Nixon v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01839-STV
L.N.,1
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff L.N.’s Complaint seeking review of the
Commissioner of Social Security’s decision denying Plaintiff’s application for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and
XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 1381-83c,
respectively. 	[#1] 	The parties have both consented to proceed before this Court for all
proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and
D.C.COLO.LCivR 72.2. 	[#7] 	The Court has jurisdiction to review the Commissioner’s
final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 	This Court has carefully
considered the Complaint [#1], the Social Security Administrative Record [#10], the
parties’ briefing [## 11, 12, 18], and the applicable case law, and has determined that oral
1 Pursuant to D.C.COLO.LAPR 5.2(b), “[a]n order resolving a social security appeal on
the merits shall identify the plaintiff by initials only.”
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argument would not materially assist in the disposition of this appeal. 	For the following
reasons, the Court REVERSES the Commissioner’s decision and REMANDS this matter
for further proceedings consistent with this Order.
I. 	LEGAL STANDARD
A. 	Five-Step Process for Determining Disability
The Social Security Act defines disability as the 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.”2 	42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
“This twelve-month duration requirement applies to the claimant’s inability to engage in
any substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at
1084. 	“In 	determining 	whether 	an 	individual’s 	physical 	or 	mental 	impairment 	or
impairments are of a sufficient medical severity that such impairment or impairments
could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined
effect of all of the individual’s impairments without regard to whether any such impairment,
if considered separately, would be of such severity.” 	42 U.S.C. §§ 423(d)(2)(B),
1382c(a)(3)(G).
“The Commissioner is required to follow a five-step sequential evaluation process
to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171
(10th Cir. 2005). The five-step inquiry is as follows:
2 “Substantial gainful activity” is defined in the regulations as “work that (a) [i]nvolves doing
significant and productive physical or mental duties; and (b) [i]s done (or intended) for pay
or profit.” 20 C.F.R. §§ 404.1510, 416.910; see also 20 C.F.R. §§ 404.1572, 416.972.
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1. 	The Commissioner first determines whether the claimant’s work activity, if any,
constitutes substantial gainful activity;
2. 	If not, the Commissioner then considers the medical severity of the claimant’s
mental and physical impairments to determine whether any impairment or
combination of impairments is “severe;”3
3. 	If so, the Commissioner then must consider whether any of the severe
impairment(s) meet or exceed a listed impairment in the appendix of the
regulations;
4. 	If not, the Commissioner next must determine whether the claimant’s residual
functional capacity (“RFC”)—i.e., the functional capacity the claimant retains
despite his impairments—is sufficient to allow the claimant to perform his past
relevant work, if any;
5. 	If not, the Commissioner finally must determine whether the claimant’s RFC,
age, education and work experience are sufficient to permit the claimant to
perform other work in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F. Supp. 3d 782, 784 (D. Colo. 2017). “The
claimant bears the burden of establishing a prima facie case of disability at steps one
through four,” after which the burden shifts to the Commissioner at step five to show that
the claimant retains the ability to perform work in the national economy. Wells v. Colvin,
727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. 	“A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive and
terminates the analysis.” 	Ryan v. Colvin, 214 F. Supp. 3d 1015, 1018 (D. Colo. 2016)
(citing Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).
3 The regulations define severe impairment as “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
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B. 	Standard of Review
In reviewing the Commissioner’s decision, the Court’s review is limited to a
determination of “whether the Commissioner applied the correct legal standards and
whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill,
849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th
Cir. 	1994)). 	“With 	regard 	to 	the 	law, 	reversal 	may 	be 	appropriate 	when 	[the
Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance
on the correct legal standards.” Bailey, 250 F. Supp. 3d at 785 (citing Winfrey v. Chater,
92 F.3d 1017, 1019 (10th Cir. 1996)).
“Under 	the 	substantial-evidence 	standard, 	a 	court 	looks 	to 	an 	existing
administrative record and asks whether it contains sufficien[t] evidence to support the
agency’s factual determinations.” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (quotation
omitted). “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such
evidentiary sufficiency is not high.” Id. at 103. Substantial evidence “means—and means
only—such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” 	Id. (quotation omitted). 	“It requires more than a scintilla, but less than a
preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Lax, 489
F.3d at 1084). “Evidence is not substantial if it is overwhelmed by other evidence in the
record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62 (quoting Musgrave
v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must “meticulously examine
the record as a whole, including anything that may undercut or detract from the
[Commissioner’s] findings in order to determine if the substantiality test has been met.’”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). The Court,
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however, 	“will 	not 	reweigh 	the 	evidence 	or 	substitute 	[its] 	judgment 	for 	the
Commissioner’s.” Hackett, 395 F.3d at 1172.
II. 	BACKGROUND
Plaintiff was born in 1971. 	[AR 234]4 	Plaintiff speaks and understands English.
