Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ANORA P.,
Plaintiff,
v. Civ. No. 24-1270 MLG/GJF
FRANK J. BISIGNANO, Commissioner
Of the Social Security Administration,1
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This civil action arises under Title II or Title XVI of the Social Security Act (the “Act”),
42 U.S.C. §§ 401-33, for review of the final decision of the Commissioner of Social Security
Administration (the “Commissioner” or “Defendant”) denying the applications for Disability
Insurance Benefits and Supplemental Security Income filed by Plaintiff. The Court has reviewed
Plaintiff’s Opening Brief [Dkt. No. 12] along with Defendant’s brief in response [Dkt. No. 21],
and Plaintiff’s reply [Dkt. No. 22]. After reviewing the briefing, the Administrative Record (“AR”)
[Dkt. No. 7], and applicable case law, this court recommends that the presiding judge AFFIRM
the Commissioner’s decision.
I. BACKGROUND
Born in January 1991, Plaintiff was 25 years old on the alleged disability onset date of January
1, 2017. See Administrative Record (“AR”), Dkt. No. 7, at 104; Dkt. No. 12 at 3. She has a high
school education and reported completing one year of college. Id. On February 4, 2021, she filed
both a Title II application for disability and disability insurance benefits as well as a Title XVI
1 Commissioner Bisignano was sworn in as Commissioner of the Social Security Administration on May 7, 2025;
thus, pursuant to Federal Rule of Civil Procedure 25(d), he is “automatically substituted as a party.”
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application for supplemental security income. AR 387-411. On June 25, 2021, the SSA denied
Plaintiff’s claims. AR 5-20. She moved for reconsideration [AR 151], and on February 23, 2023,
the SSA denied that motion as well. AR 21-82, 152-164. Plaintiff filed a written request for hearing
before an administrative law judge (“ALJ”). AR 166-168. The ALJ held both a hearing via
videoconference on December 11, 2023 [AR 231, 306-340], and a supplemental videoconference
hearing on June 11, 2024. AR 265, 341-383.
On July 11, 2024, the ALJ issued his written decision finding that Plaintiff is not disabled. AR
88-112. Plaintiff appealed the ALJ’s decision. AR 296-298. On October 15, 2024, the Appeals
Council denied Plaintiff’s request for review. AR 113-119. On December 18, 2024, Plaintiff filed
her Complaint [Dkt. No. 1] in this case.
II. STANDARD OF REVIEW
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish 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[.]” 42 U.S.C. § 423(d)(1)(A). To evaluate claims for
benefits, the SSA uses a five-step sequential evaluation process. Barnhart v. Thomas, 540 U.S. 20,
24-25 (2003). At the first step, the claimant must show that she is not “presently engaged in
substantial gainful activity.” 20 C.F.R. § 404.1520(b) and 416.920(b). If so, at step two the claimant
must demonstrate that she has a medically severe impairment or combination of impairments that
is severe. 20 C.F.R. § 404.1520(c) and 416.920(c). An impairment or combination of impairments
is severe if it significantly limits an individual’s ability to perform basic work activities. If the
claimant satisfied step two, then at step three the ALJ must determine whether the impairment or
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combination of impairments is severe enough to both satisfy the criteria of a listed impairment and
meets the duration requirement. If the claimant satisfies this step, she is disabled. If not, then the
analysis proceeds to the fourth step.
Before considering step four, however, the ALJ must first determine the claimant’s residual
functional capacity (“RFC”). 20 C.F.R. § 404.1520(e) and 416.920(e).
At step four, the claimant must show that “the impairment or combination of impairments
prevents [her] from performing his past work.” Williams v. Bowen, 844 F.2d 748, 750-51, 751 n.2
(10th Cir. 1988); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the claimant has the
RFC to do her past relevant work, the claimant is not disabled. If she is unable to do any past
relevant work or does not have any such work, the analysis proceeds to the fifth step.
As previously noted, the claimant bears the burden of proof at steps one through four.2 See
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Grogan, 399 F.3d at 1261; Williams, 844 F.2d at
750-51, 751 n.2. If the claimant reaches step five, however, the burden shifts to the Commissioner
to show that the claimant retains sufficient capacity “to perform other work in the national economy
in view of [her] age, education, and work experience.” Yuckert, 482 U.S. at 142, 146 n.5. To support
a finding that an individual is not disabled at this step, the Social Security Administration must
show that other work exists in significant numbers in the national economy that the claimant can
do in light of her RFC, age, education, and work experience. If the claimant is able to do other work,
she is not disabled.
B. Substantial Evidence
Judicial review of the ALJ’s five-step analysis and ultimate decision is both legal and
2 Specific to this case, Plaintiff “has the burden at step three of demonstrating, through medical evidence, that her
impairments ‘meet all of the specified medical criteria’ contained in a particular listing.” Riddle v. Halter, 10 Fed.
Appx. 665, 666–67 (10th Cir. 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
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factual. See, e.g., Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (“The standard of review
in a social security appeal is whether the correct legal standards were applied and whether the
decision is supported by substantial evidence.”). If the ALJ applied the correct legal standards and
supported his findings with substantial evidence, the Commissioner’s decision stands. See Langley
v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th
Cir. 2004).
In determining whether the ALJ applied the correct legal standards, the Court evaluates
whether the ALJ “followed the specific rules of law” required for “weighing particular types of
evidence in disability cases[.]” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (internal
quotation marks omitted) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)).
