual functional capacity (“RFC”):
[T]o perform a full range of work at all exertional levels
but with the following nonexertional limitations: The
[Plaintiff] is able to perform unskilled work where
interpersonal contact is incidental, e.g. assembly work;
tasks are no more complex than those learned and performed by
rote, with few variables and little judgment; and supervision
required is simple, direct, and concrete. The [Plaintiff] is
limited to only occasional interaction with the public and
AR 18. In support of this RFC assessment, the ALJ found that
“[Plaintiff's] medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, [Plaintiff's] statements concerning the
intensity, persistence and limiting effects of these symptoms
are not credible . . . .” AR 19. Then, the ALJ detailed
the many factors she considered. The ALJ explained her
reasoning for assigning very little weight to the opinions of
Dr. Leslie Hayes, Plaintiff's treating physician, and
Tracey Garcia, Plaintiff's therapist. The ALJ also
related her reasoning for assigning little weight to Michael
Cummings, the state agency consultative psychologist. AR
18-22. Ultimately, the ALJ concluded that “[o]verall,
the medical evidence fails to support the [Plaintiff's]
allegation of disabling symptoms and limitations.”
Despite her claims, “[Plaintiff] reported she had never
been hospitalized for mental issues; [never] experienced any
suicide attempts; and was not taking any medication for
mental issues.” AR 21.
previously worked as a customer service representative and a
special education teacher aide. At step four, the ALJ
determined she was unable to perform her past work, given her
RFC. AR 22-23. At the fifth and final step, the ALJ noted
that Plaintiff was born on October 15, 1983, and was
therefore 30 years old as of the alleged disability onset
date, which is considered to be a “younger
individual” pursuant to 20 C.F.R. § 404.1563. The
ALJ further noted that Plaintiff has at least a high school
education, is able to communicate in English, and stated
“[t]ransferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the [Plaintiff] is ‘not disabled, ' whether or
not [she] has transferable job skills.” AR 23.
determining that Plaintiff could not return to her past work,
the ALJ asked the vocational expert to consider whether there
were jobs that existed in the national economy for an
individual with Plaintiff's age, education, work
experience, and residual functional capacity. AR 23-24. The
vocational expert identified three jobs that such an
individual would be capable of performing, including:
industrial cleaner (DOT 381.687-018), laborer/polisher (DOT
706.687-014), and laundry folder (DOT 361.587-010). AR 23.
Subsequently, the ALJ concluded that Plaintiff is
“capable of making a successful adjustment to other
work that exists in significant numbers in the national
economy” and therefore she was not disabled under the
meaning of the Act from December 31, 2013 through the date of
the decision. AR 24.
Medical Opinion Evidence
challenges the ALJ's treatment of medical opinions
offered by Dr. Leslie Hayes, Michael Cummings, and Tracey
Garcia. The Court concludes the ALJ did not err in evaluating
Leslie Hayes, M.D.
records reflect that Dr. Leslie Hayes served as
Plaintiff's primary physician since September 2012, when
Plaintiff first sought treatment following a sexual assault
one month prior. AR 384-87. Between September 2012 and
November 4, 2015, the date of the ALJ's decision,
Plaintiff was treated by Dr. Hayes on approximately 26
occasions, for issues ranging from insomnia to supervision of
a high-risk pregnancy. AR 342-74, 378-87, 413-14, 417-29,
432-33. In a letter dated May 3, 2014, Dr. Hayes wrote that
Plaintiff suffered from PTSD and depression. She also opined
that Plaintiff would be expected to be absent from work
approximately twenty (20) days per month. AR 317. On November
25, 2014, Dr. Hayes wrote another letter about
Plaintiff's high-risk pregnancy in which she stated it
would be stressful for her to leave her home two times per
week. AR 402.