[AR 258] 	She dropped out of high school in the tenth grade but obtained a GED. 	[AR
260, 592] 	On August 26, 2021, Plaintiff submitted a claim for DIB [AR 234-38] and on
December 27, 2021, she applied for SSI [AR 239-45]. 	In each filing she claimed a
disability onset date of January 1, 2018 [AR 234, 239], and thus Plaintiff was 46 years old
at the time of the alleged onset. 	Plaintiff claims disability based upon back pain,
rheumatoid arthritis, a back injury, a neck injury, migraines, depression, and anxiety. [AR
259] Plaintiff has worked as a cook, caregiver, and cashier. [AR 260, 269-74, 322]
A. 	Medical Background
Plaintiff suffers from a variety of physical conditions including morbid obesity;
migraines; hypothyroidism; GERD; shortness of breath; chronic pain including neck, back
and knee pain; bilateral neuropathy; and spinal stenosis. 	[AR 343, 390, 401] 	Plaintiff
also suffers from anxiety and depression. [AR 390]
In 2017, Plaintiff was in a rollover accident and injured her spine.5 [AR 592, 684]
Two years later, on March 6, 2019, Plaintiff was a restrained backseat passenger in a
vehicle that T-boned another car while travelling approximately twenty miles per hour.
[AR 373, 376] 	Plaintiff thought that she may have hit her head but she did not lose
4 All references to “AR” refer to the sequentially numbered Social Security Administrative
Record filed in this case. [#10]
5 The administrative record does not contain any medical reports from this accident
though Plaintiff described it on at least two occasions. [AR 592, 684] Plaintiff described
it as a rollover accident which appears distinct from the subsequent T-bone accident
described herein.
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consciousness and denied having headaches, vomiting or neck pains. [AR 373] Plaintiff
did complain that the accident had aggravated her preexisting lower back pain. 	[Id.]
Plaintiff described the pain as a tightening across her lower lumbar spine. [Id.] A physical
examination noted mild tenderness of the lumbar spine at L1 and L5-S1. [AR 375, 377]
An x-ray of the lumbar spine revealed an age-indeterminate L1 compression fracture not
suspected of being attributable to the accident. [AR 377, 380] Plaintiff also complained
about right knee pain, worse on extension, and thought that she may have hit her knee
on the seat in front of her. [AR 373] The right knee was tender upon examination. [AR
375] An x-ray of the knee was negative. [AR 377, 379]
On September 5, 2019, Plaintiff attended a preoperative evaluation for a C5-C6
anterior cervical discectomy and fusion (“ACDF”). [AR 354] Medical notes indicate that
Plaintiff had been experiencing continued pain and decreased range of motion from C-
spine stenosis and that conservative treatment had not worked. [AR 343, 354] 	Plaintiff
indicated that her pain was eight out of ten when it was at its worst. 	[AR 354] 	Plaintiff
further indicated that the pain would radiate down both legs and arms with some loss of
control in her fingers. [Id.]
On September 9, 2019, Plaintiff underwent the ACDF. [AR 343] 	Plaintiff tolerated
the procedure well and there were no complications. 	[AR 348-49] 	Following the
operation, Plaintiff described her pain as constant, rating seven of ten, and worse with
movement. [AR 343]
A November 27, 2019 CT scan of the cervical spine indicated that the C5-C6 ACDF
hardware remained intact and well seated. 	[AR 371] 	It further revealed mild cervical
spondylotic changes but no acute fracture or listhesis of the cervical spine. [Id.] Finally,
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it showed posterior disc osteophyte complex at C5-C6 resulting in mild spinal and mild
foraminal narrowing. [Id.] 	A March 2, 2020 x-ray of the thoracic and lumbar spine
revealed chronic mild superior endplate compression deformity of L1, mild thoracolumbar
spondylosis, and minor S-shaped scoliosis. [AR 363] The thoracic and lumbar vertebra
were otherwise preserved in height and alignment without acute fracture or listhesis
identified. [Id.]
During a May 21, 2020 medical visit Plaintiff described her neck pain as 6 out of
ten. 	[AR 396] 	Records from a June 18, 2020 medical visit reflect continued neck and
back pain, especially severe in the low-mid back area. [AR 400] A physical examination
of the back and spine did not reveal any tenderness. [AR 402] Plaintiff was seeking pain
management but that was on hold due to the COVID-19 pandemic. [AR 400]
Records from August 6, 2020 indicate that Plaintiff was still having back pain
though the back pain was doing better with exercise. 	[AR 413, 416, 418] 	Plaintiff was
also having neck pain which she rated at one visit as a six out of ten. [Id.] She similarly
reported her neck pain as six out of ten at subsequent visits in 2020. [AR 421, 426, 431]
And records from November 2020 reflect Plaintiff continuing to have back pain but again
indicate that it was improved with exercise. [AR 434]
On December 17, 2020, Plaintiff reported to her medical provider that her back
pain was interfering with her sleep and cortisone shots were discussed. 	[AR 435]
Records throughout 2021 and 2022 reflect continued back and neck pain. [See, e.g., AR
481, 486, 493, 511, 519, 620] 	On August 2, 2022, Plaintiff described her back pain as
typically a five out of ten. 	[AR 592] During an August 6, 2022 consultative examination
Plaintiff described her back pain as seven or eight out of ten. 	[AR 602] 	An x-ray from
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that date revealed chronic L1 endplate deformity and mild thoracolumbar spondylosis and
S shaped scoliosis. [AR 600, 602]
Plaintiff’s back pain caused her to visit the emergency room on January 4, 2023.