The Court may reverse or remand if the ALJ failed to “apply correct legal standards” or “show . .
. [she] has done so[.]” Hamlin, 365 F.3d at 1214.
The Commissioner’s factual findings, on the other hand, are presumed conclusive so long
as substantial evidence supports them. 42 U.S.C. § 405(g). Under this 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, 102-03 (2019) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he threshold for such evidentiary
sufficiency is not high. Substantial evidence, [the Supreme] Court has said, is more than a mere
scintilla.” Id. at 103 (quotation omitted). On the other hand, substantial evidence is less than a
preponderance. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence means
only such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek, 587 U.S. at 97, 103 (quotation omitted).
Under this substantial evidence standard, a court cannot convert its meticulous review of
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the full record into “reweigh[ing of] the evidence nor substitut[ing] [the court’s] judgment for that
of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (quotation omitted);
Hamlin, 365 F.3d at 1214. Indeed, a court is to “review only the sufficiency of the evidence, not
its weight.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis in original). Thus,
“[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial evidence.” Lax, 489 F.3d at
1084 (quotation omitted). Consequently, a court “may not displace the agency’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. (quotation and brackets omitted).
III. ALJ’S DECISION AND FINDINGS
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
January 1, 2017, the claimed date of onset of her disability. AR 91. At step two, the ALJ found that
Plaintiff has several medically severe impairments that significantly limit her ability to perform
basic work activities. AR 91. They include: borderline personality disorder, chronic post-traumatic
stress disorder (“PTSD”), obsessive-compulsive disorder (“OCD”), dissociative identity disorder
with psychotic features, major depression (recurrent and severe), depersonalization/derealization
disorder, unspecified neurocognitive disorder, and prolonged grief disorder. Id.
At step three, the ALJ concluded that these impairments or combination of impairments are
not severe enough to both satisfy the criteria of a listed impairment and to meet the duration
requirement. AR 92. The ALJ considered the impairments singly and in combination under the
criteria of listings 12.02, 12.03, 12.04, 12.06, 12.08, 12.11, and 12.15. Id. First, the ALJ considered
whether the “paragraph B” criteria were satisfied due to the mental impairments causing one
extreme limitation or two marked limitations in one of four broad areas of mental functioning. The
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ALJ found that Plaintiff has a moderate limitation in all four—that is, understanding, remembering,
or applying information; interacting with others; concentrating, persisting, or maintaining pace; and
adapting or managing oneself. AR 93. Because Plaintiff did not have at least two “marked”
limitations or one “extreme” limitation, the ALJ found that the “Paragraph B” criteria were not
satisfied. As for the “Paragraph C” criteria, the ALJ stated:
A psychologist who testified at the hearing as a medical expert said whether the
claimant met the subsection one criterion of the paragraph was hard to gauge,
acknowledging that was finding [sic] the claimant did not meet that subsection was
not wrong. More importantly, the claimant’s treatment during the period at issue
consisted of outpatient counseling therapy alone. She was able to live in the
community, initially with her husband and later with a partner, despite receiving
only outpatient therapy. . . [S]he able [sic] to plan and participate in interstate trips,
go on a date, and make money by “video camming,” crocheting, and even posing
for a painting. The breadth of these activities and the financially goal-driven
activities does not show the claimant has a minimal capacity to adapt to changes in
environment or to demands that are not already part of the claimant’s daily life as
would satisfy the paragraph C criteria. It does not show that simple changes or
increased demand have led to a deterioration of the claimant’s functioning or
inability to function outside the home.
AR 93-94.
Next, the ALJ evaluated Plaintiff’s RFC, acknowledging that (1) the limitations identified
in the Paragraph B criteria are not an RFC assessment but rather are used to rate the severity of
mental impairments at steps 2 and 3 of the sequential evaluation process, and (2) the mental RFC
assessment requires a more detailed assessment of the areas of mental functioning. AR 94. Ater
reviewing the evidence, the ALJ concluded that Plaintiff has the RFC “to perform a full range of
work at all exertional levels” but with certain limitations. Id. Those limitations include the ability
to “understand, remember, and carry out only simple instructions; maintain attention and
concentration for no longer than two-hour blocks of time; occasionally interact with supervisors,
co-workers, and the general public; use judgment to make only simple work-related decisions;
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perform only occasional production rate work (assembly line/hourly quota work); and tolerate only
occasional changes in the work setting.” Id.
At step four, the ALJ concluded that Plaintiff has no relevant past work. AR 103. Finally,
at step five, the ALJ found that considering Plaintiff’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers in the national
economy that she can perform. AR 104. These include laundry aide (cleaner, hospital), order
picker, and industrial cleaner. Id. Accordingly, the ALJ found that Plaintiff is not disabled within
the meaning of section 204.00 in the Medical-Vocational Guidelines. AR 105.
IV. PLAINTIFF’S CONTENTIONS
Plaintiff alleges that the ALJ committed reversible error in two ways. First, she alleges that
the ALJ misinterpreted a medical expert’s opinion and then used that misinterpretation to find that
Plaintiff did not satisfy a Listing in step three of the sequential evaluation process.
Second, she asserts that the ALJ committed reversible error at step three by inadequately
explaining why he rejected opinions by (1) Ms. Lichtle and Dr. LaCourt, who wrote a report
regarding Plaintiff’s mental status examination, and (2) Dr. Wynne, Plaintiff’s treating
psychologist. Dkt. No. 12 at 1, 18, and 21.
