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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SHANE ELI LUCERO,
Plaintiff,
vs. 	Civ. No. 25-283 JFR
FRANK BISIGNANO, Commissioner
of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER 1
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 8)2 filed May 14, 2025, in connection with Plaintiff’s Motion to Reverse and Remand for
Rehearing With Supporting Memorandum, filed July 14, 2025. Doc. 13. Defendant filed a
Response on September 3, 2025. Doc. 17. Plaintiff filed a Reply on October 1, 2025. Doc. 20.
The Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C.
§§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law
and being fully advised in the premises, the Court finds that Plaintiff’s motion is well-taken and
is GRANTED.
I. Background and Procedural Record
Plaintiff Shane E. Lucero (Mr. Lucero) alleges he became disabled on November 28,
2018, at the age of forty-two years and one month, because of vestibular nerve damage,
1 Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 3, 5, 6.)
2 Hereinafter, the Court’s citations to Administrative Record (Doc. 8), which is before the Court as a transcript of the
administrative proceedings, are designated as “Tr.”
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headaches, anxiety, depression, left rib pain, gout, vestibular disequilibrium right ear,
dysfunction of both eustachian tubes, tinnitus, and dizziness. Tr. 66, 232. Mr. Lucero completed
his GED in 1994 and obtained a commercial driver’s license in 1996. Tr. 237. Mr. Lucero
worked as a commercial truck driver. Tr. 238, 253. Mr. Lucero stopped working on
November 18, 2018, due to his medical conditions. Tr. 237.
On September 6, 2019, Mr. Lucero protectively filed an application for Social Security
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42
U.S.C. § 401 et seq. Tr. 198-202. On November 19, 2019, Mr. Lucero’s application was denied.
Tr. 65, 66-83, 100-103. On February 10, 2021, it was denied again at reconsideration. Tr. 84,
85-96, 106-09. Upon Mr. Lucero’s timely request, Administrative Law Judge (ALJ) Shawn
Bozarth held a hearing on December 7, 2021. Tr. 37-64. Mr. Lucero appeared telephonically
with attorney Donna K. Baslee.3 Id. On January 6, 2022, ALJ Bozarth issued an unfavorable
decision. Tr. 18-31. On August 23, 2022, the Appeals Council denied Mr. Lucero’s request for
review. Tr. 1-7.
On September 20, 2022, Mr. Lucero timely filed a Complaint seeking judicial review of
the Commissioner’s final decision. Tr. 2049-2065 (see USDC NM Civ. No. 22-693 JHR
(Doc. 1)). On December 6, 2022, Magistrate Judge Jerry H. Ritter entered an Order granting the
Commissioner’s Unopposed Motion to Remand. Tr. 2059. On January 19, 2023, the Appeals
Council entered an Order Remanding Case to Administrative Law Judge instructing that ALJ
Bozarth’s hearing decision did not sufficiently consider Mr. Lucero’s subjective symptoms
resulting from migraine headaches and failed to address an unresolved conflict between the VE’s
testimony and the DOT. Tr. 1321-24.
3 Mr. Lucero is represented in these proceedings by Attorney Laura Johnson. Doc. 1.
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On October 11, 2023, ALJ Bozarth Holappa held a second administrative hearing. Tr.
1295-1318. On December 15, 2023, ALJ Bozarth issued an unfavorable decision. Tr. 1269-
1285. On February 16, 2024, Mr. Lucero timely filed a Complaint seeking judicial review of the
Commissioner’s final decision. Tr. 2092-2093 (see USDC NM Civ. No. 24-159 GBW) (Doc.
1.)) On April 17, 2024, Magistrate Judge Gregory B. Wormuth entered an Order granting the
Commissioner’s Unopposed Motion to Remand. Tr. 2097-2098. On May 22, 2024, the Appeals
Council entered an Order Remanding Case to Administrative Law Judge instructing that ALJ
Bozarth failed to comply with the January 9, 2023, remand order regarding an unresolved
conflict between the VE’s testimony and the DOT and directing that further consideration be
given to Mr. Lucero’s maximum residual functional capacity and to provide an appropriate
rationale with specific references to evidence of record in support of assessed limitations. Tr.
2104-2105.
