Thiel v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:24-cv-02474-TPO
R.T.,1
Plaintiff,
v.
FRANK BISIGNANO,2 Commissioner,
Social Security Administration,
Defendant.
ORDER
Timothy P. O’Hara, United States Magistrate Judge.
Plaintiff applied for Title XVI supplemental security income under 42 U.S.C. §§ 1381, et
seq., of the Social Security Act (the “Act”) on July 15, 2022. ECF 9 at 14. An Administrative Law
Judge (“ALJ”) rendered a decision finding Plaintiff not disabled under § 1614(a)(3)(A) of the Act.
Id. at 25. The Appeals Council then denied Plaintiff’s Request for Review, id. at 5, thereby leaving
the ALJ’s decision final and subject to judicial review. See 20 C.F.R. § 422.210(a). Jurisdiction is
proper under 42 U.S.C. § 405(g). The Parties have consented to this Court conducting all
proceedings, up to and including the entry of a final judgment. See ECF 10. The Court has carefully
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.”
2 Frank Bisignano is the current acting Commissioner of Social Security and is automatically
substituted as a party pursuant to Fed. R. Civ. P. 25(d). See 42 U.S.C. § 405(g) (an action survives
regardless of any change in the person occupying the office of the Commissioner of Social
Security).
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considered the Parties’ briefs, the Administrative Record,3 and the applicable law. The Parties have
not requested oral argument, and the Court finds it would not materially assist in its determination.
For the reasons stated below, the Court AFFIRMS the Commissioner’s decision.
BACKGROUND
On July 15, 2022, Plaintiff filed an application for supplemental security income, alleging
disability since July 3, 2016. Administrative Record (“AR”) at 10. Plaintiff’s claim was initially
denied on January 4, 2023, and again upon reconsideration on July 19, 2023. Id. Plaintiff, through
counsel, filed a request for a hearing before an ALJ. Id.
On December 6, 2023, Plaintiff and her attorney appeared for a hearing before ALJ Kurt
Schuman. Id. at 36 (Hearing transcript). Plaintiff was 49 years old at the time of the hearing. Id. at
41. Plaintiff completed high school4 but does not have a college education or any vocational
training. Id. at 41-42. Plaintiff was previously married but is now divorced. Since her divorce,
Plaintiff has lived alone for approximately two years. Id. at 43. Plaintiff has a driver’s license and
drives “occasionally.” Id. at 47.
Plaintiff testified that she had not worked since July 3, 2016, primarily due to “major
depressive 	disorder, 	anxiety, 	panic 	attacks” 	and 	Attention-Deficit/Hyperactivity 	Disorder
(“ADHD”) which “affect[] several areas, including [her] ability to focus, engage properly
throughout the day” and her “ability to stay consistent and show up for work.” Id. at 43-44.
According to Plaintiff, her conditions also “cause somatic symptoms, like upset stomach,
3 When citing to the Social Security Administrative Record (“AR”) at ECF 9, the Court uses the
page number found in the bottom right-hand corner of the page. For all other documents, the Court
cites to the document and page number generated by the Electronic Court Filing (“ECF”) system.
4 Plaintiff testified that while in school, she was never enrolled in special education. See ECF 9 at
54.
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headaches, [and] chronic fatigue.” Id. These conditions also impair her concentration and cause
brain fog. Id. Plaintiff attends weekly therapy sessions. Id. at 47.
Plaintiff had past relevant work experience5 as a packer at a big box store, a job she held
for 16 years. Id. at 44-45. Due to her declining mental health, though, Plaintiff’s psychiatrist at the
time placed her on “intermittent FMLA leave” during her last three years of employment. Id. at
44. She described her condition during this period as “up and down.” Id. at 45. In the end, Plaintiff
struggled to meet quotas and was fired “due to a technicality.” Id. at 45.
The ALJ asked Plaintiff about her functioning over the last two years. ECF 9 at 55. She
testified that, generally, she has been functioning less, i.e., “getting a little worse,” as it relates to
“remembering things [and] doing tasks.” Id. Once again, Plaintiff described having “good days”
where she is “able to do some stuff,” along with “some bad days.” Id. Plaintiff referenced leaving
some tasks unfinished, including doing the dishes. Id. at 56. She described being able to clean her
home but that it is still messy. Id. She noted that she has a “strong support system.” Id. at 57.
Without specificity, Plaintiff noted that if she were to work, there “would be some days that [she
couldn’t] make it in.” Id. at 58.
The ALJ posed two hypothetical situations to the vocational expert that appeared at the
hearing. Id. at 61-64. In the first hypothetical, the ALJ described an individual of Plaintiff’s age,
education, and work experience who is limited to the medium level of exertion as defined by the
regulations, the ALJ asked the vocational expert whether such an individual would be able to
perform Plaintiff’s past relevant work:
5 After being fired from her job as a hand packager, Plaintiff worked part-time as a grocery store
deli clerk for approximately six months before she was terminated due to attendance issues.