V. DISCUSSION
A. The ALJ Did Not Use a Misinterpretation of Dr. Heath’s Opinion to Find
that Plaintiff Did Not Satisfy a Listing
As previously noted, the ALJ concluded that Plaintiff satisfied none of the listed
impairments. As part of that analysis, the ALJ stated that the evidence failed to establish the
necessary presence of “paragraph C” criteria. AR 93-94. Plaintiff challenges that conclusion as to
Listing 12.04, which relates to depressive, bipolar and related disorders. See 20 C.F.R. Pt. 404,
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Subpt. P, App’x 1, § 12.04; Dkt. No. 12 at 12. According to Plaintiff, the ALJ should have found
that Listing 12.04 is met and that she is disabled.
In order to satisfy paragraph C, however, a plaintiff must show as a threshold matter that
she has a medically documented history of a serious disorder over a period of at least two years.
The parties agree that this requirement is satisfied. Dkt. No. 12 at12; Dkt. No. 21 at 5. Then, in
order to satisfy the remainder of paragraph C, Plaintiff must prove both (1) the presence of medical
treatment, mental health therapy, psychosocial support, or a highly structured setting that is
ongoing and that diminishes the symptoms and signs of the mental disorder, and (2) minimal
capacity to adapt to changes in the claimant’s environment or to demands that are not already part
of the claimant’s daily life. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.04. The ALJ concluded that
Plaintiff did not satisfy either requirement; Plaintiff argues the ALJ misinterpreted the medical
testimony. The Court addresses each subpart of Paragraph C in turn.
1. Presence of medical treatment, mental health therapy, psychosocial support, or
a highly structured setting that is ongoing and that diminishes the symptoms
and signs of the mental disorder
In discussing this requirement, the ALJ referred to the hearing testimony of Dr. Heath, a
consulting psychologist who reviewed Plaintiff’s medical records and other documentation and
testified as an expert at the hearing. AR 348-349. Plaintiff asserts that the ALJ mischaracterized
Dr. Heath’s testimony when he concluded that Plaintiff did not meet this requirement.
Dr. Heath’s testimony was not a model of clarity. Initially, Dr. Heath implied that Plaintiff
may satisfy the paragraph C criteria. When the ALJ asked Dr. Heath if Plaintiff met any of the
12.00 listings, Dr. Heath stated,
I don’t—I wouldn’t think it’s a stretch to go 12.04. We had really the nice listing
of symptoms in the consultative evaluation . . .and then again rather than even need
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to debate the B Criteria, you could jump to the C Criteria where she’s clearly
received treatment from Dr. [Wynne] for kind of an extended period of history, you
know, it seems that she’s had a number of jobs for some sort [sic] time, been able
to hold things, you know, some elements of life were reasonably together. We could
probably say that’s you know, somewhat diminishing. Hopefully doing better than
she would be without that therapeutic support but not as, you know, not great. I’d
rather look to the C than the B Criteria.
AR 363-64. Later in his testimony, the ALJ revisited the paragraph C requirements regarding
Listing 12.04, asking Dr. Heath to look “at paragraph one specifically, medical treatment, mental
health therapy, psychosocial support, or a highly structured setting that is ongoing and that
diminishes the symptoms and signs of a mental disorder, is that present?” AR 372. In response,
Dr. Heath made this ambiguous statement:
Hard to gauge that. I think that’s when we have to debate. I think on the point he
was making is, you know, still seeing very big, big struggles, but again we have
instances of, you know, renewed relationships, so, you know, financially goal-
driven activities. So there is some adequate functioning, you know, I may like to
say does better with therapy than without it. That one I feel like is unfortunately not
as clearly definable. Does it diminish the signs and symptoms? Does it not? It’s
very difficult to say, you know, and in some ways starts to conflict with #2, right,
marginal adjustment. How does it diminish if there’s marginal adjustment? It still
appears like there’s, you know, notable deficits or prominent psychological
symptoms, distress, I would say. . . . But, you know, given the time that she goes
to see certainly Dr. [Wynne, Plaintiff’s treating psychologist] I would like to think
that, you know, she continues to go there because it diminishes symptoms or helps
her in a way that otherwise she would not be experiencing amelioration, you know
we take medicine because it alleviates symptoms. I, you know, in psychotherapy,
people vote with their feet. I presume that’s why she continues to go back is she
finds it helpful.
AR 372-73 (emphasis added). In response, the ALJ repeated, “So you said as far as C1, paragraph
C1, it’s hard to gauge. It’s not clearly definable.” Dr. Heath responded, “It is.” AR 373. Then the
ALJ stated, “So, based upon that, I’m finding that specific paragraph is not met.” Dr. Heath
responded, “Okay. I don’t think it’s wrong.” AR 373-74.
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When discussing the paragraph C(1) requirement in his Decision, the ALJ stated that, “A
psychologist [Dr. Heath] who testified at the hearing as a medical expert said whether the claimant
met the subsection one criterion of the paragraph was hard to gauge, acknowledging that was [sic]
finding the claimant did not meet that subsection was not wrong.” AR 93. See also AR 102 (“While
the doctor noted that the paragraph C subsection one criterion concerning diminishment of
symptoms was hard to gauge, he acknowledged that he did not disagree with a finding that the
criterion was not met.”). According to Plaintiff, the ALJ mischaracterized Dr. Heath’s testimony
because in Plaintiff’s view, Dr. Heath testified at AR 363-364 that Plaintiff had met the criteria for
Listing 12.04 under the paragraphs A and C criteria. Dkt. No. 12 at 14.