[AR 698] 	And during a February 18, 2023 consultative examination Plaintiff described
her neck pain as dull, aching and throbbing, with a pain scale of five out of ten. [AR 686]
During that same examination she described her lower back pain as intermittent,
throbbing and sharp with a pain scale of six out of ten that can rise to a seven or eight out
of ten. [Id.]
On May 15, 2023, Plaintiff had an MRI of the lumbar spine. 	[AR 724] 	The MRI
revealed degenerative disc disease and chronic compression fracture of the L1 vertebral
body as well as a slight grade 1 anterolisthesis at the T12 and L1. 	[Id.] 	There was no
evidence of cord or nerve root compression. [Id.]
In addition to neck and back pain, Plaintiff also suffers from knee pain. 	Plaintiff
suffered a right meniscus tear in 2010. 	[AR 394] 	As indicated above, Plaintiff believed
she may have hit her right knee on the seat in front of her during her March 6, 2019
automobile accident. 	[AR 373] 	She complained about right knee pain, worse on
extension, and the right knee was tender upon examination. [AR 373, 375] An x-ray of
the knee was negative. [AR 377, 379] Records from June 2020 reflect continued knee
pain that was aggravated by colder weather. 	[AR 400-01] 	Records from August and
October 2020 likewise reflect continued knee pain. [AR 410, 415, 425]
A February 4, 2022 medical record indicates that Plaintiff’s knee pain had
worsened. 	[AR 505] 	During an April 12, 2022 medical visit Plaintiff indicated that her
knee was “more painful today.” 	[AR 527] 	The provider planned to increase Plaintiff’s
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gabapentin dosage. [Id.] Notes from a May 9, 2022 medical visit indicate that Plaintiff’s
right knee pain was persistent and that the provider intended to order a knee brace for
Plaintiff to use while walking. 	[AR 529, 535] 	Knee pain was also reflected in a June 7,
2022 medical record. [AR 616] And as of August 2, 2022, Plaintiff was still experiencing
knee pain which she described as typically a five out of ten. [AR 592] During an August
6, 2022 consultative examination Plaintiff described her knee pain as ranking seven or
eight out of ten. [AR 602-03] An x-ray of the right knee from that day was unremarkable.
[AR 600] 	During a February 18, 2023 consultative examination Plaintiff rated her knee
pain as seven out ten and described it as mostly throbbing but stabbing on occasion. [AR
686]
Plaintiff also suffers from headaches. 	A September 9, 2019 medical record
described Plaintiff’s headaches as well-controlled with medication. 	[AR 343] 	On
December 17, 2020, however, Plaintiff reported having migraines on a daily basis. [AR
435] 	During a January 15, 2021 visit Plaintiff indicated that Aimovig had “drastically
improved” her migraines [AR 440], but one month later Plaintiff again described having
bad migraines for the past two weeks [AR 446].
In May 2021 Plaintiff reported that her migraines “come and go” and were worse
with the cold. 	[AR 464] 	She reported still having migraines during an August 12, 2021
appointment. 	[AR 476] 	According to Plaintiff, she was having several migraines per
month. [AR 481] Plaintiff indicated that the medications were no longer working. [Id.]
Notes 	from 	a 	May 2022 medical 	appointment 	reflect 	Plaintiff continuing to
experience migraines [AR 535] though records from June 7, 2022 describe the migraines
as “gone with topiramate” [AR 616]. An August 1, 2022 brain MRI revealed normal signal
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intensity and no evidence of acute ischemia or acute infarction. [AR 673] There was a
high 	T2 	signal 	in 	the 	right 	greater 	than 	left 	mastoid 	air 	cells 	reflecting 	mastoid
inflammatory change. [Id.]
During 	an 	August 	6, 	2022 	consultative 	examination 	Plaintiff 	described 	the
migraines as radiating from the base of the occiput to the eyebrows. 	[AR 603] 	Plaintiff
also expressed some sensitivity to light. 	[Id.] 	Plaintiff was again taking Aimovig which
she said helped decrease the intensity of the headaches but not the frequency. 	[Id.]