Plaintiff’s employment as a deli clerk did not qualify as “substantial gainful activity.” See AR at
46; 59-60.
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This person must never be required to climb ladders, ropes, or scaffolds. She is able
to occasionally balance. . . . She must avoid all use of moving and/or dangerous
machinery and all exposure to unprotected heights. She is able to tolerate
concentrated exposure to excessive noise, with excessive noise defined as at the
street level. This individual is further limited to work that consists of only simple,
routine, 	repetitive 	tasks. 	She 	is 	able 	to 	maintain 	sufficient 	attention 	and
concentration for extended periods of two-hour segments during the normal
workday with normal breaks in work that consists of no more than simple, routine,
repetitive tasks. She’s further limited to work that requires no more than occasional
interaction with the public and coworkers and to work that requires no more than
occasional supervision. This is defined as requiring a supervisor’s critical checking
of her work.
Id. at 61. The vocational expert testified, “it appears past work does survive this particular
hypothetical.” Id. The ALJ then asked the vocational expert if, assuming the person is unable to
perform past work, would there be any unskilled occupations that such individual could perform.
Id. at 61-62. The vocational expert identified three such occupations: buffet attendant, car porter,
and cleaner II. Id. at 62.
The ALJ then posed a second hypothetical:
[A]ssume the same hypothetical as that of hypothetical #1 but add that due to a
combination of medical conditions and mental impairments, this individual will
require, on average, two additional breaks each workday of a duration between 15
and 30 minutes each in addition[] to regularly scheduled breaks and will be off task
for more than 10% of normally scheduled workdays. . . [A]re there any unskilled
occupations this individual could perform?
Id. at 63. To this second scenario, the vocational expert opined, “either one of those limitations
would generally be inconsistent with all competitive employment.” Id. The vocational expert then
testified that 8-10% of the work shift is expected to be “off-task,” with termination to be expected
for employees that exceed that amount of “off-task” time during the work day. Id. at 64.
On cross-examination, Plaintiff’s attorney asked the vocational expert whether (1) being
off task for 15% of the workday and/or (2) consistently performing 15% behind other employees
in the same role would become work preclusive to an individual’s ability to perform simple,
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repetitive tasks. Id. at 65-66. For the former, the vocational expert responded, “that would certainly
not be tolerated.” Id. at 65. In the second scenario, the vocational expert testified that “[f]ifteen
percent would probably be . . . about where the break-off point would be.” Id. at 66. He further
opined, “15% would be noticeable after just several months.” Id. However, if the employee spent
approximately 10% “off-task,” the expert testified that an employee “could probably coast for a
year or so,” i.e., could avoid termination for a significant period. Id. at 66.
Before the hearing was adjourned, the vocational expert asked the ALJ if he would like the
vocational expert to provide any basis for the numbers, opinions, and testimony provided at the
hearing. Id. at p. 67. The ALJ responded, “[n]o, I think we’re okay.” Id.
THE FIVE-STEP PROCESS FOR DETERMINING DISABILITY
A claimant is determined to be under a “disability,” as defined in the Act, “only if [her]
physical or mental impairment or impairments are of such severity that [s]he is not only unable to
do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the national economy…” §
423(d)(2)(A); see also § 1382c(a)(3)(B). There also is a “duration requirement” for the disabling
impairment: it must “ha[ve] lasted or can be expected to last for a continuous period of not less
than 12 months.” § 423(d)(1)(A); see also § 1382c(a)(3)(A); Bowen v. Yuckert, 482 U.S. 137, 140
(1987).
An ALJ follows a five-step sequential evaluation process to determine whether a claimant
is disabled. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citing Williams v. Bowen,
844 F.2d 748, 750-52 (10th Cir. 1988)). The five steps to the analysis are:
1. 	Whether the claimant has engaged in any “substantial gainful activity.” 20
C.F.R. 	§§ 	404.1520(a)(4)(i); 	416.920(a)(4)(i). 	If 	the 	claimant 	has, 	the
Commissioner will find that she is not disabled. Id.
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2. 	Whether the claimant has “a severe medically determinable physical or mental
impairment that meets the duration requirement” or “a combination of
impairments 	that 	[are] 	severe 	and 	meet 	the 	duration 	requirement.” 	§§
404.1520(a)(4)(ii); 	416.920(a)(4)(ii). 	If 	the 	claimant 	does 	not, 	disability
benefits are denied. Id.
3. 	Whether the claimant has an impairment or a combination of impairments “that
meet or equal one of [the] listings in” Title 20, Chapter III, Part 404, Subpart P,
Appendix 1 of the Code of Federal Regulations, and “that meet the duration
requirement.” §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the claimant does,
4. 	Whether the claimant has the residual functional capacity to “still do [the
claimant’s] past relevant work.” §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv).