The Court disagrees with Plaintiff and concludes that the ALJ did not mischaracterize Dr.
Heath’s testimony. Rather, the ALJ is correct that, although Dr. Heath initially implied vaguely
that Plaintiff might satisfy paragraph C(1), in the end he opined that it would not be incorrect to
conclude that the paragraph C(1) factors are not met in this case. At first, Dr. Heath suggested that
Plaintiff might satisfy Listing 12.04, although he did not state a strong opinion. He clearly
acknowledged Plaintiff’s long history of treatment by Dr. Wynne, but as to whether the treatment
has diminished the signs and symptoms of her disorder, Dr. Heath was far from definitive. He
stated, “We could probably say that’s, you know, somewhat diminishing.” AR 364 (emphasis
added). Dr. Heath followed that with the noncommittal statement, “Hopefully doing better than
she would be without that therapeutic support.” Id. And then later, when the ALJ returned to the
paragraph C(1) requirement, Dr. Heath called it “hard to gauge,” AR 372, “very difficult to say,”
AR 373, and “not clearly definable.” Id. Dr. Heath posed several rhetorical questions, such as,
“Does it diminish the signs and symptoms? Does it not?” and, “How does it diminish if there’s
marginal adjustment?” These further add to the ambiguity of his testimony. AR 373. Then Dr.
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Heath said that he “would like to think” that Plaintiff continues seeing Dr. Wynne because it
diminishes her symptoms or helps her, but he stopped short of opining that this is actually the case.
Id. Then, when the ALJ stated that he intended to find that paragraph C(1) is not met, Dr. Heath
said, “OK. I don’t think it’s wrong.” AR 373-74. The Court construes this exchange as Dr. Heath
agreeing with the ALJ that Plaintiff does not meet the paragraph C(1) criteria.
Plaintiff argues that the ALJ erred because “the ALJ is not able to rewrite the regulations
or decide on his own that a listing’s criteria are simply undefinable and therefore the listing is not
met.” Dkt. 12 at 15. However, that is not what the ALJ dId. A careful reading of the testimony
shows that it was Dr. Heath who first stated that it was hard to gauge whether the paragraph C(1)
criteria were met, and that while he “may like to say” that Plaintiff “does better with therapy than
without it,” “that one I feel like is unfortunately not as clearly definable.” AR 373. In the Court’s
view, it appears that Dr. Heath is saying that it is not clear to him that Plaintiff satisfies the criteria.
Only after Dr. Heath says that it is “not as clearly definable” does the ALJ repeat back Dr. Heath’s
own words such as “hard to gauge” and “not clearly definable” as grounds to find that paragraph
C(1) criteria are not met. This is not an attempt by the ALJ to rewrite the regulations.
Next, Plaintiff asserts that it is “unclear whether Dr. Heath is saying that he does not think
the criteria are wrong or that he does not think the ALJ is wrong.” Dkt. No. 12 at 15-16. Again,
the Court disagrees. The ALJ states what his finding will be, and Dr. Heath says, “I don’t think
it’s wrong.” The Court does not find this to be ambiguous. Finally, Plaintiff argues that whatever
Dr. Heath may have meant by, “I don’t think it’s wrong,” his testimony both before and after that
statement indicate that he believed that Listing 12.04 was met. Dkt. No. 12 at 16. For all the reasons
previously discussed in Part V(A)(1) of this opinion, however, the Court rejects that interpretation
of Dr. Heath’s testimony.
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In sum, the ALJ did not misconstrue Dr. Heath’s testimony regarding the paragraph C(1)
criteria, and his decision on this issue is supported by substantial evidence.
2. Minimal capacity to adapt to changes in the claimant’s environment or to
demands not already part of her daily life
With regard to the Paragraph C(2) requirement of marginal adjustment, Plaintiff makes a
two-pronged argument. Dkt. No. 12 at 17. First, she contends that the Court must remand because
the ALJ claimed to rely on Dr. Heath’s opinion regarding whether a listing is met but did not adopt
his conclusion that Listing 12.04 is met. Id. Second, she argues that the ALJ erroneously relied on
extraneous factors not enumerated in the Paragraph C(2) criteria. Id.
Starting with Plaintiff’s first argument in which she claims that Dr. Heath testified that she
satisfied Paragraph C(2), Plaintiff points out that Dr. Wynne, her treating psychologist, stated that
Plaintiff had been able to work for only a few months before becoming overwhelmed by work
requirements. Dkt. No. 12 at 13 (citing AR 717). Plaintiff cites to portions of Dr. Heath’s testimony
in which he mentions her “very big, big struggles,” “notable deficits,” and “multiple instances [of]
not coping with stress well,” as support for her contention that Paragraph C(2) is satisfied. Id.
(citing AR 373-74, 377). Plaintiff also acknowledges, however, that Dr. Heath was “equivocal”
about whether she could handle work demands, but he did not directly disagree with Dr. Wynne.
Dkt. No. 12 at 13. She contends that these statements by Drs. Wynne and Heath all suggest that
Paragraph C(2) is met. Id. at 13-14.