On November 8, 2024, ALJ Talia Timmins held a third administrative hearing. Tr. 1998-
2029. On December 19, 2024, ALJ Timmons issued an unfavorable decision. Tr. 1962-1985.
Mr. Lucero did not request a review by the Appeals Council but timely filed a Complaint
on March 19, 2025. Doc. 1.
II. Applicable Law
A. 	Disability Determination Process
An individual is considered disabled if he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
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disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1) At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”4 If the claimant is engaged in substantial gainful
activity, he is not disabled regardless of his medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or
mental impairment(s). 	If the claimant does not have an impairment(s) or
combination of impairments that is severe and meets the duration requirement,
he is not disabled.
(3) At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of the
regulations and meets the duration requirement. If so, a claimant is presumed
disabled.
(4) If, however, the claimant’s impairments do not meet or equal in severity
one of the listings described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform his “past relevant
work.” Answering this question involves three phases. Winfrey v. Chater, 92
F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant
medical and other evidence and determines what is “the most [claimant] can
still 	do 	despite 	[his 	physical 	and 	mental] 	limitations.” 	20 	C.F.R. 	§
404.1545(a)(1). This is called the claimant’s residual functional capacity
(“RFC”). Id. §§ 404.1545(a)(3). Second, the ALJ determines the physical and
mental demands of claimant’s past work. Third, the ALJ determines whether,
given claimant’s RFC, the claimant is capable of meeting those demands. 	A
claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past relevant work, the
Commissioner, at step five, must show that the claimant is able to perform other
work in the national economy, considering the claimant’s RFC, age, education,
and work experience. If the Commissioner is unable to make that showing, the
claimant is deemed disabled. If, however, the Commissioner is able to make the
required showing, the claimant is deemed not disabled.
4 Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a). “Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.” Id. “Gainful work activity is work activity that you do for
pay or profit.” 20 C.F.R. §§ 404.1572(b).
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See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); Fischer-Ross v. Barnhart, 431
F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10 th Cir. 2005). The
claimant has the initial burden of establishing a disability in the first four steps of this analysis.
Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n.5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show that the claimant is capable of
performing work in the national economy. Id. A finding that the claimant is disabled or not
disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v.
Sec’y of Health & Human Serv., 933 F.2d 799, 801 (10 th Cir. 1991).
B. 	Standard of Review
The Court reviews the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10 th Cir.
2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10 th Cir. 2004). A decision is based on
substantial evidence where it is supported by “relevant evidence [that] a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not
based on substantial evidence if it is overwhelmed by other evidence in the record[,]” Langley,
373 F.3d at 1118, or if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371,
1374 (10 th Cir. 1992). Therefore, although an ALJ is not required to discuss every piece of
evidence, “the record must demonstrate that the ALJ considered all of the evidence,” and “the
[ALJ’s] reasons for finding a claimant not disabled” must be “articulated with sufficient
particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10 th Cir. 1996). Further, the decision
must “provide this court with a sufficient basis to determine that appropriate legal principles
have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10 th Cir. 2005). In undertaking
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its review, the Court may not “reweigh the evidence” or substitute its judgment for that of the
agency. 	Langley, 373 F.3d at 1118.
III. Analysis
The ALJ determined that Mr. Lucero met the insured status requirements of the Social
Security Act through December 31, 2024, and that he had not engaged in substantial gainful
activity since his alleged onset date. Tr. 1968. She found that Mr. Lucero had severe
impairments of vestibular system disorder, migraine headaches, lumbosacral spondylosis, major
depression, panic disorder, chronic stress disorder, generalized anxiety disorder, and insomnia
disorder. Id. The ALJ also found that Mr. Lucero had nonsevere impairments of
hyperlipidemia, rectal hemorrhage, prediabetes, thoracic and cervical spine disorder, and gout.