5. 	Whether, considering the claimant’s residual functional capacity and her “age,
education, and work experience,” the claimant can “make an adjustment to
other 	work,” 	§§ 	404.1520(a)(4)(v); 	416.920(a)(4)(v), 	that 	“exist[s] 	in
significant 	numbers 	in 	the 	national 	economy.” 	§§ 	404.1560(c)(1)-(2);
416.960(c)(1)-(2).
“The claimant bears the burden of proof through step four of the analysis.” Nielson v.
Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993); see also Williams, 844 F.2d at 751 n.2. If the ALJ
determines at Step Four that the claimant cannot perform her past relevant work, then the claimant
has established a prima facie case of disability. Nielson, 992 F.2d at 1120. The analysis then
proceeds to Step Five where the burden shifts to the ALJ to “show that a claimant can perform
work that exists in the national economy” based on their residual functioning capacity, age,
education, and work experience. Id. (citation omitted).
STANDARD OF REVIEW
In reviewing the Commissioner’s decision, the court is “limited to determining whether the
Commissioner applied the correct legal standards and whether the agency’s factual findings are
supported by substantial evidence.” Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir.
2014) (citing Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000)). Judicial review is thus limited
to these two inquiries. See Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); White v.
Barnart, 287 F.3d 903, 905 (10th Cir. 2001).
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The phrase “substantial evidence” is a term of art in administrative law that describes how
“an administrative record is to be judged by a reviewing court.” T-Mobile South, LLC v. City of
Roswell, 574 U.S. 293, 301 (2015) (citing United States v. Carlo Bianchi & Co., 373 U.S. 709,
715 (1963)). “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, 103 (2019) (citing Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). “[T]he threshold for such evidentiary sufficiency is not high.”
Id. Substantial evidence is “more than a mere scintilla” and “means only[] ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Id. (citations omitted);
see Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (“Substantial evidence requires more
than a scintilla but less than a preponderance.”).
The possibility of drawing two inconsistent conclusions from the evidence does not prevent
an administrative agency’s findings from being supported by substantial evidence. Zoltanski, 372
F.3d at 1200 (quoting U.S. Cellular Tel., LLC v. City of Broken Arrow, 340 F.3d 1122, 1133 (10th
Cir. 2003)). The court “may neither reweigh the evidence nor substitute [its] judgment for that of
the agency.” Knight, 756 F.3d at 1175 (quoting Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir.
2000)). Even so, this court must “meticulously examine the record as a whole, including anything
that may undercut or detract from the ALJ’s findings in order to determine if the substantiality test
has been met.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007)). Thus, the role of this court is to “determine whether the
findings of fact . . . are based upon substantial evidence, and inferences drawn therefrom.” Trujillo
v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970). A decision or finding is supported by
substantial evidence when it is “based upon the record taken as a whole.” Wall, 561 F.3d at 1052
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(quotation omitted). But substantial evidence is lacking when the finding is “overwhelmed by other
evidence in the record.” Id. (quotation omitted).
Notwithstanding, “if the ALJ failed to apply the correct legal test, there is a ground for
reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993) (citation omitted). The ALJ must provide “a sufficient basis to determine that
appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th
Cir. 2005) (quotation omitted). A legal error, “even if the agency’s findings are otherwise supported
by substantial evidence,” must be reversed. Parker v. Comm’r, SSA, 772 F. App’x 613, 617 (10th
Cir. 2019) (citing Byron v. Heckler, 752 F.2d 1232, 1234-35 (10th Cir. 1984); Jensen, 436 F.3d at
1165)) (unpublished).
ALJ’S FINDINGS AND DECISION
I. 	Steps One Through Three
The ALJ determined at step one that Plaintiff had not engaged in gainful activity since the
application date, July 15, 2022. ECF 9 at 12 (citing 29 C.F.R. § 4167.971 et seq.). At step two, the
ALJ found that Plaintiff has the following severe impairments under SSR 85-28: (1) bipolar I
disorder; (2) persistent depressive disorder with anxious distress; (3) generalized anxiety disorder;
(4) borderline personality disorder; (5) dependent personality disorder; (6) post-traumatic stress
disorder (PTSD); and (7) ADHD. Id. The ALJ also found that Plaintiff’s diabetes mellitus is a non-
severe impairment as defined in 20 C.F.R. § 404.1520(c) “due to the limited nature of the
complaints, the good response to treatment, or the lack of any evidence of any functional
limitations for any twelve-month period since the alleged onset date.” Id.
Proceeding to Step Three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
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impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR §§ 416.920(d), 416.925 and
416.926).” Id. The ALJ evaluated the criteria of listings 12.04 (Depressive, bipolar and related
disorders), 12.06 (Anxiety and obsessive-compulsive disorders), 12.08 (Personality and impulse-
control disorders), and 12.15 (Trauma- and stressor-related disorders) and made the following
findings about the severity of Plaintiff’s impairments:
In understanding, remembering, or applying information, the claimant has a
mild limitation. . .