As with his testimony on the Paragraph C(1) factors, Dr. Heath’s testimony on the
Paragraph C(2) factors was unclear. When asked if a person with Plaintiff’s limitations could
sustain work for any length of time, have regular attendance, and be punctual within the normal
work-related setting, Dr. Heath responded,
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And is it—again, I pose the caveat, difficult to speculate, you know, no instances—
I believe she said I’ve never been fired from a job for anything but, you know,
multiple instances not coping with stress well. If somebody was, you know,
routinely having panic attacks or things like that, you know, then certainly I guess
that would make it difficult, you know, to perform the functions, right. They may
not be able to get out of the house at times. Again, if they can’t drive, you know.
And in contrast, again, to give the other side of it though, you know, the medical
record from 18F—that’s the—I believe the nurse practitioner who said, you know,
she’d likely benefit from one of these mood stabilizers. These have decent
effectiveness. You wouldn’t want to penalize someone for saying, hey, I don’t want
a medication, I prefer, you know, therapy. But you know, to your point I guess it
depends to what level of treatment maybe they have. There could be some number
of things influencing.
AR 377-78.
This testimony is ambiguous at best, as it is far from clear what, if anything, Dr. Heath was
trying to say about Plaintiff’s ability to regularly attend work over a sustained period of time. The
Court disagrees with Plaintiff’s contention that the ALJ misunderstood Dr. Heath’s testimony; in
fact, Dr. Heath appears to have been working hard to avoid stating anything definitive about
whether Plaintiff has the ability to adapt to changes in her environment or demands outside her
normal daily life. Further, the Court rejects the assertion that Dr. Heath concluded that Plaintiff
satisfied Listing 12.04. The Court has already addressed and discarded that argument in Part
V(A)(1), supra, of this opinion. Finally, noting that Plaintiff has “very big, big struggles,” “notable
deficits,” and “multiple instances [of] not coping with stress well,” is a far cry from concluding
that Plaintiff has satisfied the Paragraph C(2) requirements. The ALJ did not misinterpret Dr.
Heath’s testimony.
Plaintiff’s second argument for remand is that the ALJ erroneously applied factors outside
the C(2) criteria when he noted that her “treatment during the period at issue consisted of outpatient
counseling and therapy alone,” that she was able to go out and “able to live in the community,”
and she was able to make money by filming herself nude. Id. at 16. According to Plaintiff, her
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intermittent trips for recreation (such as traveling out of state for a concert or birthday) and filming
herself online for money do not bear on whether she can adjust to changes in environment or new
demands. Id. at 16-17.
To evaluate Plaintiff’s argument, the Court turns to 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.04(G)(2)(c), which explains that Paragraph C(2) is satisfied when, despite the claimant’s
diminished symptoms and signs as described in C(1), the claimant still has only marginal
adjustment. The regulation then explains that marginal adjustment
means that your adaptation to the requirements of daily life is fragile; that is, you
have minimal capacity to adapt to changes in your environment or to demands that
are not already part of your daily life. We will consider that you have achieved only
marginal adjustment when the evidence shows that changes or increased demands
have led to exacerbation of your symptoms and signs and to deterioration in your
functioning; for example, you have become unable to function outside of your home
or a more restrictive setting, without substantial psychosocial supports (see
12.00D). Such deterioration may have necessitated a significant change in
medication or other treatment. Similarly, because of the nature of your mental
disorder, evidence may document episodes of deterioration that have required you
to be hospitalized or absent from work, making it difficult for you to sustain work
activity over time.
(emphasis added). Therefore, the regulation makes it clear that the ALJ did not err by considering
that Plaintiff’s care had never deviated from outpatient counseling and therapy alone, because one
factor to consider under the regulation is whether Plaintiff had required a significant change in
treatment as a result of her inability to adapt to the requirements of daily life. Here, Plaintiff
continued the same treatment approach even when attempting to work outside her home. Later in
his opinion, the ALJ noted that Plaintiff had made several types of changes to her daily life,
including planning, paying for, and participating in two out of state trips for a family party and a
concert; going on a date; and engaging in activities for money (mostly filming herself), which did
not appear to exacerbate her symptoms or spur a change in treatment. AR 94, 96. The ALJ
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described this as evidence that Plaintiff was able to participate “in activities outside her home and
engagement in goal-directed activities and interaction with others.” AR 96. This is substantial
evidence supporting the ALJ’s conclusion that the Paragraph C(2) factors are not satisfied. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005) (holding that “an ALJ’s findings at
other steps of the sequential process may provide a proper basis for upholding a step three
conclusion that a claimant’s impairments do not meet or equal any listed impairment). That being
the case, Court will not reweigh the evidence that was before the ALJ.
B. The ALJ Adequately Explained Why He Rejected Medical Opinions by Ms.
Lichtle and Dr. LaCourt and by Dr. Wynne
Plaintiff alleges that the ALJ erred in concluding that two medical opinions were not
persuasive. The first is the consultative mental status report from October 2022 written by
psychologist associate Ms. Kris Lichtle and cosigned by Dr. David LaCourt, a rehabilitation
psychologist. The ALJ rejected their opinion that Plaintiff has marked limitations in four areas of
mental functioning. The second is the opinion of Dr. Wynne, Plaintiff’s treating psychologist. The
ALJ found unpersuasive Dr. Wynne’s opinion that Plaintiff could not maintain regular attendance
and punctuality at work, sustain an ordinary routine, or complete a normal workday or workweek
without interruptions from symptoms, such that she is precluded from regular and continuing work
activity.