During a November 7, 2022 medical appointment Plaintiff described the migraines as
“constant” and making her sick. [AR 651, 658] She expressed sensitivity to light and said
she was sleeping in a dark room. 	[AR 651] 	Medical records from February and April
2023 continue to reflect migraines which Plaintiff described as “terrible.” [AR 708, 714]
In addition to the specific physical problems described above, there is some
indication in the administrative record that Plaintiff may suffer from an overall chronic pain.
For example, on September 9, 2019, Plaintiff’s chronic pain was described as well-
controlled with medication. 	[AR 343] 	Similarly, records from November 2020 indicate
that Plaintiff’s “bones ache with cold.” [AR 430] During a January 17, 2023 examination
Plaintiff reported her chronic pain as a seven or eight out of ten. [AR 677]
In addition to these physical impairments, Plaintiff also suffers from some mental
health issues. Records from February 25, 2020 reflect Plaintiff suffering from anxiety and
depression. [AR 390] At the time, Plaintiff refused therapy or medication. [Id.] Plaintiff
reported worsening anxiety and depression on March 20, 2020 but again refused therapy
or treatment. [AR 392] Records from a February 2021 appointment note elevated anxiety
though Plaintiff again refused medication or therapy. [AR 446, 448] Records from August
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2021 indicate that Plaintiff’s depression was increased and that Plaintiff was teary during
the appointment. 	[AR 481] 	During a January 17, 2023 examination Plaintiff described
ongoing depression and isolation with some crying spells. [AR 677] And during a June
29, 2023 medical appointment Plaintiff said that she was struggling with anxiety which
was impacting her ability to sleep. [AR 720]
On August 11, 2023, Plaintiff had an initial treatment assessment for some of the
mental health issues with which she had been struggling. 	[AR 738, 747] 	She self-
reported anxiety, depression, and PTSD. [AR 738-40] Her affect was sad and her mood
was depressed and anxious. [AR 746] The plan was for Plaintiff to attend weekly therapy
for the next six months. [AR 749] Continued assessment sessions occurred on August
22, September 5, and September 12. 	[AR 751-60] 	The administrative record does not
contain additional therapy notes beyond these initial consultation sessions.
B. 	Opinion Evidence
On August 2, 2022, Plaintiff underwent a mental status examination with David
Benson, Ph.D. [AR 591-96] Plaintiff reported that her psychological problems began in
2013 “when she had a major medical crisis, the nature of which is unclear.” 	[AR 591]
Plaintiff reported a childhood history of physical and sexual abuse. 	[AR 592] 	Plaintiff’s
thought process was organized and coherent. 	[AR 594] 	Her long-term memory was
intact though she had trouble with attention and concentration. 	[Id.] 	She had delayed
memory recall and appeared to struggle with basic math. [Id.] Dr. Benson diagnosed her
with post-traumatic stress disorder (“PTSD”), unspecified anxiety disorder, and rule-out
unspecified depressive disorder. 	[AR 595] 	He concluded that Plaintiff had mild
impairment in her ability to interact appropriately with supervisors and peers. 	[Id.] 	He
opined that Plaintiff had mild to moderate impairment in her ability to interact appropriately
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with the public and to respond appropriately to usual work situations and to changes in
routine work settings. 	[Id.] 	He concluded that Plaintiff was moderately impaired in her
ability to: (1) understand and remember simple instructions, (2) carry out simple
instructions, and (3) make judgments on simple work-related decisions. [Id.] 	Finally, he
opined that Plaintiff had moderate to marked impairment in her ability to: (1) understand
and remember complex instructions, (2) carry out complex instructions, and (3) make
judgments on complex work-related decisions. [Id.]
On August 11, 2022, state consultative examiner Cathy A. Word-Allen, Ph.D.
issued a mental RFC opinion. [AR 75, 79-80] Dr. Word-Allen found that Plaintiff had mild
limitations in her ability to interact with others and to adapt or manage herself. 	[AR 75]
She concluded that Plaintiff had moderate limitations in her ability to: (1) understand,
remember, or apply information; (2) concentrate, persist, or maintain pace; (3) carry out
detailed instructions; (4) maintain attention and concentration for extended periods; 	(5)
work in coordination or in proximity to others without distraction; and (6) complete a
normal 	workday 	and 	workweek 	without 	interruptions 	from 	psychologically 	based
symptoms and to perform at a consistent pace without an unreasonable number of rest
periods. 	[AR 75, 79] 	Dr. Word-Allen concluded that Plaintiff could follow simple
instructions; sustain ordinary routines and make simple work-related decisions; respond
appropriately to supervision, co-workers and work situations; and deal with changes in a
routine work setting. [AR 80]
On August 6, 2022, Plaintiff underwent an Independent Medical Examination with
Kristina Barber, M.D. [AR 602-08] On examination Plaintiff’s gait was slow but normal.