In interacting with others, the claimant has a moderate limitation. . .
With regard to concentrating, persisting or maintaining pace, the claimant has
a moderate limitation. . .
As for adapting or managing oneself, the claimant has experienced a moderate
limitation.
Id. at 13-14 (emphasis added). Because Plaintiff did not meet the criteria for at least two “marked”
limitations or one “extreme” limitation, the ‘paragraph B’ criteria were not met. Id. at 14. Citing
that Plaintiff “was independent in her selfcare and drove,” the ALJ found the criteria in “paragraph
C” of listings 12.04, 12.06, 12.08, and 12.15 also were not met. Id.
II. 	Steps Four and Five
At Step Four, the ALJ considered Plaintiff’s subjective complaints from the hearing. ECF
9 at 15. He properly refused to defer to prior administrative medical findings or medical opinions,
including those from medical sources.6 Id. at 16. He then properly considered numerous medical
opinions and prior administrative medical findings. Id. at 16-20. After considering all of the
evidence of record, the ALJ determined that Plaintiff had the residual functional capacity (RFC)
to
6 Plaintiff’s prior application for Title II disability and disability insurance benefits was denied.
See ECF 9 at 72-90.
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perform medium work as defined in 20 C.F.R. § 416.967(c) except the claimant
must never be required to climb ladders, ropes, or scaffolds. She can occasionally
balance. She must avoid all use of moving and/or dangerous machinery, and must
avoid all exposure to unprotected heights. She is able to tolerate concentrated
exposure to excessive noise, defined as being noise at the street level. She is limited
to work that consists of no more than simple, routine, repetitive tasks. She is able
to maintain sufficient attention and concentration for extended periods of 2-hour
segments during a normal workday with normal breaks, but only in work that
consists of no more than simple, routine, repetitive tasks. She is limited to work
that requires no more than occasional interaction with the public and coworkers,
and to work that requires no more than occasional interaction with the public and
coworkers, and in work that requires no more than occasional supervision, which
is defined as requiring a supervisor’s critical checking of her work.
Id. at 15. Based on the RFC and the VE’s testimony, the ALJ found that Plaintiff could perform
her past work as a hand packager. Id. at 20. Alternatively, at Step Five, the ALJ determined that
Plaintiff could perform other jobs that exist in significant numbers in the national economy based
on her RFC, age, education, and work experience. Id.; 20 C.F.R. §§ 416.969; 416.969a.
ANALYSIS
Plaintiff raises the following issues for review: (1) the ALJ failed to comply with 20 C.F.R.
§ 416.920c when evaluating the medical opinions of Dr. Leidal and Dr. Fields; (2) the ALJ failed
to support the RFC with substantial evidence and disregarded Plaintiff’s reported symptoms; and
(3) the ALJ erred when he did not inquire about and resolve any conflict between the VE’s
testimony presented at the hearing and the Dictionary of Occupational Titles (DOT). ECF 13 at 3.
The Court finds all three of Plaintiff’s arguments to be without merit.
I. 	The ALJ’s Evaluation of Medical Opinions: 20 C.F.R. § 404.1520c(b)
For claims filed on or after March 27, 2017, the Social Security regulations require the ALJ
to articulate how persuasive he found “all of the medical opinions.” 20 C.F.R. § 404.1520c(b). The
regulation sets forth five factors for considering the persuasiveness medical opinions: (1)
supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5)
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“[o]ther factors . . . that tend to support or contradict a medical opinion.” Id. §§ 404.1520c(b);
416.920c(c). “The factors of supportability . . . and consistency . . . are the most important factors,”
and the ALJ must provide an explanation for how he considered these two factors in the evaluation.
Id. § 404.1520c(b)(2). The ALJ “may, but [is] not required to” explain how they considered the
remaining factors. Id. As a result, the Court focuses on the first two factors.
“‘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 v. Comm’r, SSA, No.
20-3180, 2021 WL 2794533, at *5-6 (10th Cir. July 6, 2021) (citing 20 C.F.R. § 404.1520c(c)(1);
id. § 416.920c(a)) (alterations in original). “The supportability analysis looks at whether the
medical source’s opinions are supported by the source’s own notes, diagnoses, and explanations.”
J.T.L. v. Kijakazi, No. 22-cv-02343-NYW, 2023 WL 5017241, at *4 (D. Colo. Aug. 7, 2023)
(citation omitted). “‘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
non medical sources in the claim, the more persuasive the medical opinion(s) . . . will be.’” Id.
(citing 20 C.F.R. § 404.1520c(c)(2); id. § 416.920c(a)) (alterations in original).