Tr. 1968-69. The ALJ determined that Mr. Lucero’s impairments did not meet or equal in
severity any of the listings described in the governing regulations, 20 CFR Part 404, Subpart P,
Appendix 1. Tr. 1969-1972. Accordingly, the ALJ proceeded to step four and found that
Mr. Lucero had the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except for the following limitations:
[H]e can never climb ladders, ropes, or scaffolds; he can frequently climb ramps
and stairs, kneel, crouch, crawl, and stoop; he can occasionally balance, as defined
by the Selected Characteristics of Occupations (SCO); he can never work in the
presence of hazardous machinery with fast moving parts, at unprotected heights, or
be required to operate a motor vehicle as part of the job duties. He can never work
in the presence of unprotected bodies of water; he can perform jobs that do not
contain flashing lights; he can work in an environment with a moderate noise level,
as defined in the SCO; he can never work in the presence of concentrated exposure
to extreme heat or vibration; he can understand, remember, and maintain attention
and concentration to carry out simple instructions in two hour increments with
normal breaks in the workday; he can have occasional interaction with the general
public, 	frequent 	interaction 	with 	coworkers, 	and 	frequent 	interaction 	with
supervisors. He can use judgment to make simple work-related decisions; he can
deal with occasional changes in a routine work setting.
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Tr. 1972. The ALJ determined that Mr. Lucero had no past relevant work because he had not
performed any work within five years of the date of the decision. Tr. 1983. The ALJ determined
that considering Mr. Lucero’s age, education, work experience, and residual functional capacity,
that there are jobs that exist in significant numbers in the national economy that Mr. Lucero can
perform.5 Tr. 1983-1984. The ALJ determined, therefore, that Mr. Lucero was not disabled. Id.
In support of his Motion, Mr. Lucero argues that the ALJ committed the following
harmful and reversible errors: (1) the ALJ improperly relied on the inconsistent opinion of the
agency’s non-examining consultant as substantial evidence; (2) the ALJ improperly assessed the
opinions of Mr. Lucero’s treating providers; and (3) the ALJ’s RFC is not based on substantial
evidence because she improperly discounted Mr. Lucero’s subjective allegations of mental health
symptoms. Doc. 13 at 5-27.
For the reasons discussed below, the Court finds that the ALJ, having found Jill
Blacharsh, M.D.’s opinion persuasive, erred in relying on Dr. Blacharsh’s opinion as substantial
evidence in assessing Mr. Lucero’s RFC when Dr. Blacharsh’s Section III narrative failed to
adequately encapsulate her Section I limitations. This case, therefore, requires remand.
A. 	Dr. Blacharsh’s Section III Narrative Fails To Describe the Effects of
the 	Section 	I 	Moderate 	Limitations 	and 	Cannot 	Properly 	Be
Considered Part of the Substantial Evidence Supporting the ALJ’s
RFC.
On January 31, 2021, nonexamining State agency psychiatric consultant Jill Blacharsh,
M.D., reviewed the medical evidence record at reconsideration of claimant’s application. Tr. 88-
89. Dr. Blacharsh prepared a Psychiatric Review Technique and rated the degree of
5 The VE expert identified representative occupations of Cleaner Housekeeping (DOT code 323.687-014, light
exertion, unskilled, SVP 2, 177,000 jobs nationally); Material Distributor (DOT code 230.687-101, light exertion,
unskilled, SVP 2, 20,000 jobs nationally); and Assembler (DOT code 706.684-022, light exertion unskilled SVP 2,
16,000 jobs nationally). Tr. 1984.
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Mr. Lucero’s mental impairments in the area of understanding, remembering or applying
information as none; in the area of interacting with others as moderate; in the area of maintaining
concentration, persistence and pace as moderate; and in the area of adaptation or managing
oneself as moderate. Id.
Dr. Blacharsh also prepared a Mental Residual Functional Capacity Assessment
(“MRFCA”) in which she found in Section I that Mr. Lucero was moderately limited in his
ability to (1) understand and remember detailed instructions; (2) carry out detailed instructions;
(3) maintain attention and concentration for extended periods; (4) perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances; (5) sustain
an ordinary routine without special supervision; (6) complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods; (7) interact appropriately with the
general public; (8) accept instructions and respond appropriately to criticism from supervisors;
(9) get along with coworkers or peers without distracting them or exhibiting behavioral
extremes; (10) maintain socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness; (11) respond appropriately to changes in the work setting; and
(12) travel in unfamiliar places or use public transportation. Tr. 93-94.
In Section III, Dr. Blacharsh assessed that
The claimant can understand, remember and carry out simple instructions, make
simple decisions, attend and concentrate for two hours at a time, interact adequately
with co-workers and supervisors, and respond appropriately to changes in routine
work setting.