(1) Standard of Review
In evaluating the persuasiveness of medical opinions, an ALJ must consider five factors:
(1) supportability; (2) consistency; (3) relationship with the claimant, including length of treatment
relationship, frequency of examinations, purpose of the treatment relationship, extent of the
treatment relationship, and examining relationship; (4) specialization; and (5) other factors. 20
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C.F.R. § 404.1520c(c). Of these, the regulations require the ALJ to discuss only supportability and
consistency. 20 C.F.R. §§ 404.1520c(b)(2) and 416.920c(b)(2). The ALJ need only provide
information to allow the court to “trace the path of the adjudicator’s reasoning.” Nielsen v.
Comm’r, SSA, No. 21-4136, 2022 WL 15570650 at *2 (10th Cir. Oct. 28, 2022).
Supportability—the first factor in determining persuasiveness of a medical opinion—
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.” 20 C.F.R. § 404.1520c(c)(1). “Objective medical evidence means
signs, laboratory findings, or both.” 20 C.F.R. § 404.1502(f).
Consistency—the second factor in determining persuasiveness of a medical opinion—
compares a medical opinion to the evidence. “The more consistent a medical opinion(s) is with the
evidence from other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) will be.” § 404.1520c(c)(2).
[O]ur use of the word “consistent” in the regulations is the same as the plain
language and common definition of “consistent.” This includes consideration of
factors such as whether the evidence conflicts with other evidence from other
medical sources and whether it contains an internal conflict with evidence from the
same medical source. We acknowledge that the symptom severity of some
impairments may fluctuate over time, and we will consider the evidence in the
claim that may reflect on this as part of the consistency factor as well. Thus, the
appropriate level of articulation will necessarily depend on the unique
circumstances of each claim.
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5854 (Jan. 18,
2017) (emphases added).
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In explaining how persuasive a medical opinion is, each of the ALJ’s findings must be
supported by substantial evidence. “[A]ll the ALJ’s required findings must be supported by
substantial evidence, and he must consider all relevant medical evidence in making those
findings.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citations and quotation
marks omitted). The ALJ must provide “sufficient specificity to enable the reviewing court to
decide whether the determination is supported by substantial evidence.” Harp v. Kijakazi, No. 21-
cv-00275-KRS, 2022 WL 2341740, at *6 (D.N.M. June 29, 2022) (quotation omitted). Finally,
judicial review is limited to the reasons stated in the ALJ’s decision. Carpenter v. Astrue, 537 F.3d
1264, 1267 (10th Cir. 2008) (citation omitted).
(2) Dr. LaCourt and Kris Lichtle
As previously noted, Dr. LaCourt and Ms. Lichtle opined (Ex. 16F, AR 663-69) that
Plaintiff had marked limitations in numerous areas of mental functioning, to include understanding
and remembering detailed/complex instructions; sustained concentration/task persistence for
carrying out instructions, attending and concentrating, and working without supervision; social
interaction with the public, co-workers, and supervisors; adapting to changes in the workplace and
awareness of normal hazards; and use of public transportation/travel to unfamiliar places. AR 669.
A marked limitation is defined as a “seriously limited” ability to function in the area in that manner.
See 20 C.F.R. Pt. 404, Subpt. P, App’s 1 § 12.00(F)(2). Dr. LaCourt and Ms. Lichtle also opined
that Plaintiff’s memory issues prevented her from managing her own benefits. But the ALJ rejected
the opinion, finding it unpersuasive. See AR 101 (citing Ex. 16F, AR 663-69). The ALJ listed
evidence in the record that he found to be inconsistent with their opinion. He noted that Plaintiff
presented with clean clothes, normal grooming and hygiene, appropriate eye contact, and no
evidence of untoward preoccupations or hallucinations. AR 101. He noted that their report states
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that Plaintiff’s memory and recall were intact, and she scored in the average range on intelligence
testing. The ALJ stated that the foregoing are “not demonstrative of marked limitations.” Id.
Finally, he noted that “marked limitations are inconsistent with activities involving planning and
task completion such as crocheting, with planning and participation in trips to Utah and Phoenix,
and with the claimant’s conservative treatment.” Id.
Plaintiff argues that, as to the supportability factor, the ALJ failed to acknowledge any
evidence that supported Dr. LaCourt and Ms. Lichtle’s opinion that she has a marked limitation in
all four areas of mental functioning. Dkt. No.12 at 19-20. These include “impaired” memory
scores3, Plaintiff’s “obsessive” thoughts dwelling on whether she locked the door at home4, her
increase in anxiety over testing, or her own self-reported history of trauma and abuse as well as
symptoms that led to the diagnoses of PTSD and depersonalization/derealization disorder. Id. See
also AR 668.
The Court finds that the ALJ did not err in his supportability analysis. The ALJ concluded
that Dr. LaCourt and Ms. Lichtle’s opinion that Plaintiff has marked limitations was not supported
by their own mostly normal examination findings. Normal exam findings are a valid reason to find
that supportability is not met. Toledo v. Comm’r, SSA, 2024 WL 4357913 at *3 (10th Cir. Oct. 1,
2024). The Court also finds that Plaintiff’s description of some of Dr. LaCourt and Ms. Lichtle’s
findings to be slightly exaggerated—they did not describe Plaintiff as being “obsessive” about the
locked door, for example. Furthermore, the Court notes that while Plaintiff complains that the ALJ
3 The report states that Plaintiff’s “Auditory Memory, Visual Working Memory, Immediate Memory, and Delayed
Memory are in the Borderline/Below Average range. Visual Memory is in the Average range.” AR 668. It is not
clear to the Court that this indicates a memory that is “impaired.” On the other hand, the report also states that
Plaintiff cannot manage her own benefits due to “significant memory issues.” AR 669.