The ALJ must consider all medical opinions, and “[i]f the RFC assessment conflicts with
an opinion from a medical source the [ALJ] must explain why the opinion was not adopted.” SSR
96-8p, 1996 WL 374184, at *7 (July 2, 1996). Although the ALJ “‘is not required to discuss every
piece of evidence’ . . . the duty to address the persuasive value of all medical opinion evidence of
record—at least at the source level—is mandatory.” Ornelas v. Kijaziki, No. 21-cv-01031-KRS,
2023 WL 418060 (D.N.M. Jan. 26, 2023) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th
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Cir. 1996)) (internal citation omitted). Additionally, the ALJ may not “pick and choose among
medical reports, using portions of evidence favorable to his position while ignoring other
evidence.” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
The Social Security regulations do not “prescribe the depth at which the ALJ must discuss”
supportability and consistency. Harp v. Kijakazi, No. 21-0275 KRS, 2022 WL 2341740, at *6
(D.N.M. June 29, 2022). At the least, the ALJ must “eschew rote analysis and conclusory
explanations and discuss the crucial factors in any determination with sufficient specificity to
enable the reviewing court to decide whether the determination is supported by substantial
evidence.” Frazer v. Kijakazi, No. CV 20-1147 GBW, 2022 WL 682661, at *5 (D.N.M. March 8,
2022) 	(citation 	modified). 	“Courts 	have 	deferred 	to ALJ’s 	‘minimalist’ findings 	on 	the
supportability and consistency of medical opinions.” Id. (collecting cases). And an ALJ “may reject
a [medical opinion] outright only on the basis of contradictory medical evidence and not due to his
or her own credibility judgments, speculation or lay opinion.” McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir. 2002) (quotation and emphasis omitted).
Here, in determining Plaintiff’s RFC, the ALJ found consistent and persuasive the prior
administrative findings of multiple psychological and medical State agency consultants—Dr. Ellen
Ryan, M.D., Dr. Mark Suyeishi, Psy.D., Dr. Robert Pratt, M.D., and Dr. Erin Madden, M.D. AR at
17-19. Additionally, the ALJ found the medical opinion of Dr. A. Severance, D.O., the medical
consultative examiner, to be “persuasive overall.” Id. at 19. On the other hand, the ALJ found the
opinions of Dr. Frederick Leidal, Psy.D., a psychological consultant examiner, and Dr. Aaron
Fields, D.O., Plaintiff’s primary care doctor, to be “not persuasive.” Id. at 17-18. Finally, the ALJ
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omitted an articulation about Diana Smith,7 PMHNP, one of Plaintiff’s treatment providers,
because 	the ALJ 	determined 	that 	she 	provided 	a 	“statement 	on 	issues 	reserved 	to 	the
Commissioner.” Id. at 19.
Plaintiff takes issue with the ALJ’s determination that Dr. Leidal’s and Dr. Fields’s medical
opinions were “not persuasive.” ECF 13 at 9-13. Specifically, Plaintiff argues that “the ALJ
erroneously failed to discuss the supportability and consistency of these medical opinions limiting
Plaintiff to less than full-time employment.” Id. at 12.
In response, the Commissioner argues that the ALJ reasonably evaluated these medical
opinions in determining the RFC. ECF 15 at 12. The Commissioner notes that the regulation only
requires the ALJ to “articulate how persuasive he finds the opinions and prior administrative
findings.” Id. (citing 20 C.F.R. § 416.920c(b); Zhu, 2021 WL 2794533, at *5-6; 20 C.F.R. §
416.913(a)(2), (5)). When a medical source provides multiple medical opinions or findings, ALJs
need not discuss each opinion individually and may address them “together in a single analysis.”
Id. at 13 (citing 20 C.F.R. Sect. 416.920c(b)(1)). The Commissioner points to specific portions of
the record demonstrating that Dr. Leidal’s and Dr. Fields’s medical opinions lacked support and
were inconsistent with the evidence. See ECF 15 at 12-17. This Court sides with the Commissioner,
finding that the ALJ evaluated these two opinions correctly under 20 C.F.R. Sect. 416.920c and
supported his findings with substantial evidence.
a. 	Dr. Leidal’s Medical Opinion
7 Plaintiff does not challenge the ALJ’s determination that the opinion offered by Ms. Smith was
not a “medical opinion” subject to the articulation requirements. See generally ECF 13.
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On November 28, 2022, Dr. Leidal conducted a telehealth psychiatric evaluation upon
request by the Colorado Department of Human Services/Disability Determination. See ECF 9 at
350. In his functional assessment, Dr. Leidal opined that Plaintiff was “mildly” impaired in:
comprehension and application of information; memory; and ability to maintain attention and
concentration. Id. at 354-55. Dr. Leidal identified the following “moderate” impairments: ability
to follow more complex instructions or directions in a work setting; persistence and pace; ability
to perform a simple repetitive task; ability to perform multi-step tasks; ability to relate to others,
although situational; and ability to withstand mental stress and pressures associated with day-to-
day work activity. Id.
i. 	Supportability
Plaintiff first asserts that the ALJ erred by failing to adopt Dr. Leidal’s observations of
Plaintiff and failing to support his conclusions with substantial evidence. See ECF 13 at 10.