[AR 605] 	Plaintiff experienced dorsolumbar pain with flexion to the right and right knee
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pain. [AR 605-06] Dr. Barber diagnosed Plaintiff with: (1) chronic right knee pain status
post-meniscal repair with MCL laxity on exam reflecting medial compartment OA and
MCL tear; (2) chronic axial low back pain secondary to mild thoracolumbar spondylosis
and radiographic scoliosis; (3) intermittent, mild neck pain secondary to mild at level
spondylosis with history of C5-6 ACDF; (4) chronic migraine-type headaches; (5)
depression – deferred; and (6) anxiety – deferred. 	[AR 607] 	Dr. Benson opined that
Plaintiff could: (1) sit and stand for 4-6 hours during a normal workday; (2) walk for about
6-8 hours during a normal workday; (3) lift and carry 0-20 pounds frequently and 20-50
pounds occasionally; and (4) frequently bend, stoop, squat, crouch, and/or crawl. 	[Id.]
Dr. Benson did not recommend any other restrictions. [Id.]
On August 17, 2022, state consultative examiner Erin Madden, M.D. issued a
physical RFC opinion. [AR 77-79] Dr. Madden opined that Plaintiff could occasionally lift
and/or carry twenty pounds and frequently lift and/or carry ten pounds. 	[AR 77] 	Dr.
Madden concluded that Plaintiff could stand, walk and sit about six hours in an eight hour
workday. [Id.] Dr. Madden opined that Plaintiff could frequently climb ramps and stairs,
balance, and stoop, and occasionally kneel, crouch, and crawl. 	[AR 78] 	Dr. Madden
further 	opined 	that 	Plaintiff 	needed 	to 	avoid 	concentrated 	exposure 	to 	extreme
temperatures and needed to avoid even moderate exposure to hazards such as
machinery and heights. 	[Id.] 	On March 2, 2023, state consultative examiner Aaron
Snyder, M.D., issued an identical physical RFC opinion. [AR 100-02]
On January 17, 2023, Plaintiff underwent a psychiatric consultation examination
with Dr. Madsen. [AR 677-80] Plaintiff was oriented to person, place and time. [AR 678]
Her affect was consistent with an anxious and depressed mood. 	[Id.] 	Her thought
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processes and content were logical and relevant. 	[Id.] 	Testing indicated that Plaintiff’s
short-term auditory memory was slightly impaired and her ability to do arithmetic functions
was impaired. [Id.] 	Dr. Madsen diagnosed Plaintiff with persistent depressive disorder,
PTSD or generalized anxiety panic and agoraphobia, and cognitive disorder not otherwise
specified. [AR 679] Dr. Madsen concluded that Plaintiff would be mildly impaired in her
ability to: (1) perform simple repetitive tasks; (2) accept instructions from supervisors; and
(3) interact with coworkers and with the public. 	[AR 679-80] 	Dr. Madsen opined that
Plaintiff would be moderately impaired in her ability to: (1) perform detailed and complex
tasks on a consistent basis over an extended period; (2) maintain acceptable attendance
in the workplace; (3) perform work activities on a consistent basis; (4) complete a normal
workday or workweek without interruptions resulting from her psychiatric conditions; and
(5) deal with the usual stress encountered in a competitive work environment. 	[Id.] 	Dr.
Madsen also opined that Plaintiff would require specialized supervision from individuals
trained to supervise those who have chronic mental health issues related to chronic pain.
[AR 679]
On 	January 	31, 	2023, 	state 	consultative 	examiner 	Mark 	Suyeishi, 	Psy.D.
conducted a consultative examination. 	[AR 97-98] 	Plaintiff reported that she was not
depressed though she appeared anxious, distracted and preoccupied. 	[AR 97] 	Dr.
Suyeishi estimated Plaintiff’s intelligence to be in the average to low-average range. [Id.]
He concluded that Plaintiff did not have any medically determinable mental impairments.
[Id.]
On February 8, 2023, Plaintiff underwent an evaluation by A. Severance, D.O. [AR
684-89] At the time of the evaluation, Plaintiff was homeless. [AR 685] Dr. Severance
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did a physical examination and diagnosed Plaintiff with morbid obesity, untreated
rheumatoid arthritis, chronic migraines/headaches, hypothyroidism, history of substance
use, lumbago, dorsalgia, cervicalgia, arthralgia of the right knee, bilateral tinnitus, and
homelessness. [686-88] Dr. Severance opined that Plaintiff could stand and walk for four
hours in an eight-hour workday, with no restrictions on sitting. [AR 688] Dr. Severance
further opined that Plaintiff could lift, carry, push and pull 25 pounds occasionally and 10
pounds frequently. 	[Id.] 	Dr. Severance concluded that Plaintiff could climb steps and
stairs occasionally, but never climb ladders, scaffolds, or ropes. 	[Id.] 	Finally, Dr.
Severance opined that Plaintiff could balance frequently and stoop occasionally, but
never crouch, crawl, or kneel. [Id.]