Id.6
6 Unskilled work generally requires: (1) “[u]nderstanding, remembering, and carrying out simple instructions”;
(2) “[m]aking judgments that are commensurate with the functions of unskilled work—i.e., simple work-related
decisions”; (3) “[r]esponding appropriately to supervision, co-workers and usual work situations”; and (4) “[d]ealing
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The ALJ found Dr. Blacharsh’s assessment persuasive. Tr. 1979. The ALJ explained
that “[i]t is supported by summary of records from multiple providers documenting generally
intact memory and appropriate/normal mood, affect, judgment, behavior, attention, other than
psych records noting some impaired attention and concentration span and circumstantial thought
process.” Tr. 1979. The ALJ added that:
I note that the Disability Determination Services mental residual functional
capacity worksheets include limitations associated with sustained concentration
and persistence including a rating of “moderately limited” with respect to at least
some of the following: the ability to carry out detailed instructions, the ability to
maintain attention and concentration for extended periods, perform activities within
a 	schedule, 	maintain 	regular 	attendance, 	and 	be 	punctual 	with 	customary
tolerances, ability to sustain an ordinary routine without special supervision, and
ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. As noted in the introduction to the
worksheet, the questions are not functional limitations, but rather assist the medical
consultants in assessing the individual’s ability to perform sustained work
activities. I considered the prior administrative medical findings as described in the
narrative assessments, which reflect the claimant’s ability to perform sustained
work activities despite limitations in understanding and memory, sustained
concentration and persistence, social interactions, and adaptation.
Id.
Mr. Lucero argues that Dr. Blacharsh’s Section III narrative fails to adequately
encapsulate all of the Section I moderate limitations she assessed and that the ALJ, therefore,
improperly relied on Dr. Blacharsh’s opinion as substantial evidence in forming the RFC.
Doc. 13 at 5-10. Mr. Lucero argues that Dr. Blacharsh’s Section III narrative, and in turn the
ALJ’s RFC, fail to account for limitations in his ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerance; to complete a normal
workday and workweek without interruptions from psychologically based symptoms and
with changes in a routine work setting.” Vigil v. Colvin, 805 F.3d 1199, 1204 (10 th Cir. 2015) (citing SSR 96–9p, 1996
WL 374185, at *9 (July 2, 1996)); see also POMS DI25020.010.A.3.
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performing at a consistent pace without an unreasonable number and length of rest periods; and
to maintain socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness. Id.
Mr. Lucero argues that while the ALJ attempts to obviate her responsibility of review by
claiming that the moderate limitations assessed in Section I are merely meant to assist the
medical consultant and thereby she was only required to, and admittedly only did, consider the
narrative assessment in Section III, the Tenth Circuit has long held that the ALJ must consider
the entirety of the nonexaminer’s opinion and cannot rely on an MRFCA as substantial evidence
where a consultant’s Section III narrative fails to describe the effect that each of the Section I
moderate limitations would have on the claimant’s ability to do work-related mental activities.
Id. (citing Carver v. Colvin, 600 F. App’x 616, 619 (10 th Cir. 2015)).
In Response, the Commissioner does not directly address Mr. Lucero’s argument
regarding the inconsistencies between Dr. Blacharsh’s Section I findings and Section III
narrative and instead broadly asserts that the ALJ’s RFC is supported by substantial evidence.
Doc. 17 at 4-12. The Commissioner asserts that the nonexamining State agency
psychological/psychiatric consultants concluded at both the initial and reconsideration stages that
Mr. Lucero could perform “simple work with limited social interaction” and that the ALJ found
both State agency opinions “largely persuasive.” 7 Id. at 5. The Commissioner further asserts
7 On November 12, 2019, nonexamining State agency psychological consultant Scott R. Walker, M.D., reviewed the
medical evidence record on the initial stage of consideration. Tr. 72-74, 79-81. Dr. Walker prepared a PRT and an
MRFCA. Id. Dr. Walker’s findings in Section I are similar to those found by Dr. Blacharsh. Compare Tr. 79-81 and
92-94. In Section III, Dr. Walker assessed that
The claimant retains the capacity to understand, remember, and carry out simple instructions, attend
and concentrate sufficient to complete a routine work day without significant interruptions from
psychologically-based symptoms, exercise reasonable judgment, interact appropriately with
coworkers, supervisors and the general public on a superficial basis.