“Treating Source Opinion Re: Ability To Do Mental
Work-Related Activity” dated August 11, 2015, Dr. Hayes
assessed Plaintiff in 25 categories related to workplace
skills and abilities. Dr. Hayes assessed Plaintiff was
“very good” in six categories, “limited but
satisfactory” in nine categories, and “seriously
limited” in ten categories. Dr. Hayes did not assess
Plaintiff as “no useful ability to function, ”
the most extreme assessment, in any category. In support of
her assessments, Dr. Hayes provided only two sentences:
“Has a hard time controlling her emotions, very
unpredictable. Although she is quite functional in many
areas, when her depression & anxiety hit, she is unable
to accomplish anything.” Dr. Hayes opined that
Plaintiff would miss more than four days per month because of
her condition. AR 309-10.
assigned “very little weight” to Dr. Hayes's
opinions, finding them inconsistent with the record as a
whole, including Plaintiff's daily activities,
self-reported activities, and medical treatment. AR 22. In
support of this, the ALJ detailed the medical records from
Dr. Hayes she reviewed and what she found to be notable.
Though Dr. Hayes opined Plaintiff's symptoms were so
severe that she would miss work twenty (20) days per month
due to her mental condition, the ALJ noted Dr. Hayes's
treatment notes did not indicate Plaintiff had any mental
abnormalities upon examinations. AR 19-22.
also described why Plaintiff's reports of her daily
activities are inconsistent with someone who is disabled, as
Dr. Hayes had recommended. By citing to Plaintiff's
reports of her own daily activities, the ALJ established that
Plaintiff was independent in her self-care activities, as she
could drive, prepare meals, do chores, and socialize with
others, among other activities. Thus, a disability finding
was unsupported. AR 22.
argues the ALJ's analysis of Dr. Hayes's opinions
violated the treating physician rule because she took bits of
information from the record out of context to support her
determination and did not properly weigh the opinions against
the regulatory factors set forth in 20 C.F.R. §§
404.1527 and 416.927. Pl.'s Mem. 18-19. Defendant
contends the ALJ permissibly assigned Dr. Hayes's opinion
“very little weight” and sufficiently explained
her reasons for doing so. Specifically responding to
Plaintiff's arguments that the ALJ misapplied the
treating physician rule, Defendant argues that an ALJ need
not expressly consider each factor in deciding what weight to
give a medical opinion. Rather, an ALJ need only be
sufficiently specific to give subsequent reviewers a clear
understanding of the ALJ's decision-making process.
Def.'s Resp. 8-9.
Treating Physician Rule
the regulations, the agency rulings, and our case law, an ALJ
must ‘give good reasons in [the] notice of
determination or decision' for the weight assigned to a
treating physician's opinion.” Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting
20 C.F.R. § 404.1527(d)(2)). The notice of determination
or decision “must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator
gave to the treating source's medical opinion and the
reasons for that weight.” Id. (quoting SSR
96-2p, 1996 WL 374188, at *5). When evaluating a treating
source medical opinion as to the nature or severity of an
individual's impairments, an ALJ should
“[g]enerally . . . give more weight to opinions from
[claimant's] treating sources.” 20 C.F.R. §
404.1527(d)(2). “The treating physician's opinion
is given particular weight because of his 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 or
brief hospitalizations.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004) (citing Doyal v.
Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)).
reviewing the opinions of a treating physician, an ALJ must
proceed sequentially. Watkins, 350 F.3d at 1300.
First, an ALJ must consider whether the medical opinion is
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” Id.
(quoting SSR 96-2p, 1996 WL 374188, at *2). If the ALJ finds
that the medical opinion is well-supported by such
techniques, he or she must then confirm it is consistent with
other substantial evidence in the record. Id.
“[I]f the opinion is deficient in either of these
respects, then it is not entitled to controlling
Tenth Circuit has explained that resolving whether a medical
opinion is entitled to controlling weight does not
conclude the analysis:
[A]djudicators must remember that a finding that a treating
source medical opinion is not well-supported by medically
acceptable clinical and laboratory diagnostic techniques or
is inconsistent with the other substantial evidence in the
case record means only that the opinion is not entitled to
“controlling weight, ” not that the opinion
should be rejected. Treating source medical opinions are
still entitled to deference and must be weighed using all of
the factors provided in 20 C.F.R. § 1527 and 416.927.