Plaintiff’s argument is not convincing. The ALJ provided multiple reasons for not finding Dr.
Leidal’s opinion persuasive, including that Dr. Leidal: (1) only examined Plaintiff on one occasion,
(2) relied on Plaintiff’s subjective representations concerning her ability to interact with others, (3)
provided opinions that were inconsistent with Plaintiff’s mental status exams and daily activities,8
and (4) made only vague statements and failed to provide a function-by-function analysis.9 ECF 9
at 18. The Court finds the ALJ’s conclusion to be supported by substantial evidence.
8 Dr. Leidal’s own observation of Plaintiff, as part of the Mental Status Examination described her
to be “clearly alert and oriented” with appropriate eye contact and behaviorally, “composed and
appropriate for the situation.” ECF 9 at 352. Plaintiff’s description of activities of daily living also
called into question Dr. Leidal’s Functional Assessment. Id. (noting Plaintiff’s fairly normal daily
routines, her ability to conduct independent activities of daily living while living alone, and her
social activities).
9 Plaintiff also misstates Dr. Leidal’s opinion regarding a payee for benefits: he opined that a
payee was not needed. See ECF 9 at 354.
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Plaintiff also challenges the ALJ’s failure to adopt the observations made during his
examination of Plaintiff. This Court sees Plaintiff’s argument as a request for this Court to reweigh
the evidence, which would be improper. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
Plaintiff’s opening brief largely points to parts of the record which Plaintiff argues refute the ALJ’s
determination. See ECF 13 at 9-13. Indeed, the ALJ supported his finding that Dr. Leidal’s opinion
was not persuasive with not one, or two, but multiple reasons. ECF 9 at 18. Thus, the ALJ
articulated grounds for the unsupportability of Dr. Leidal’s opinion as required by 20 C.F.R. §
416.920c(b)(2), so the Court finds no legal error here.
This Court determines that the ALJ evaluated Dr. Leidal’s findings appropriately and his
decision to find Dr. Leidal’s opinions as unsupported is supported by substantial evidence. See Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“We may not ‘displace the agenc[y's] choice
between two fairly conflicting views, even though the court would justifiably have made a different
choice had the matter been before it de novo.’”) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
ii. 	Consistency
Consistency “is an all-encompassing inquiry focused on how well a medical source is
supported, or not supported, by the entire record.” Miles v. Comm’r, No. 20-cv-01456-WJM, 2021
WL 3076846, at *3 (D. Colo. July 21, 2021) (citation and quotations omitted). Unless the
inconsistency is obvious, the ALJ must explain how the evidence is inconsistent with work-related
functional activities. See J.T.L., 2023 WL 5017241, at *8 (finding no obvious inconsistency
between the plaintiff’s ability to drive and attend important events with a marked limitation in
attendance and punctuality). Regarding Dr. Leidal’s opinion, the ALJ stated, in full:
The evidence of the claimant’s stable mental status exams and daily activities is
inconsistent with Dr. Leidal’s opinion. For example, the claimant could use the
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internet, talk to friends on Facetime, and drive. This evidence is inconsistent with
finding a “moderate” impairment in relating to others and dealing with workplace
stress. Additionally, the claimant’s ability to perform selfcare independently and
perform some household chores is inconsistent with finding a “moderate” limitation
in maintaining concentration and attention.
ECF 9 at 18.
Here, the inconsistency between some of Dr. Leidal’s observations and the other evidence
in the record, explicitly recognized by the ALJ, is obvious. For example, Plaintiff’s presentation
to the ALJ and Dr. Leidal, when combined with her admitted functionality in her daily life as
described by multiple other sources, ECF 9 at 16-20, contradicted the observations made by Dr.
Leidal as part of the Functionality Assessment, ECF 354-55. And the ALJ described this
inconsistency with sufficient detail. See Watkins, 350 F.3d at 1301 (citing Miller v. Chater, 99 F.3d
972, 976 (10th Cir. 1996) (“if the ALJ rejects the opinion completely, he must then give ‘specific,
legitimate reasons’ for doing so.”)).
The Court notes that Plaintiff only cherry picks a select few statements from Dr. Leidal’s
report to attack the ALJ’s findings. ECF 13 at 9-10. “The Court’s task is not to reweigh the
evidence, but to determine if the ALJ’s decision is supported by substantial evidence.” Borden v.
Saul, No. 18-cv-02873-PAB, 2020 WL 2832379, at *6 (D. Colo. June 1, 2020) (citing Branum v.