Tr. 81. The ALJ found Dr. Walker’s analysis
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that the ALJ accurately explained that the moderate limitations found in Section I “are not
functional limitations, but rather assist the medical consultants in assessing the individual’s
abilities to perform sustained work activities.” Id. at 6. The Commissioner asserts that here,
both “Dr. Walker and Dr. Blacharsh reasonably concluded that despite some moderate
limitations – defined as a fair ability to function – Plaintiff retained the capability to perform
unskilled work.” Id. (citing 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(F)(2)(c)). The
Commissioner then cites Fannin v. Comm’r, SSA, 857 F. App’x 445, 447-48 (10 th Cir. 2021)
(citing Smith v. Colvin, 821 F.3d 1264, 1269 n.2 (10 th Cir. 2016)), to argue that the question
before the Court should be whether the ALJ’s findings are consistent with Dr. Blacharsh’s
Section III narrative regarding residual functional capacity and not whether the moderate
limitations she found in Section I are consistent with Section III. Id.
In Reply, Mr. Lucero argues that the Commissioner’s lack of a direct response to the
legal error he raises ignores this Court’s adherence to Carver and results in a concession
constituting consent to grant his Motion pursuant to local rules. Doc. 20 at 2-5.
Mr. Lucero next argues that the Commissioner’s assertion that a moderate limitation is
defined as a “fair ability to function” is misplaced because that definition addresses how the
Agency uses paragraph B criteria at steps two and three of the sequential evaluation process
when rating the severity of a mental impairment and is inapplicable to defining an assessed
persuasive except that “reasonably” and “superficial” are not vocationally relevant terms and thus,
they do not adequately articulate the limitation for use in a residual functional capacity assessment.
The medical findings of Dr. Walker are persuasive only insofar as they indicate that there are indeed
limitations in the areas of understanding, remembering, and applying information; interacting with
others; concentrating, persisting, and maintaining pace; and adopting and managing oneself.
Accordingly, in the residual functional capacity assessment above, I have used more specific,
vocationally defined, and policy compliant language to express the limitations corresponding to the
“paragraph B” criteria, arising from the claimant’s mental impairments.
Tr. 1977 (emphasis added).
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functional limitation related to a claimant’s ability to do work-related mental activities. Id. In
support, Mr. Lucero cites the Program Operations Manual System (“POMS”) which instructs
that finding a claimant “moderately limited” indicates that an individual’s capacity to perform
the activity is impaired. Id. (citing POMS DI 24510.063(B)(2)). Mr. Lucero also argues that
well-established Tenth Circuit case law instructs that a “moderate impairment” is not the same as
no impairment at all. Id. (citing Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)).
Mr. Lucero next argues that Fannin is not persuasive because the issue there was whether
the ALJ’s hypothetical propounded to the VE that encapsulated the nonexamining consultant’s
Section III conclusions was error. Id. (citing Fannin, 857 F. App’x at 447-48). Mr. Lucero notes
that the Court held that it was not error for the ALJ to relay the narrative mental RFC found by
the agency consultant, so long as that narrative mental RFC is consistent with the limitations
found on the worksheet portion. Id. (citing Romero v. Kijakazi, 2022 WL 1553295, at *10
(D.N.M. May 17, 2022)). As such, Mr. Lucero argues that Fannin is inapposite. Id.
Finally, Mr. Lucero argues that a limitation in Section III to unskilled work cannot
account for all moderate limitations found in Section I and in particular does not account for a
claimant’s moderate limitation in the ability to maintain regular attendance and be punctual
within customary tolerances or to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods. Id. (collecting cases from this District in
which magistrate judges have rejected the argument that a limitation to simple, routine work
accounts for a moderate limitation in the ability to complete a normal workday and workweek).
The Tenth Circuit has specifically addressed the ALJ’s responsibility in evaluating a
nonexamining State agency psychological/psychiatric consultant’s MRFCA in light of the
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instructions printed on the forms and certain sections of the POMS that describe the separate
functions of Sections I and III. Tenth Circuit case law instructs that an ALJ may not “turn a
blind eye to moderate Section I limitations” and that
[i]f a consultant’s Section III narrative fails to describe the effect that each of the
Section I moderate limitations would have on the claimant’s ability, or if it
contradicts limitations marked in Section I, the MRFCA cannot properly be
considered part of the substantial evidence supporting an ALJ’s RFC finding.