C. 	Procedural History
Plaintiff’s applications for DIB and SSI were initially denied on August 18, 2022.
[AR 71, 82] 	Plaintiff requested reconsideration and on March 2, 2023, Plaintiff’s
applications were again denied. [AR 93, 105] On March 21, 2023, Plaintiff completed a
request for a hearing before an Administrative Law Judge (“ALJ”). [AR 160-61] A hearing
was conducted before ALJ Kathryn D. Burgchardt on September 26, 2023. 	[AR 42-70]
Plaintiff was represented at the hearing by attorney Cord Harris. 	[AR 42] 	Plaintiff and
Vocational Expert (“VE”) Ashley Bryars both testified at the hearing. [AR 43-70]
On November 17, 2023, the ALJ issued a decision that Plaintiff had not been under
a disability from the alleged onset date through the date of the ALJ’s opinion. [AR 17-35]
Plaintiff requested a review of that decision by the Appeals Council and, on April 30, 2024,
the Appeals Council denied Plaintiff’s request for review. 	[AR 1-6] 	On July 1, 2024,
Plaintiff timely filed her appeal with this Court. [#1]
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D. 	The ALJ’s Decision
After evaluating the evidence pursuant to the five-step sequential evaluation
process, the ALJ denied Plaintiff’s applications for DIB and SSI. [AR 17-35] At step one,
the ALJ determined that Plaintiff had engaged in substantial gainful activity from April
through August 2018 but that there had been a continuous twelve-month period during
which she did not engage in substantial gainful activity. 	[AR 20] 	At step two, the ALJ
found the following medically determinable severe impairments: degenerative disc
disease of the cervical and lumbar spine and scoliosis; right knee pain status post-
meniscectomy; obesity; migraines; depression; anxiety; and PTSD. [AR 20-21] At step
three, the ALJ concluded that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in the appendix of the regulations. [AR 21-25]
Following step three, the ALJ determined that Plaintiff retained the RFC to perform
light work6 but with the following limitations:
[Plaintiff] can sustain ordinary routines and make simple work-related
decisions. 	[Plaintiff] can respond appropriately to supervision, coworkers,
and work situations, and can deal with changes in a routine work setting.
[Plaintiff] could only lift or carry up to 10 pounds frequently and 20 pounds
occasionally. [Plaintiff] could stand or walk with normal breaks for a total of
6 hours in an 8-hour workday and could sit with normal breaks for a total of
6 hours in an 8-hour workday. [Plaintiff] could perform pushing and pulling
motions with upper and lower extremities within the weight restrictions
given. [Plaintiff] should avoid unprotected heights and moving machinery.
[Plaintiff] 	could 	perform 	the 	following 	postural 	activities 	occasionally:
crouching, kneeling, and crawling. [Plaintiff] should not climb any ladders,
ropes, or scaffolds on the job. 	[Plaintiff] could frequently perform climbing
of ramps or stairs, frequently balance, and frequently stoop. 	[Plaintiff]
6 Light work is defined to include work that “involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10 pounds” and that
“requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
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should 	avoid 	concentrated 	exposure 	to 	extreme 	cold 	and 	avoid
concentrated exposure to extreme heat.
[AR 25] The ALJ provided a narrative setting forth the evidence considered in determining
the RFC and explaining the ALJ’s consideration of the medical opinions in the record.
[AR 25-33]
At step four, the ALJ found that Plaintiff was able to perform her past relevant work
as a cashier II.7 [AR 33] Alternatively, at step five, the ALJ determined that there were
jobs that existed in significant numbers in the national economy that Plaintiff could have
performed, including the jobs of merchandise marker and domestic laundry worker. [AR
33-34] Based on this, the ALJ determined that Plaintiff was “not disabled” from January
1, 2018, the alleged onset date, through November 17, 2023, the date of the ALJ’s
opinion. [AR 34-35]
III. 	Analysis
Plaintiff raises two issues on appeal. 	First, Plaintiff argues that the ALJ erred in
assessing the persuasiveness of Dr. Severance’s consultative opinion. 	[#11 at 8-11]
Second, Plaintiff argues that the ALJ failed to adequately evaluate Plaintiff’s migraine
headaches. 	[Id. at 12-18] 	Because the Court agrees that the ALJ failed to properly
explain her rejection of Dr. Severance’s opinion, the Court does not address Plaintiff’s
alternative argument.
7 At step four, a claimant will be determined to be “not disabled” when it is determined
that the claimant retains the RFC to perform either: 	(1) the actual functional demands
and job duties of a particular past relevant job as performed by the claimant, or (2) the
functional demands and job duties of that job as generally required by employers
throughout the national economy. 	See Social Security Ruling 82-61, 1982 WL 31387
(1982); Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1050 (10th Cir.
1993).