Id. (quoting SSR 96-2p, 1996 WL 374188, at *4). The
factors set forth in § 1527 and 416.927 are:
(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. at 1301 (citing Drapeau v. Massanari,
255 F.3d 1211, 1213 (10th Cir. 2001)). Not every factor is
applicable in every case, nor should all six factors be seen
as absolutely necessary. What is absolutely necessary,
though, is that the ALJ give good reasons - reasons that are
“sufficiently specific to [be] clear to any subsequent
reviewers” - for whatever weight she ultimately assigns
to the opinions. Langley, 373 F.3d at 1119 (10th
Cir. 2004). Further, if an ALJ rejects the medical opinion in
its entirety, he or she must provide “specific,
legitimate reasons” for doing so. See Miller v.
Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
Court concludes that the ALJ did not violate the treating
physician rule in evaluating Dr. Hayes's opinions. It is
clear from the ALJ's decision that she evaluated all of
the medical opinion evidence, including Dr. Hayes's
opinions, in accordance with the requirements of SSR 96-2p.
See AR 18. Although the Court would have preferred
the ALJ offer more explanation, her decision to assign those
opinions “very little weight” was explained
sufficiently enough to permit meaningful judicial review.
does not require that a treating physician's opinions be
weighed against each of the Watkins factors.
Although the ALJ did not explicitly mention which factors she
weighed Dr. Hayes's opinions against, her written
decision reflected that she did consider at least the first
four factors, namely: (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; and (4)
consistency between the opinion and the record as a whole.
See AR 19-22. The ALJ described in great detail the
medical records from Dr. Hayes that she reviewed, including
Plaintiff's presentation during numerous appointments,
effects of prescription medication, and the treatment plan
she was following at various stages of her medical care. The
ALJ further described Plaintiff's own testimony of her
self-reported activities, which created a factual conflict
with Dr. Hayes's opinions. For example, Dr. Hayes opined
that Plaintiff's symptoms render her unable to be out in
public. AR 20. In contrast, Plaintiff reported being able to
go out alone, shop for groceries, and socialize with others.
AR 17. It is the province of the ALJ to resolve conflicting
evidence like this. Upon subsequent review, this Court must
only determine whether the ALJ provided sufficiently clear
reasons for the weight she assigned to Dr. Hayes's
opinions. The Court holds that the ALJ's explanation
regarding Dr. Hayes's opinions is sufficiently precise to
allow for meaningful review, and therefore not legally
Michael Cummings, Ph.D.
Cummings is a psychologist who served as a consultative
examiner at the request of the state agency. He evaluated
Plaintiff on October 16, 2014, for PTSD, severe depression,
nausea, and body pain. Moreover, he conducted a mental status
evaluation and a social history with Plaintiff in preparation
for his assessment. He also reviewed records including four
sections of the Disability Report - Adult Form SSA 3368. AR
Cummings's report relied heavily on Plaintiff's
subjective statements about her condition. For example, he
noted that “[b]ased on her reported symptoms, she
experiences panic.” AR 326-30. Nevertheless, he did
make independent findings based on his evaluation. The
critical portion of his findings is as follows:
She is not limited in his [sic] ability to understand and
remember very short and simple instructions. She is mildly
limited in understanding and remembering detailed or complex
instructions. She is mildly limited in her ability to carry
out instructions or attend and concentrate. She is moderately
limited in her ability to work without supervision. Her
ability to interact with the public, coworkers, and
supervisors is markedly limited. Her ability to adapt to
changes in the workplace, be aware of normal hazards and
react appropriately is markedly limited. Her ability to use
public transportation or travel to unfamiliar places is
discussed the findings from Dr. Cummings's consultative
examination, including Plaintiff's subjective reports
about her condition. She thoroughly summarized the relevant
parts of his opinion but ultimately found that “as his
opinion was based on a one-time snapshot of the
[Plaintiff's] functioning and clearly based more on the
[Plaintiff's] subjective complaints, I have assigned
little weight to his opinion.” AR 22.
takes issue with the ALJ assigning “little
weight” to Dr. Cummings's consultative opinion. She
argues his findings are significant “because [they]
indicate that Plaintiff is disabled.” Pl.'s Mot.