4 Dr. LaCourt and Ms. Lichtle did not characterize Plaintiff’s thoughts about the door as “obsessive.” Instead, the
report merely states, “She mentioned several times during her office visit that she was not sure that she locked the
door to her home.” AR 666.
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engaged in cherry-picking, Plaintiff does not explain how the evidence in the report that the ALJ
did not cite, such as clinical findings of Borderline/Below Average memory, an increase in anxiety
over intelligence and memory tests in the office, and her marked history of trauma, abuse, and
PTSD, support a finding of marked limitations by showing that Plaintiff has a “seriously limited”
ability to function. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(F)(2)(d).
Plaintiff complains that the ALJ engaged in impermissible “cherry picking,” citing three
cases. See Dkt. No. 12 at 20-21. The cases she cites, however, predate the use of the current
regulations regarding the factors the ALJ should consider and the requirement to discuss
supportability and consistency. Thus, those cases are not particularly persuasive. Here, the Court
can trace the path of the ALJ’s reasoning, which is all that is required.
As to the consistency factor, the ALJ noted that Dr. LaCourt and Ms. Lichtle’s conclusion
that Plaintiff had various marked limitations was “inconsistent with activities involving planning
and task completion such as crocheting, with planning and participation in trips to Utah and
Phoenix, and with the claimant’s conservative treatment.” AR 101. In this sentence, the ALJ was
referring to evidence he discussed earlier in his opinion that showed that Plaintiff planned for, paid
for, and traveled to her grandmother’s birthday in Utah in August 2022, just a couple of months
before Dr. LaCourt and Ms. Lichtle evaluated her. AR 96, 664. Plaintiff also bought tickets for a
concert in Phoenix for a concert a year later, traveling there by car with other people. AR 96. The
ALJ noted that “[t]hese trips give a reasonable inference of a capacity for planning and execution
of goal-directed activities outside her home that is not consistent with allegations of a need for
significant supervision or with a confined lifestyle due to symptoms. They also reasonably infer
an ability to function successfully in groups . . . ” AR 96-97. As for crocheting, the ALJ discussed
that Plaintiff had made a shawl as a gift for her grandmother and created items to earn money,
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which the ALJ found to be inconsistent with an inability to initiate, persist at, and complete tasks.
AR 97. The ALJ also cited Plaintiff’s steady yet conservative outpatient counseling therapy over
a period of years as further evidence that Plaintiff does not have marked limitations requiring
greater intervention. AR 97. In other words, the ALJ weighed evidence of Plaintiff’s activities
outside the clinical setting and found it more persuasive than the opinion set forth by Ms. Lichtle
and Dr. LaCourt.
Plaintiff argues that the ALJ’s consistency analysis is inadequate because he failed to
acknowledge the consistency between Dr. LaCourt and Ms. Lichtle’s opinion regarding marked
limitations and the opinion offered by Dr. Wynne, her treating psychologist. Dkt. No. 22 at 8. She
also argues that the ALJ should have considered that a screening by an examining psychiatric nurse
practitioner indicated severe depression and anxiety, and that all treating and examining providers
agreed that Plaintiff has a severe trauma history that has produced depersonalization Dkt. No. 12
at 20 (citing AR 544-45, 590, 594, 602-03, 717). Once again, Plaintiff accuses the ALJ of “cherry-
picking” evidence.
By characterizing the ALJ’s analysis as “cherry-picking,” Plaintiff is essentially asking the
Court to reassess the credibility and weight of the evidence, thereby reweighing the evidence that
was properly before the ALJ in the process. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008) (“In reviewing the ALJ's decision, ‘we neither reweigh the evidence nor substitute our
judgment for that of the agency.”
It would have been preferable for the ALJ to make more extensive supportability and
consistency findings when discussing the findings of Dr. LaCourt and Ms. Lichtle, but the ALJ’s
written decision adequately explains the ALJ’s reasoning for rejecting their opinions. See Keyes-
Zachary v. Astrue, 695 F.3d 1145 (10th Cir. 2012) (“Where, as here, we can follow the
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adjudicator’s reasoning in conducting our review and can determine that correct legal standards
have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal”).
Accordingly, the Court concludes that the ALJ’s determination as to the persuasiveness of
the opinion is supported by substantial evidence.
(3) Dr. Wynne
As discussed above, Plaintiff’s treating psychologist, Dr. Wynne, diagnosed Plaintiff with
dissociative identity disorder and noted a host of other symptoms, including but not limited to
anhedonia, inappropriate affect, mood disturbance, difficulty thinking or concentrating, and
hallucinations or delusions. AR 549-558. Dr. Wynne concluded that Plaintiff could not work
because she cannot maintain regular work attendance and punctuality, sustain an ordinary routine,
complete a normal workweek, perform at a consistent pace, or deal with normal work stress.
As grounds for finding these limitations unpersuasive, the ALJ noted that while Dr.
