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Mario J. Gutierrez v. Commissioner, SSA
Date: 12-20-2021
Case Number: 18-4162
Judge: Joel M. Carson III
Court:
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
On appeal from The United States District Court for the District of Utah - Salt Lake City
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
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Description:
Gutierrez has a GED and has worked as a roofer and a production assembler. He
claims he became disabled in December 2012 based on an incident in August 2005, when
police tasered him after a minor car accident. Hospital records show Gutierrez exited the
car "brandishing [an] AK-47,†was tasered, and fell backward, hitting his head. Aplt. cial
App., Vol. II at 449. Medical professionals diagnosed him with alcohol intoxication,
anxiety, cerebral contusion, and a "possible small subarachnoid hemorrhage.†Id.,
Vol. III at 618; see also id., Vol. II at 453. Medical records reveal no sign that Gutierrez
lost consciousness during the incident and a CT scan showed "no evidence of intracranial
pressure.†Id., Vol. III at 627. Doctors released him the next day, determining he was
"neurologically intact.†Id. at 622, 624.
Two weeks later, neurologists Samuel Browd, M.D., Ph.D., and William Tupper
Couldwell, M.D. examined Gutierrez for headaches, nausea, and "some memory
trouble.†Id. at 622; see also id., Vol. II at 461. They concluded his headaches, nausea
and memory problem were "consistent with a concussion syndrome†and would be
temporary. Id., Vol. III at 622; see also id., Vol. II at 461. They also reported that when
Gutierrez was in the hospital, they had "reviewed his films and called into question
whether there was any traumatic subarachnoid hemorrhage.†Id., Vol. III at 622.
Drs. Browd and Couldwell instructed him to return for another appointment in two
months if his symptoms did not resolve. Medical records show no further appointments
with these doctors.
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Nearly eight years later, in May 2013, Gutierrez went to a health clinic for
completion of a Medicaid disability form. His chief complaint was "head trauma.†Id.,
Vol. II at 394. A physician's assistant interviewed Gutierrez, noting that upon being
tasered in 2005, Gutierrez was "brought to hospital - - treated and released - - no other
medical care.†Id. She diagnosed migraines and insomnia/excessive sleepiness, and she
noted he was "able to function†on "[i]buprofen or tylenol.†Id.
In July 2013, Gutierrez underwent psychological testing in support of applications
for state assistance. Gutierrez reported to Liz McGill, Ph.D, that his fall in 2005 caused
severe brain swelling, a three-day coma, "and 3 drills into [his] skull to release pressure.â€
Id. at 329. Dr. McGill concluded that he had a borderline IQ and had sustained a
traumatic brain injury leading to dementia and a mood disorder. Although she did not
conduct the testing herself, she signed the examiner's report, which revealed Gutierrez's
test scores and stated that because he had exhibited "less than adequate effort on some
tasks,†his "results [were] considered to be a possible underestimate of current cognitive
functioning.†Id., Vol. II at 332. Finally, Dr. McGill checked a box on Gutierrez's
"General Assistance†form generically stating he could not "work[ ] at all, in any
occupation,†id. at 324. She wrote on his Medicaid form that it was "at most likely [that]
part time work will be his optimal,†id. at 331.
In December 2013, Joseph Nelson, D.O., physically examined Gutierrez for his
DIB and SSI claims. Gutierrez "complain[ed] of headaches, dizziness, shortness of
breath, difficulty sleeping, loss of appetite, weight loss, depression and nervousness.â€
Id. at 363. He claimed that after he fell and hit his head, "he lost consciousness for 20
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4
hours,†but he denied having any surgery. Id. at 362. Dr. Nelson's physical exam
revealed "no evidence of debilitating headaches, post-concussion syndrome or fatigue
that would limit [Gutierrez's] ability to work.†Id. at 366.
In July 2014, Gutierrez began seeing Karly Pippitt, M.D., for his headaches.
Following an interview and examination, Dr. Pippitt reported "[n]o known surgical
history,†and she concluded that Gutierrez suffered from, as relevant here, "[c]hronic
post-traumatic headache[ ] with migranous feature,†"[m]edication overuse headache,â€
and "[p]ost concussive syndrome.†Id., Vol. III at 640, 643. She prescribed a pain
reliever, muscle relaxant, and anti-nausea/anti-migraine medications. At an October
2014 follow-up visit, Dr. Pippitt noted that Gutierrez was "doing much better in terms of
his chronic headache,†he had "broken his cycle of medication overuse headache,†and he
was "able to abort his migraines successfully with [an anti-migraine medication].†Id. at
654.
In February 2015, Gutierrez underwent a mental-health assessment in support of
his DIB and SSI applications. The mental-health counselor, Jamal Barakat, questioned
Gutierrez's claims that he suffered from dementia and post-traumatic concussion
syndrome, and he stated that Gutierrez's "motive[ ] for [treatment] is unclear and it could
be related to his attempt to get [disability benefits].†Id., Vol. IV at 755. Barakat
examined Gutierrez, finding organized thoughts, proper orientation, intact concentration
and memory, alertness, and appropriate affect. Barakat reported that Gutierrez "is able to
work and has been meaningfully employed for the past 6 yrs as a roofer.†Id. Barakat
diagnosed non-specific mood, personality, and anxiety disorders.