Carver, 600 F. App’x at 619. 8 Tenth Circuit case law further instructs that there is no reversible
error in evaluating opinion evidence or assessing a claimant’s RFC when an ALJ properly
accounts for the effects of the limitations enumerated in Section I of the MRFCA. See Nelson v.
Colvin, 655 F. App’x 626, 629 (10 th Cir. 2016) (finding no reversible error regarding the ALJ’s
mental RFC assessment because the ALJ effectively accounted for all the limitations indicated in
Section I of the MRFCA) (emphasis in original);9 Lee v. Colvin, 631 F. App’x 538, 541 (10 th Cir.
8 In Section I, the State agency consultant found that the claimant had moderate limitations in the ability to
(1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) interact appropriately with
the general public; and (4) accept instructions and respond appropriately to criticism from supervisors. Carver v.
Colvin, 600 F. App’x 616, 618 (10 th Cir. 2015). In Section III, the State agency consultant assessed that the claimant
could “perform simple tasks with routine supervision, relate to supervisors and peers on a superficial work basis, relate
superficially to the general public on a limited basis, and adapt to simple work situation.” Id. The claimant argued
that the State agency consultant’s Section III assessment failed to account for the Section I moderate limitation in
accepting instructions and responding appropriately to criticism from supervisors. Id. at 618-19. The Court disagreed
and held that the Section III assessment that claimant could relate to supervisors and peers on a superficial work basis
adequately encapsulated the Section I moderate limitation in claimant’s ability to accept instructions and respond
appropriately to criticism from supervisors. Id. at 619. The Court further held that the ALJ’s RFC sufficiently
captured the essence of the State agency consultant’s Section III assessment by limiting claimant to simple work and
stating that claimant could “interact with co-workers and supervisors, under routine supervision.” Id. at 620.
9 In Section I, the State agency consultant found the claimant had moderate limitations in the ability to maintain
attention and concentration for extended periods, and marked limitations in the ability to understand and remember
detailed instructions, carry out detailed instructions, and interact appropriately with the public. Nelson, 655 F. App’x
626, 628 (10 th Cir. 2016.) In Section III, the State agency consultant assessed that “claimant is capable of carrying
out simple instructions with routine supervision. Claimant is capable of interacting appropriately with supervisors
and coworkers on a superficial basis but not with the general public. Claimant can adapt to a work situation.” Id. at
629. The Court noted that the ALJ, in turn and without error, incorporated the Section III findings into the RFC. Id.
The Court further noted that “[m]ore to the point, by limiting [claimant] to unskilled work, the ALJ effectively
accounted for all the limitations noted in Section I[.]” Id. (emphasis in original). The Court explained that “[e]ven
though [the State agency consultant] noted marked limitations in [claimant’s] ability to remember detailed
instructions, carry out detailed instructions, and interact appropriately with the public, unskilled work does not require
these abilities, nor does it require the ability to maintain attention and concentration for extended periods[.]” Id.
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2015) (finding no reversible error regarding the ALJ’s RFC assessment because the ALJ did not
ignore the Section I limitations and the RFC assessment reflected the moderate limitations
identified in Section I of the MRFCA); 10 Fulton v. Colvin, 631 F. App’x 498, 502 (10 th Cir.
2015) (finding that the ALJ did not err in evaluating opinion evidence where he discussed only
certain Section III findings because the ALJ acknowledged the distinction between Section I and
Section III of the MRFCA and the Court found no contradiction between the two sections).11
In Smith v. Colvin, 821 F.3d 1264, 1269 (10 th Cir. 2016), the Tenth Circuit explained that
moderate limitations found in Section I of the MRFCA serve only as an aid to the consultant’s
assessment and stated in a footnote that the Court should compare the ALJ’s RFC findings to the
consultant’s narrative opinion and not the Section I notations of moderate limitations. Id. at
1269 n.2. In Silva v. Colvin, 203 F. Supp. 3d 1153, 1158-66 (D.N.M. 2016), however, the
Honorable Stephan M. Vidmar thoroughly explained that the POMS, regulations, and case law
require the ALJ to address all of a doctor’s findings, not just those in Section III, and concluded
that the footnote language in Smith suggesting otherwise is dictum. Id. at 1163. Judge Vidmar
10 In Section I, the State agency consultant found the claimant had moderate limitations in the ability to (1) maintain
attention and concentration for extended periods; (2) accept instructions and respond appropriately to criticism from
supervisors; and (3) get along with coworkers or peers without distracting them or exhibiting behavioral extremes.”