Wynne’s notes mentioned Plaintiff’s unpleasant odor and that Plaintiff rarely showered, the ALJ
cites notes from Dr. Wynne mentioning issues with running water at Plaintiff’s residence that could
imply other reasons for limited bathing. AR 102, 682, 686. The ALJ acknowledged that Dr.
Wynne’s treatment notes do mention signs of psychotic symptoms, but he pointed out that
psychotic behavior was not mentioned by any other providers in different treatment settings. AR
102 (citing treatment records by Desiree Provencio, CNP; Tamara Saimons, CNP; and Dr. David
LaCourt). Finally, he pointed out that Dr. Wynne’s clinical notes refer to Plaintiff’s anticipation
of and preparation for trips to Utah and Phoenix, which show broader mental abilities than Dr.
Wynne’s opinion suggests. AR 102. Finally, the ALJ again cited Plaintiff’s long-term treatment
with counseling only (no hospitalizations or medications) and that she denied having anxiety,
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depression, and fatigue at primary care visits. For these reasons, the ALJ concluded that Dr.
Wynne’s opinion of Plaintiff’s severe restrictions is not persuasive.
With regard to supportability, Plaintiff argues that the ALJ has failed to conduct a
supportability analysis, but rather argued “against additional limitations that could have been
included based on Dr. Wynne’s treatment notes rather than what Dr. Wynne said her limitations
actually were.” Dkt. No. 12 at 25. The Court disagrees, finding that the ALJ did conduct a
supportability analysis. The ALJ relied on several facts from Dr. Wynne’s own notes in concluding
his opinion was not supportable. First, he noted that Plaintiff was sometimes malodorous, but Dr.
Wynne’s notes also mentioned issues with running water at her home, meaning that Plaintiff’s
occasional failure to bathe did not necessarily stem from mental health issues. Further, the ALJ
looked to Dr. Wynne’s clinical notes regarding Plaintiff’s “anticipation and preparation” for her
trips to Utah for a family birthday and to Phoenix for a concert. The ALJ indicated here, as he did
elsewhere in his opinion, that Plaintiff’s planning and participation in those events support the
conclusion that Plaintiff has more than the minimal mental abilities than Dr. Wynne’s opinion
suggests.
With regard to consistency, Plaintiff asserts that the ALJ cherry-picked portions of the
record and ignored others. Plaintiff asserts that “emphasizing [her] ability to occasionally do things
or go places neglects the fact that severe symptomology is a recurrent finding within the record.”
This is merely a request, however, for the Court to reweigh the competing evidence that was before
the ALJ. Plaintiff also asserts that both Plaintiff and Dr. Wynne have observed that she is “at times
stable enough to do things like consistently showing up for work, but she eventually destabilizes.”
Dkt. No. 12 at 22. Plaintiff argues that the ALJ has failed to explain how her ability to “sometimes
go out and do recreational activities is inconsistent with Dr. Wynne’s opinion.” Id. The Court
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disagrees. As previously discussed with regard to Dr. LaCourt and Ms. Lichtle’s opinion, the ALJ
pointed out that Plaintiff’s activities required planning, preparation, travel, and interactions with
others that are inconsistent with a complete inability to function in a work setting, as Dr. Wynne
has opined. The ALJ reached the same conclusion here, noting “Dr. Wynne’s clinical notes refer
to the claimant’s anticipation and preparation for the trips to Utah to see family and to Phoenix for
a concert.” AR 102. Finally, Plaintiff also argues that her long-term, conservative therapy
treatment is not wrong, and Dr. Wynne has advised her not to use psychotropic medicines. Dkt.
No. 12 at 23 (citing AR 540). That being the case, Plaintiff is not noncompliant with a prescribed
treatment, and analysis of the Frey factors5 is unnecessary. Indeed, as Plaintiff points out, different
providers have had varying opinions as to the appropriate treatment for Plaintiff. Id. at 23. The
ALJ simply weighed the fact that Plaintiff’s treating doctor does not recommend medications and
Plaintiff does not seem to request them, with both preferring psychotherapy alone, as evidence that
undermines Dr. Wynne’s opinion that her condition was so serious that she is precluded from
regular and continuing work activity. Finally, the ALJ concluded that Dr. Wynne’s notes
mentioning “signs of psychotic symptoms” are not consistent with findings of providers in other
examination settings. Plaintiff has not cited records from any other provider who has noted
psychotic symptoms.
Accordingly, the Court finds that substantial evidence supports the ALJ’s determination
that Dr. Wynne’s opinion is not persuasive.
5 In Frey v. Bowen, the Tenth Circuit identified four factors ALJs must consider when “reviewing the impact of a
claimant's failure to undertake treatment” on a disability determination: (1) whether the treatment would restore the
claimant's ability to work, (2) whether it was prescribed, (3) whether the claimant refused the treatment, and (4)
whether the refusal was justifiable. 816 F.2d 508, 517 (10th Cir. 1987).
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IT IS THEREFORE RECOMMENDED that the Commissioner’s decision be AFFIRMED,
Plaintiff’s Motion to Reverse and Remand to Agency [Dkt. No. 12] be DENIED, and this case be
DISMISSED WITH PREJUDICE.
___________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they may
file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1)(c). Any request for an extension must be filed in writing no later than seven days
from the date of this filing. A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party wants to have appellate
review of the proposed findings and recommended disposition. If no objections are
filed, no appellate review will be allowed.
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