22. Plaintiff further argues “[b]ecause ALJ improperly
discounted Dr. Cummings's opinion, her decision is not
supported by substantial evidence and [sic] erroneous.”
Id. at 23.
argues to the contrary, stating “the ALJ permissibly
assigned little weight to Dr. Cummings's opinion”
that Plaintiff was markedly limited in certain areas.
Def.'s Resp. 10. Furthermore, Defendant cites multiple
statements from the ALJ in regards to Dr. Cummings, arguing
the ALJ sufficiently explained why she assigned his opinion
little weight. Id.
Secretary has broad discretion in ordering consultative
examinations. See Hawkins v. Chater, 113 F.3d 1162,
1166 (10th Cir. 1997) (citing Diaz v. Sec'y of Health
& Human Servs., 898 F.2d 774, 778 (10th Cir. 1990)).
“[W]here the medical evidence in the record is
inconclusive, a consultative examination is often required
for proper resolution of a disability claim.”
governing regulations require that “[r]egardless of its
source, ” the ALJ “will evaluate every medical
opinion” received. 20 C.F.R. § 404.1527(c) (2016).
The regulations define medical opinions as “statements
from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity
of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.” Id.
§ 404.1527(a)(2). Social Security Ruling 96-6p provides
guidance on how to consider opinions of consultative
examiners, including opinions of psychological consultants.
SSR 96-6p, 1996 WL 374180. Findings of fact made by a
consultative examiner “must be treated as expert
opinion evidence of nonexamining sources.” Id.
ALJs and the Appeals Council may not ignore these opinions
and must explain the weight given to these opinions.
Id. The Ruling explains that because opinions of
consultative examiners are weighed by stricter standards than
those who are treating sources,
the opinions of State agency medical and psychological
consultants and other program physicians and psychologists
can be given weight only insofar as they are supported by
evidence in the case record, considering such factors as the
supportability of the opinion in the evidence including any
evidence received at the administrative law judge and Appeals
Council levels that was not before the State agency, the
consistency of the opinion with the record as a whole,
including other medical opinions, and any explanation for the
opinion provided by the State agency medical or psychological
consultant or other program physician or psychologist.
Court finds that the ALJ did not err in her treatment of Dr.
Cummings's opinion. SSR 96-6p makes clear that an ALJ
must explain the weight given to a consultative
examiner's opinions. In this case, the ALJ did exactly
that; she assigned little weight to Dr. Cummings's
opinion and proceeded to articulate her reasons for doing so.
the Court would have evaluated Dr. Cummings's opinion
differently if it were reviewing the evidence de
novo is not the question. The Court is constrained to
reviewing whether the ALJ erred as a matter of law in its
treatment of Dr. Cummings's opinion. It is not the proper
role of this Court to substitute its judgment for that of the
ALJ. “In reviewing the ALJ's decision, ‘we
neither reweigh the evidence nor substitute our judgment for
that of the agency.'” See Bowman, 511 F.3d
at 1272 (quoting Casias, 933 F.2d at 800). It is the
Court's role, however, only to determine if the ALJ
properly explained her reasoning for assigning little weight
to Dr. Cummings, a consultative examining psychologist. The
Court finds that the ALJ properly considered Dr.
Cummings's opinion, assigned it the weight she felt it
warranted, discounted it due to other evidence in the record,
and satisfactorily explained her reasoning.