Lee v. Colvin, 631 F. App’x 538, 542 (10 th Cir. 2015). In Section III, the State agency consultant assessed that claimant
could perform simple tasks, work with routine supervision, relate to supervisors on a superficial basis, and relate to
peers on a superficial basis. Id. The ALJ adopted the Section III assessment. Id. at 541. The Court held that the
Section III narrative and the ALJ’s RFC “explained, accounted for, and delimited each of the moderate limitations
expressed in the Section I of the MRFCA,” and there was no error. Id.
11 In Section I, the State agency consultant found the claimant had moderate limitations in the ability to (1) work in
coordination with or proximity to others without being distracted by them; and (2) respond appropriately to changes
in the work setting. Fulton v. Colvin, 631 F. App’x 498, 501-02 (10 th Cir. 2015). The State agency consultant found
the claimant had marked limitations in the ability to interact appropriately with the general public. Id. In Section III,
the State agency consultant assessed that the claimant was able to perform simple and some complex tasks under
ordinary supervision, able to interact with co-workers and supervisors for incidental work purposes but should avoid
public contact, and able to adapt to some work change. Id. The claimant argued that the ALJ erred by failing to
account for certain of the State agency consultant’s Section I findings. Id. The Court held that the ALJ properly
looked to the Section III narrative as the State agency consultant’s opinion regarding mental RFC because the Section
III assessment did not contradict the effects of the Section I limitations. Id.
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further explained that the Court read Smith as addressing moderate limitations that may be
adequately accounted for in an ALJ's RFC limitation to unskilled (or simple) work and is less
about Section I versus Section III findings. Silva, 203 F. Supp. 3d at 1163, fn.4.
Applying the Tenth Circuit’s and this District’s guidance here, the Court finds that the
ALJ, by her own admission (Tr. 1979), only considered Dr. Blacharsh’s Section III narrative
assessment and in doing so failed to properly consider whether it accounted for the effects of all
the limitations Dr. Blacharsh enumerated in Section I. This is error. Importantly,
Dr. Blacharsh’s Section III narrative fails to account for certain of the moderate limitations she
found in Section I related to Mr. Lucero’s ability to sustain concentration and persistence which
are usually strict and critical for performing unskilled work. See POMS 25020.010(B)(3)(e)(i)
(explaining that the ability to maintain regular attendance and be punctual within customary
tolerances and the ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and perform at a consistent pace without an unreasonable
number and length of rest periods are “usually strict” and “critical for performing unskilled
work.”). Thus, because Dr. Blacharsh’s Section III narrative fails to describe the effect of these
limitations, the MRFCA cannot properly be considered part of the substantial evidence
supporting the ALJ’s RFC finding. Carver, 600 F. App’x at 619. Yet the ALJ did so here. In
fact, Dr. Blacharsh’s opinion is the only medical opinion evidence addressing Mr. Lucero’s
ability to do work-related mental activities that the ALJ found persuasive without any exceptions
or qualifications.12
12 As previous noted in fn. 7, supra, the ALJ found Dr. Walker’s opinion persuasive but with certain exceptions and
qualifications. Tr. 1977. The Administrative Record contains four other medical opinions related to Mr. Lucero’s
ability to do work-related mental activities, all of which the ALJ either found not persuasive at all or not persuasive
as to any marked limitations or assessed limitations related to Mr. Lucero’s ability to maintain attendance and/or stay
on task. See medical opinion evidence of (1) treating provider Richard Moharter, LPCC (Tr. 1569-1570, 2388-89);
(2) treating provider Ashley Carro, FNP, PMHNP (Tr. 2391-92); and (3) consultant examiner John R. Vigil, MD
FASAM (Tr. 2427).