Barnhart, 385 F.3d 1268, 1273-74 (10th Cir. 2004)).
b. 	Dr. Fields’s Medical Opinion
Plaintiff also argues that the ALJ erred by finding Dr. Fields’s opinion not persuasive. ECF
13 at 11. Plaintiff never specifically states what finding of the ALJ’s was incorrect, merely
insinuating that he found that Dr. Fields’s opinion was not “supported by treatment notes.” ECF
13 at 11. Plaintiff’s arguments are too conclusory to sufficiently raise issues for appeal. See Lax v.
Astrue, 489 F.3d 1080, 1089 (10th Cir. 2007) (declining to consider undeveloped argument).
Moreover, Plaintiff misrepresents the ALJ’s findings.
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On supportability, the ALJ found Dr. Fields’s opinion lacking support for multiple reasons.
First, Dr. Fields failed to support his conclusory opinion “with specific exam findings he made of
claimant.” ECF 9 at 18. Instead, Dr. Fields 	“completed a checkbox form noting the claimant’s
mental diagnosis.” Id. Additionally, as with Dr. Leidal, the substance of Dr. Fields’s opinions was
inconsistent with his own stable exam findings of Plaintiff. Id.10
Plaintiff’s primary attack11 on the ALJ’s findings in this area centers on the ALJ’s failure
to recognize the consistency of Dr. Fields’s opinions. See ECF 13 at 11 (noting that Dr. Fields’s
opinion “was supported by treatment notes”). And while there is evidence in the record that may
be consistent with some of Dr. Fields’s findings, id. at 11-12, the ALJ provided sufficient
information to support his conclusion that Dr. Fields’s opinions were not persuasive. Specifically,
the ALJ found Dr. Fields’s medical opinion inconsistent with evidence of Plaintiff’s “good
activities of daily living.” Id. Plaintiff’s independence in selfcare and ability to drive, the ALJ
reasoned, were “inconsistent with finding she was unable to meet competitive standards in being
aware of workplace hazards or following workplace procedures.” Id. Citing Plaintiff’s ability to
engage with the ALJ and examiners, he found Dr. Fields’s “interpersonal assessment” inconsistent
with the record. Id. Even if this Court disagrees with the ALJ’s ultimate conclusion, this Court may
not overturn it because it is supported by substantial evidence.
10 The ALJ also found Dr. Fields’s opinion to be “vague as he does not provide a specific, function-
by-function analysis of the most the claimant is capable.” Id. This does not bear on the internal
supportability of Dr. Fields’s medical opinion and thus does not fall under the mandatory
articulation requirement.
11 In one line, Plaintiff mentions that the ALJ’s findings are not “supported by” the other evidence
in the record. ECF 13 at 12. However, as discussed above, the “supportability” factor concerns
whether the opinion is supported by the source’s own evidence. J.T.L., 2023 WL 5017241, at *4.
This argument is never developed by Plaintiff.
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The Tenth Circuit has explained that medical source opinions presented through check-box
forms are not necessarily improper per se, but such opinions must be supported by substantial
evidence, either on the forms or elsewhere in the record. See Anderson v. Astrue, 319 F. App’x 712,
723-34 (10th Cir. 2009) (unpublished). Here, the ALJ discredited Dr. Fields’s opinion due to the
vague nature of the form and stated that “Dr. Fields did not support his opinion with specific exam
findings he made of the claimant.” ECF 9 at 412. Because Plaintiff has only pointed to evidence
she believes refutes the ALJ’s findings, Plaintiff has raised no new arguments requiring more than
a cursory analysis and rejection.12
As a result, this Court finds that the ALJ’s conclusion finding Dr. Fields’s checkbox report
as not persuasive fails to provide a basis for reversal or remand. The ALJ sufficiently articulated
his persuasiveness findings, committing no legal error, and there is substantial evidence to support
these findings.
II. The Residual Functional Capacity
Plaintiff also attacks the ALJ’s Residual Functional Capacity (RFC) for failing to consider
Plaintiff’s subjective complaints. ECF 13 at 13-17. In support of this claim, Plaintiff presents a
series of citations to the record that ostensibly demonstrate various aspects of Plaintiff’s
impairment, as reported by Plaintiff, either to the ALJ or to medical providers. Id. Then, in
conclusory fashion, Plaintiff argues: “[t]he ALJ’s failure to discuss the symptoms described by
12 Plaintiff alleges that the ALJ’s findings “were not supported by nor were they consistent with
the medical evidence requiring a remand of this matter.” ECF 13 at 11. However, as it relates to
the ALJ’s finding of Dr. Fields as not persuasive, the record reflects Dr. Fields completed the
checkbox form on October 11, 2023. ECF 9 at 412-13. Approximately three weeks before, on
September 19, 2023, id. at 444-48, and four days later, on October 15, 2023, id. at 440-43, Dr.