Tracey Garcia, LISW
records reflect that Tracey Garcia served as Plaintiff's
counselor beginning in January 2014. Between January 20,
2014, and April 20, 2015, Plaintiff was treated by Ms. Garcia
a total of five times. See AR 397-99, 400-01,
434-36. On August 3, 2015, Ms. Garcia completed a
“Treating Source Opinion Re: Ability to do Mental
Work-Related Activity.” AR 411-12. Ms. Garcia assessed
Plaintiff in 25 categories related to workplace skills and
abilities. Ms. Garcia assessed Plaintiff was “very
good” in one category, “limited but
satisfactory” in 17 categories, “seriously
limited” in five categories, and “unable to meet
competitive standards” in two categories. Ms. Garcia did
not assess Plaintiff as having “no useful ability to
function, ” the most extreme assessment, in any
category. In support of her assessment, Ms. Garcia wrote,
“[c]urrent emotional stressors could negatively effect
[sic] work performance & attendance. Depressed mood
negatively effects [sic] daily functioning.” Ms. Garcia
opined that Plaintiff would miss about three days per month
because of her condition. AR 411-12.
reviewed Ms. Garcia's counseling notes dated January 20,
2014, thru April 20, 2015. She noted that counseling was
working well for Plaintiff and that Plaintiff was responsive
to the therapy. On multiple occasions, Plaintiff appeared
highly motivated for positive change and was without suicidal
ideations. AR 21. Relying on Ms. Garcia's notes and other
medical evidence in the record, as well as Plaintiff's
testimony, the ALJ assigned “very little weight”
to Ms. Garcia's opinions. AR 22.
argues that the ALJ committed error in evaluating Ms.
Garcia's opinions. She maintains that “although
[Plaintiff] was working hard in therapy, she continued to
experience tearfulness, significant anxiety, depressed mood,
and mood-related withdrawal from people and
activities.” Pl.'s Br. 24-25. Defendant argues that
the ALJ reasonably assigned very little weight to Ms.
Garcia's opinions. Furthermore, Defendant points out that
the ALJ relied on Ms. Garcia's own counseling notes,
which reveal improvement in Plaintiff's symptoms.
Def.'s Resp. 11.
Security Ruling (“Ruling”) 06-03P was promulgated
to clarify how the Social Security Administration would
consider opinions from sources that are not “acceptable
medical sources.” The Ruling clarifies that the
distinction between “acceptable medical sources”
and other health care providers is important for three
reasons: first, evidence from “acceptable medical
sources” is needed to establish the existence of a
medically determinable impairment; second, only
“acceptable medical sources” can provide medical
opinions; and third, only “acceptable medical
sources” can be considered treating sources whose
medical opinions may be entitled to controlling weight. SSR
06-03P, 2006 WL 2329939 (August 9, 2006). The Ruling
identifies therapists as “other sources” whose
evidence may be used “to show the severity of the
individual's impairment(s) and how it affects the
individual's ability to function.” Id.
Information from “other sources, ” however,
cannot establish the existence of an impairment. Id.
Ruling explains that the factors set forth in 20 C.F.R.
§ 404.1527(d) and § 416.927(d) can be applied to
opinion evidence from “other sources.”
Id. These factors include:
how long the source has known and how frequently the source
has seen the individual; how consistent the opinion is with
other evidence; the degree to which the source presents
relevant evidence to support an opinion; how well the source
explains the opinion; whether the source has a specialty or
area of expertise related to the individual's
impairment(s); and any other factors that tend to support or
refute the opinion.
Id. An adjudicator “generally should explain
the weight given to opinions from these ‘other
sources'” or should otherwise discuss the evidence
in a manner that permits a claimant or subsequent reviewer
“to follow the adjudicator's reasoning.”
Court concludes that the ALJ did not err in her treatment of
Ms. Garcia's opinions. The Tenth Circuit has held that
all that is required from an ALJ are “good
reasons” when discussing the weight afforded to an
opinion from an “other source, ” including a
therapist. See Nichols v. Astrue, 341 F.
App'x 450, 454 (citing Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007)); see also Endriss v.
Astrue, 506 F. App'x 772, 778 (10th Cir. 2012)
(finding the ALJ did not err in evaluating an opinion from a
physical therapist because there was sufficient information
for a subsequent reviewer to follow the ALJ's reasoning).
An ALJ can apply the factors from § 404.1527(d) and
§ 416.927(d) to a therapist's opinions. “It is
not necessary, however, for the ALJ to address each factor
expressly or at length.” Nichols, 341 F.