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In assessing medical opinions for claims filed on or after March 27, 2017, the ALJ
“[does] not defer or give any specific evidentiary weight, including controlling weight, to
any medical opinion(s) or prior administrative medical finding(s), including those from [the
claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “the ALJ
considers the persuasiveness of those opinions using five factors: 	supportability;
consistency; relationship with the claimant; specialization; and other factors, such as ‘a
medical source’s familiarity with the other evidence in a claim.’” Zhu v. Comm’r, SSA, No.
20-3180, 	2021 	WL 	2794533, 	at 	*5 	(10th 	Cir. 	July 	6, 	2021) 	(quoting 	20 	C.F.R.
§§ 404.1520c(c), 416.920c(c)). “The factors of supportability . . . and consistency . . . are
the most important factors” and the ALJ therefore must “explain how [they] considered
the supportability and consistency factors for a medical source’s medical opinions . . . in
[the] determination or decision.”8 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see also
Zhu, 2021 WL 2794533, at *6.
“‘Supportability’ examines how closely connected a medical opinion is to the
evidence and the medical source’s explanations: ‘The more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his
or her medical opinion(s)[,] . . . the more persuasive the medical opinions . . . will be.’”
Zhu, 2021 WL 2794533, at *6 (quoting 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1)).
“‘Consistency,’ on the other hand, compares a medical opinion to the evidence: ‘The more
consistent a medical opinion(s) . . . is with the evidence from other medical sources and
8 “An ALJ must consider, but is not required to explicitly discuss, [the remaining three]
factors . . . (relationship with the claimant, specialization, and other factors) unless there
are differing medical opinions on an issue and those opinions are equally well-supported
and consistent with the record.” 	Zhu, 2021 WL 2794533, at *6 n.9 (citing 20 C.F.R.
§§ 404.1520c(b)(2), (3), 416.920c(b)(2), (3)).
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nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.’”
Id. (quoting 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2)). 	Put another way, the
“consistency” factor “is an all-encompassing inquiry focused on how well a medical source
is supported, or not supported, by the entire record.” Miles v. Saul, No. 20-cv-1456-WJM,
2021 WL 3076846, at *3 (D. Colo. Jul. 21, 2021) (quotation omitted).
Here, in assessing Dr. Severance’s opinion, the ALJ stated that “Dr. Severance’s
examination does not support [Dr. Severance’s opined] limitations, as there were not
significant objective findings noted.” 	[AR 31] 	The ALJ also stated that the “complete
evidence of record, including [Plaintiff’s] history of cervical fusion, degenerative changes
to the lumbar spine, migraines, and body mass index, is more consistent with greater
ability to stand/walk, balance, climb ramps and stairs, crouch, crawl, and kneel, and is
further more consistent with environmental limitations.” 	[Id.] 	As a result, the ALJ found
Dr. Severance’s opinion unpersuasive. [Id.]
The ALJ’s first reason for discounting Dr. Severance’s opinion is legitimate. 	The
Court agrees with the ALJ that Dr. Severance’s physical examination was largely
unremarkable. 	[AR 686-89] 	And while Plaintiff correctly notes that Dr. Severance’s
physical examination did reveal some limited flexion in the right knee and reduced back
extension [#11 at 8-9 (citing AR 687)], the Court’s limited review does not require an ALJ
to evaluate every minor limitation from every physical examination. In short, the ALJ was
free to discount Dr. Severance’s opinion because the limitations he propounded were not
consistent with his physical examination. 	Buttner v. Comm’r of Soc. Sec., No. 2:18-cv-
32-FtM-UAM, 2019 WL 2724016, at *5 (M.D. Fla. July 1, 2019) (finding that the ALJ did
not err in discounting a consultative examiner’s opined limitations, in part, because they
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were not supported by the examiner’s own examination findings); Barber v. Berryhill, CIV
16-0280 KBM, 2017 WL 1381356, at *10 (D.N.M. Mar. 23, 2017) (finding the fact that a
doctor’s opinion which was not consistent with his own evaluation decreased the opinion’s
supportability); Oakes v. Colvin, No. 15-507, 2016 WL 4581347, at *6-7 (W.D. Pa. Sept.
1, 2016) (finding that the ALJ did not err when the ALJ discounted a consultative
examiner’s opined limitations because those limitations were inconsistent with the
examiner’s findings in the mental status examination); Kelly v. Astrue, No. 2:11-cv-2534-
KJN, 2012 WL 5868595, at *6 (E.D. Calif. Nov. 19, 2012) (finding that inconsistency
between a consultative examiner’s opined limitations and the examiner’s own findings
would be a valid reason for the ALJ to reject the examiner’s opinion, but reversing the
ALJ due to other errors in the ALJ’s assessment of the examiner’s opinion); see also
Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (an
ALJ may reject a treating physician’s opinion when it is inconsistent with the physician’s
medical records).