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Further, while limiting a claimant to unskilled work may account for certain moderate
limitations, “[t]here may be cases in which an ALJ’s limitation to unskilled work does not
adequately address a claimant’s mental limitations.” Vigil v. Colvin, 805 F.3d 1199, 1204 (10 th
Cir. 2025)13 (citing Chapo v. Astrue, 682 F.3d 1285, 1290, n.3 (10 th Cir. 2012) (explaining that
unskilled work accounts for skill transfer and not impairment of mental functions and a
restriction to “simple work” is a vague catch-all term which is insufficient to adequately account
for mental limitations)); see also Groberg v. Astrue, 505 F. App’x 763, 770 (10 th Cir. 2012)
(finding that “[a] limitation to ‘simple work’ is ‘unskilled jobs’ is generally insufficient to
address a claimant’s mental impairments.”). Given the moderate limitations at issue here, the
Court finds that a limitation to unskilled work does not adequately address Mr. Lucero’s ability
to do work-related mental activities. “[A] moderate impairment is not the same as no
impairment at all.” Haga, 482 F.3d at 1208. Thus, “moderate limitations must be accounted for
in the RFC finding.” Jaramillo v. Colvin, 576 F. App’x 8709, 876 (10 th Cir. 2014).
The Court is also not persuaded by the Commissioner’s indirect and perfunctory response
to Mr. Lucero’s argument. For instance, the Commissioner asserts that the ALJ found both
nonexamining State agency opinions “largely persuasive.” This, however, is inaccurate. The
ALJ found Dr. Walker’s analysis “persuasive except that . . .” and his medical findings
“persuasive only insofar as . . . .” Tr. 1977, see fn. 7, supra. The ALJ, however, found
Dr. Blacharsh’s analysis persuasive without any exceptions or qualifications. Tr. 1979. The
Commissioner asserts that the ALJ explains that Section I findings are meant to assist a medical
13 In Vigil, the Tenth Circuit held that the ALJ adequately accounted for the claimant’s moderate limitation his ability
to perform complex tasks by “limiting him to unskilled work activity.” Vigil, 805 F.3d at 1204. The Court explained
that because unskilled work only requires the ability to understand, remember, and carry out simple instructions and
make simple work-related decisions, limiting the claimant to unskilled work adequately addressed the claimant’s
limitation in his ability to perform complex tasks. Id.
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consultant in assessing an individual’s abilities to perform sustained work activities and that case
law suggests the ALJ is not required to discuss or consider the Section I limitations. This
assertion, however, while accurate in part, improperly omits and fails to acknowledge that an
ALJ may only disregard limitations found in Section I of the MRFCA when the narrative portion
“adequately encapsulate[s]” them. Carver, 600 F. App’x at 619. Finally, the Commissioner
asserts a definition of moderate limitation, i.e., a fair ability to function, which is not applicable
in the context of assessing a claimant’s RFC. See 20 C.F.R. Part 404, Subpart P, App. 1,
§ 12.00(F)(2)(c) – How we use the paragraph B criteria to evaluate your mental disorder). All
told, the Court finds the Commissioner’s Response to Mr. Lucero’s legal argument lacking.
In sum, the ALJ erred by failing to consider whether Dr. Blacharsh’s Section III narrative
adequately encapsulated certain of the moderate limitations she found in Section I of
Dr. Blacharsh’s MRFCA. Here, Dr. Blasharsh’s Section III narrative fails to incorporate
moderate limitations in Mr. Lucero’s ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances, and the moderate limitation in
his ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods. Thus, because Dr. Blacharsh’s Section III narrative fails to
describe the effect of these limitations, the MRFCA cannot properly be considered part of the
substantial evidence supporting an ALJ’s RFC assessment. The Court remands so that the ALJ
can remedy these errors.
B. 	Remaining Claims
Mr. Lucero advances two additional arguments in support of his Motion to Reverse or
Remand. However, because the Court concludes that remand is required as set forth above, it
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will not address the remaining claim of error. See Wilson v. Barnhart, 350 F.3d 1297, 1299 (10 th
Cir. 2003) (explaining that the reviewing court does not reach issues that may be affected on
remand).
IV. Conclusion
For the reasons stated above, Mr. Lucero’s Motion for Remand (Doc. 13) is well-taken
and is GRANTED.
_____________________________________
JOHN F. ROBBENHAAR
United States Magistrate Judge
Presiding by Consent
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