App'x. at 453 (quoting SSR 06-03P).
regards to the Watkins factors, the law does not
require that a counselor's opinions be weighed against
each factor. Though the ALJ did not explicitly mention which
factors she weighed Ms. Garcia's opinions against, her
written decision reflected that she did consider the first
four of those factors, namely: (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. AR 19-22. The ALJ described in great detail the
counseling notes from Ms. Garcia that she reviewed, including
Plaintiff's positive response to treatment and therapy.
AR 21. The ALJ further described Plaintiff's own
testimony of her self-reported activities, which created a
factual conflict with Ms. Garcia's opinions. For example,
in October 2014, Plaintiff reported to Dr. Cummings that she
experienced debilitating symptoms related to panic and
anxiety. AR 19. However, Ms. Garcia's notes reflect that,
with therapy, Plaintiff was experiencing positive change. AR
21. Plaintiff argues that, despite her positive response to
therapy, she was still exhibiting negative symptoms and,
therefore, the ALJ erred in highlighting this fact purely
because it supported a finding that Plaintiff was not
disabled. Pl.'s Br. 24-25. To the contrary, the ALJ did
not highlight this fact to illustrate that Plaintiff was
entirely cured of her symptoms - instead, this fact was
merely illustrative of Plaintiff's improvement.
it is solely the province of the ALJ to resolve conflicting
evidence. Upon subsequent review, this Court must only
determine whether the ALJ provided sufficiently clear reasons
for the weight she assigned to Ms. Garcia's opinions. The
Court holds that the ALJ's explanation in regards to Ms.
Garcia's opinions was sufficient to allow meaningful
review of her findings. The Court further concludes that the
explanation was supported by substantial evidence and not
otherwise legally erroneous.
Vocational Expert Testimony
Plaintiff challenges the ALJ's treatment of the
Vocational Expert's testimony, arguing that the ALJ
ignored the VE's testimony about Plaintiff's
limitations and how those affected her ability to maintain
employment. Pl.'s Br. 25. Specifically, Plaintiff points
out that the VE testified that a hypothetical person who
would be late to work two times per month would not be able
to maintain gainful employment. Id.; see
also AR 61. Furthermore, Plaintiff points to the
VE's testimony that a person who experiences breaking
down into uncontrollable crying one time per week for
approximately ten to fifteen minutes would be unable to
maintain employment because that amount of time is too
excessive to be away from one's tasks. Id. In
support of this contention, Plaintiff cites Campbell v.
Bowen, 822 F.2d 1518, 1523 n.6 (10th Cir. 1987), for the
proposition that an ALJ may not ignore an unfavorable answer
by a VE that is supported by substantial evidence.
part, Defendant contends that the “ALJ permissibly
denied benefits at step five because Plaintiff could perform
other work existing in significant numbers in the national
economy.” Def.'s Resp. 14. Additionally, Defendant
argues that if there was any error concerning the ALJ's
treatment of the VE's testimony, it was harmless.
evidence that her mental condition would require her to miss
too much work altogether and/or to fail to attend to her
duties while actually at work, Plaintiff points to the
opinions of Dr. Hayes, Ms. Garcia, and Dr. Cummings.
Pl.'s Br. 25. Therein lies the problem for, as previously
discussed at length, the ALJ permissibly assigned the
opinions of Dr. Hayes and Ms. Garcia very little weight, and
the opinions of Dr. Cummings little weight, respectively.
Therefore, substantial evidence does not support the two
specific portions of the VE's testimony that Plaintiff
argues were impermissibly ignored.
to hypothetical questions (posed to a VE or any other
witness) are only as reliable as the assumptions embedded in
the hypotheses themselves. Here, it is clear to this Court
that the ALJ was not persuaded by the opinions of Drs. Hayes
and Cummings and Ms. Garcia concerning Plaintiffs predicted
absenteeism or on-the-job inattentiveness. The ALJ's
decision to accord these opinions little weight was justified
for the same reasons set forth earlier in this decision.