The problem, however, is that this inconsistency is not the only reason the ALJ
gave for discounting Dr. Severance’s opinion.9 Rather, as explained above, the ALJ also
stated that the “complete evidence of record, including [Plaintiff’s] history of cervical
9 Had the ALJ made clear that the inconsistency alone caused the ALJ to reject Dr.
Severance’s opinion, the Court may have been able to affirm the ALJ’s decision. But, as
explained herein, it appears that this inconsistency was just one factor the ALJ relied upon
to discount the opinion. [AR 31 (the ALJ concluding that the “complete evidence of record,
including [Plaintiff’s] history of cervical fusion, degenerative changes to the lumbar spine,
migraines, and body mass index, is more consistent with greater ability to stand/walk,
balance, climb ramps and stairs, crouch, crawl, and kneel, and is further more consistent
with environmental limitations”)] 	Thus, it is not clear to the Court whether, based upon
the inconsistency alone, the ALJ would have given some weight to Dr. Severance’s
opinion and adopted some of Dr. Severance’s more restrictive limitations.
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fusion, degenerative changes to the lumbar spine, migraines, and body mass index, is
more consistent with greater ability to stand/walk, balance, climb ramps and stairs,
crouch, crawl, and kneel, and is further more consistent with environmental limitations.”
[AR 31] 	But how does Plaintiff’s cervical fusion, degenerative changes to the lumbar
spine, history of migraines, and obesity support less limitations? If anything, this history
would seem to support greater limitations. Indeed, the ALJ relied upon these exact same
factors—a 	history 	of 	cervical 	fusion, 	degenerative 	changes 	to 	the 	lumbar 	spine,
migraines, and body mass index—to impose greater limitations than that recommended
by Dr. Barber. [AR 30] 	In short, “the Court cannot follow the ALJ’s reasoning[;] . . . [i]n
other words, the ALJ did not adequately articulate her consideration of [the supportability
and consistency factors], as required by the Regulations.” W.H.D. v. Comm’r, No. 24-cv-
00317-NYW, 2025 WL 902802, at *5 (D. Colo. Mar. 25, 2025).
The Commissioner nonetheless argues that the ALJ’s decision must be read as a
whole and that the ALJ repeatedly noted normal examination findings. [#12 at 12] The
Court agrees that an ALJ is not required to continuously repeat earlier analyses. 	See
generally Denny v. Kijakazi, No. CIV-23-111-PRW, 2023 WL 5541570, at *4 (W.D. Okla.
July 26, 2023) (collecting cases for the proposition that the ALJ need not repeat analyses
from earlier steps at step four). And the Court further agrees that the ALJ provided an in
depth summary of Plaintiff’s medical history earlier in the decision. 	[AR 26-30] 	The
problem, however, is that the ALJ’s earlier discussion of the medical history simply
summarizes that history, without analysis. 	[Id.] 	And without an earlier analysis of the
medical records or subsequent explanation for why these medical records do not support
Dr. Severance’s opinion, the Court is left to speculate as to the basis for the ALJ’s
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conclusion that the medical records do not support the limitations proffered by Dr.
Severance. And because some of these records do support the limitations proffered by
Dr. Severance, and the ALJ does not explain why she nonetheless rejected these greater
limitations, reversal is required.10 	William M. v. Comm’r, No. 1:23-cv-01959, 2025 WL
546920, at *6 (D. Or. Feb. 19, 2025) (finding that the ALJ’s determination was not
supported by substantial evidence when the ALJ simply stated that the medical records
did not support a medical opinion but provided no explanation as to why the medical
records did not support that opinion); Galindo v. Berryhill, No. CV 16–804 CG, 2017 WL
3207914, at *4 (D.N.M. May 3, 2017) (finding that an ALJ “may not reject an opinion as
unsupported by the evidence without explaining how the opinion and evidence conflict”);
Valenzuela v. Berryhill, No. CV 16–522 CG, 2017 WL 3207159, at *4 (D.N.M. May 2,
2017) (holding ALJ's discussion of evidence in considering claimant's credibility was
insufficient to reject treating physician's opinion because the court was “left to guess at
how exactly [the treating physician's] findings were unsupported by the record”).
IV. 	CONCLUSION
Accordingly, for the foregoing reasons, the Court REVERSES the Commissioner’s
decision that Plaintiff was not under a disability within the meaning of the SSA from
January 1, 2018 through November 17, 2023 and REMANDS this matter to the
Commissioner for rehearing and reconsideration consistent with this Order.
10 Once again, the Court is not holding that an ALJ must continuously repeat earlier
analyses. 	The problem here is that the ALJ’s earlier discussion of the medical records
merely summarized those medical records, without any analysis. 	Thus, it provides no
more guidance than simply stating: “The evidence, as outlined by the medical records
included in the attached administrative record, does not support the limitations opined by
Dr. Severance.” 	And nobody would argue that such a statement satisfies the ALJ’s
obligation to consider and analyze a medical opinion.
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DATED: April 24, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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