Fields examined Plaintiff in person. And in these reports, Dr. Fields failed to note any sort of mental
impairment examination that could be considered consistent with those observations noted in the
October 11, 2023, record. Id. The Report of Systems (ROS) for each visit was unremarkable. Id.
This evidence in the record supports the ALJ’s findings.
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Plaintiff and included in the treatment notes and opinions of the treating and examining sources
meant that the RFC was not supported by substantial evidence.” Id. at 17. Plaintiff fails to point to
a specific complaint that the ALJ ignored.
A claimant “is entitled to have [her] nonmedical objective and subjective testimony of pain
evaluated by the ALJ and weighed alongside the medical evidence.” Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995) (quoting Huston v. Bowen, 838 F.2d 1125, 1131 (10th Cir. 1988)). The ALJ
“need not discuss each piece of evidence in every part of claimant’s testimony” as long as the
opinion makes clear “that a claimant’s testimony was considered.” Id. (citing Blea v. Barnhart,
466 F.3d 903, 915 (10th Cir. 2006)).
Once again, Plaintiff’s arguments do not accurately reflect the ALJ’s findings. The ALJ, in
fact, did consider all of the subjective complaints made by Plaintiff at the hearing. See ECF 9 at
15-16. The ALJ’s Decision also suggests that he reviewed the records of all of the sources cited by
Plaintiff and considered Plaintiff’s subjective complaints. See id. at 16-20. After considering all of
the relevant evidence, the ALJ found that Plaintiff’s subjective statements “are not entirely
consistent with the medical evidence and other evidence in the record.” Id. at 16. And the ALJ
described specific places in the record where Plaintiff’s mental status exams were consistently
stable, demonstrating stability throughout the alleged disability period. Id.
In the end, this Court finds that the ALJ’s RFC properly considered Plaintiff’s subjective
complaints and that there is substantial evidence in the record to support the ALJ’s decision not to
fully accept them as true. Even though there may be an equally logical interpretation for the
evidence, that is not a sufficient basis to overturn the ALJ’s decision. Zoltanski, 372 F.3d at 1200
(quoting City of Broken Arrow, 340 F.3d at 1133). It is not this Court’s job to reweigh the evidence
and the Court resists the invitation to do so yet again. Borden, 2020 WL 2832379, at *6.
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III. ALJ’S Failure to Inquire of the Vocational Expert
Plaintiff’s final argument is that the ALJ failed to resolve a conflict between the Vocational
Expert’s testimony and the Dictionary of Occupational Titles (DOT). ECF 13 at 18. However,
Plaintiff fails to demonstrate the existence of any conflict that was necessary for the ALJ to resolve.
At the Hearing, the ALJ proposed two hypotheticals to the Vocational Expert. The first one
involved Plaintiff’s exact characteristics. ECF 9 at 61. The Vocational Expert indicated that
Plaintiff’s past work would be appropriate for an individual with those characteristics. Id. Then the
ALJ changed the hypothetical to add additional break time between 15 and 30 minutes and the
individual being off task for more than 10% of the normally scheduled workday. Id. at 63. Under
that new hypothetical, employment was inconsistent with the individual’s condition. Id. Plaintiff’s
attorney was then allowed to ask questions. Id. at 64. At the conclusion of his testimony, the
Vocational Expert asked the ALJ if an additional basis for the numbers was necessary. The ALJ
stated no.
The ALJ “must either ensure that VE testimony corresponds to the DOT or explain any
variance.” K.M. v. Commissioner, Social Security Admin., No. 23-cv-00654-KAS, 2024 WL
1374956, at *7 (D. Colo. Mar. 31, 2024) (citations omitted). Plaintiff fails to raise an issue with
the VE’s testimony not corresponding to the DOT. Instead, Plaintiff merely states, without any
support, that no explanation was provided establishing that these jobs could be performed with
Plaintiff’s limitations. ECF 13 at 18. Yet during the hearing the VE specifically referenced jobs
from the DOT. ECF 9 at 62. Plaintiff’s counsel was present at the hearing to demonstrate any
variance between the DOT and the VE testimony, which he did not do. Because there were no
demonstrated conflicts, and still are none, between the VE’s testimony and the DOT’s job
descriptions, any error by the ALJ in failing to fully inquire about conflicts was harmless. See
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Poppa v. Astrue, 569 F.3d 1167, 1174 (10th Cir. 2009) (citing Massachi v. Astrue, 486 F.3d 1149,
1153-54, 1154 n.19 (9th Cir. 2007)).
CONCLUSION
Based on the foregoing, this Court finds that the ALJ’s determination that Plaintiff is not
disabled is AFFIRMED. The Clerk of Court shall enter judgment in Defendant’s favor and shall
close this civil action.
DATED at Denver, Colorado, this 31st day of March, 2026.
BY THE COURT:
Timothy P. O’Hara
United States Magistrate Judge
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