See supra Section VA at 8-20. Consequently, the
VE's answers to questions that assumed facts about
absenteeism and inattentiveness the ALJ had implicitly
rejected were immaterial because they were not supported by
these reasons, the Court holds that the ALJ's decision
was supported by substantial evidence and the correct legal
standards were applied.
THEREFORE ORDERED that Plaintiff's Motion is DENIED, the
Commissioner's final decision is AFFIRMED, and this
action is DISMISSED.
 Plaintiff's surname on her
application was Roybal, but she has since been married.
Administrative R. (“AR”) 208-09.
 At step two, the Administrative Law
Judge (“ALJ”) also identified Plaintiff's
history with obesity, but found it to be a non-severe
impairment. Plaintiff's body mass index was slightly
above 30, indicating she met the medical standard of obesity.
 The specific sections of the Code of
Federal Regulations the ALJ referenced include: 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, and 416.926 (2016). AR 17.
 Paragraph B in Listings 12.04, 12.06,
and 12.08 describes impairment-related functional limitations
that are incompatible with the ability to do any gainful
activity. The functional limitations described below must be
the result of the mental disorder described in the diagnostic
description. Paragraph B states:
Resulting in at least two of the following:
1. Marked restriction of activities of daily living;
2. Marked difficulties in maintaining social
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Pt. A2
 Paragraph C in Listing 12.04 describes
impairment-related functional limitations that are
incompatible with the ability to do any gainful activity. The
functional limitations described below must be the result of
the mental disorder described in the diagnostic description.
Paragraph C states:
Medically documented history of a chronic affective
disorder of at least 2 years' duration that has caused
more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the
1. Repeated episodes of decompensation, each of
extended duration; or
2. A residual disease process that has resulted in
such marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability
to function outside a highly supportive living arrangement,
with an indication of continued need for such an
Paragraph C in Listing 12.06 describes
impairment-related functional limitations that are
incompatible with the ability to do any gainful activity. The
functional limitations described below must be the result of
the mental disorder described in the diagnostic description.
Paragraph C states:
Resulting in complete inability to function
independently outside the area of one's home. 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1, Pt. A2.
 DOT stands for “Dictionary of
 Per the form, “seriously
limited” means the patient has noticeable difficulty
from 11 to 20 percent of the workday or work week. Dr. Hayes
assessed Plaintiff was “seriously limited” in the
following categories: (i) maintain regular attendance and be
punctual within customary, usually strict tolerances, (ii)
sustain an ordinary routine without special supervision,
(iii) work in coordination with or proximity to others
without being unduly distracted, (iv) complete a normal
workday and workweek without interruptions from
psychologically based symptoms, (v) accept instructions and
respond appropriately to criticism from supervisors, (vi)
respond appropriately to changes in a routine work setting,
(vii) deal with normal work stress, (viii) deal with stress
of semiskilled and skilled work, (ix) interact appropriately
with the general public, and (x) use public transportation.
 Per the form, “seriously
limited” means the patient has noticeable difficulty
from 11 to 20 percent of the workday or work week. Ms. Garcia
assessed Plaintiff was “seriously limited” in her
ability to: (i) sustain an ordinary routine without special
supervision, (ii) accept instructions and respond
appropriately to criticism from supervisors, (iii) respond
appropriately to changes in a routine work setting, (iv) deal
with normal work stress, and (v) deal with stress of
semiskilled and skilled work.
“Unable to meet competitive standards”
means the patient has noticeable difficulty from 21 to 40
percent of the workday or work week. Ms. Garcia assessed
Plaintiff was “unable to meet competitive
standards” in the following categories: (i) maintain
regular attendance and be punctual within customary, usually
strict tolerances, and (ii) complete a normal workday and
workweek without interruptions from psychologically based
symptoms. AR 411-12.
 Under Social Security Administration
regulations, “acceptable medical sources” are
limited to licensed physicians (medical or osteopathic
doctors), licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified
speech-language pathologists. See SSR 06-03P, 2006
WL 2329939 (August 9, 2006).