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State agency physicians reviewed Gutierrez's medical records for his DIB and SSI
claims. Drs. Philip Cali and Joan Zone found that Gutierrez suffered from a cognitive
impairment that posed moderate limitations in carrying out detailed instructions,
maintaining attention/concentration for extended periods, completing a normal
workday/workweek, and performing at a consistent pace. Even so, Drs. Cali and Zone
concluded that those limitations would not preclude simple, routine work.
The ALJ held a hearing, taking testimony from Gutierrez, medical expert
Dr. Ronald Houston, and vocational expert (VE) John Hurst. Gutierrez testified that the
2005 fall had caused migraines, irritability, anxiety, insomnia, restlessness, and
memory/comprehension problems. Dr. Houston testified he relied on Dr. McGill's
diagnostic workup to conclude that Gutierrez suffers from borderline IQ and traumatic
brain injury resulting in dementia and mood disorder. Dr. Houston described Gutierrez's
(1) daily-living activities as mildly impaired, (2) social interactions as moderately
limited, and (3) persistence and pace as markedly limited. He opined that upon the injury
in 2005, Gutierrez met the listing of impairments for a chronic organic mental disorder,
and he explained that while traumatic brain injuries generally improve within a year or
two, Gutierrez "may have some residual impairments because he did have a subarachnoid
hemorrhage . . . [and] a loss of consciousness.†Id., Vol. I at 71. Finally, VE Hurst
testified that a hypothetical claimant with Gutierrez's age, education, and work
experience could work as a production assembler even if able to follow only short and
simple instructions, make only simple work-related judgments and decisions, and have
only occasional changes in a routine work setting.
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After the hearing, the ALJ reviewed the evidence and found Gutierrez not
disabled. In doing so, the ALJ determined that Gutierrez suffers from four severe
impairments: headaches, remote traumatic brain injury, unspecified mood disorder, and
unspecified anxiety disorder. The ALJ concluded that Gutierrez did not meet a listed
impairment, however, and that Dr. Houston's contrary opinion was entitled to "little
weight†because Dr. Houston's "evaluation of the evidence was cursoryâ€; Gutierrez had
not used full effort during testing with Dr. McGill; "[Gutierrez's] injury [wa]s too remote
and the record show[ed] he held many jobs since his original injuryâ€; and "[a]t the time
of the head injury [Gutierrez] received very minimal treatment and there was virtually no
follow up.†Id. at 32.
The ALJ also gave little weight to Dr. McGill's opinions about Gutierrez's work
abilities, stating they concerned a matter reserved to the Commissioner. The ALJ
observed that Dr. McGill had not explained her opinions and had cautioned that
Gutierrez's test results likely underestimated his cognitive functioning.
In contrast, the ALJ gave "great weight†to the opinions of Dr. Nelson, who had
physically examined Gutierrez, and Drs. Cali and Zone, who had reviewed Gutierrez's
medical records. Id. at 32, 33.
Finally, the ALJ turned to Gutierrez's residual functional capacity (RFC). The
ALJ determined Gutierrez could perform a full range of work at all exertional levels so
long as it involved only (1) short and simple instructions; (2) simple work-related
judgments/decisions; and (3) occasional changes in a routine work setting. Based on that
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RFC and the VE's testimony, the ALJ concluded that Gutierrez could perform his past
work as a production assembler, and therefore, he was not disabled.
The district court affirmed, prompting this appeal.
DISCUSSION
I. Standards of Review
"We review the district court's decision de novo and independently determine
whether the ALJ's decision is free from legal error and supported by substantial
evidence.†Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.†Frantz v. Astrue, 509 F.3d 1299, 1300 (10th Cir. 2007) (internal
quotation marks omitted).
II. Medical Opinion Evidence
Gutierrez argues that the ALJ erred in giving little weight to the opinions of
Drs. McGill and Houston.
A. Dr. McGill
An ALJ may dismiss or discount an examining physician's medical opinion after
evaluating the factors in 20 C.F.R. § 404.1527(c) and § 416.927(c). Chapo v. Astrue,
682 F.3d 1285, 1291 (10th Cir. 2012). Those factors include the nature, extent,
frequency, and length of the treatment relationship; the supportability of the medical
opinion; the consistency of the opinion with the record as a whole; whether the opinion
relates to the physician's specialty; and other factors that tend to support or detract from
the opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c). A physician's opinion that a
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8
claimant cannot work carries no "special significance,†as it relates to an issue reserved to
the Commissioner. Id. § 404.1527(d)(3); 416.927(d)(3).
Here, the ALJ discussed Dr. McGill's limited involvement with Gutierrez, her
failure to explain the conclusions she reached, her opinions about Gutierrez's ability to
work, and Gutierrez's limited testing effort. Gutierrez first challenges the ALJ's rejection
of Dr. McGill's opinions about his work abilities. Gutierrez suggests that a physician
invades the Commissioner's province only by opining that a claimant is "disabled.†Aplt.
Opening Br. at 14. The regulations, however, designate many issues reserved for the
Commissioner, such as the claimant's ability to work. See 20 C.F.R. §§ 404.1527(d),
416.927(d).
Next, Gutierrez argues that "Dr. McGill's explanations for her conclusions are
found in her lengthy examination report and are supported by the results of testing that
she supervised.†Aplt. Opening Br. at 15. But Dr. McGill's two-and-a-half page
examination report mostly quotes Gutierrez's own description of his injury and
symptoms. And we see no basis to construe Gutierrez's test results as a substitute
explanation for Dr. McGill's conclusions, where Dr. McGill acknowledged that because
of a lack of testing effort, the results may underestimate Gutierrez's cognitive
functioning.
Gutierrez argues that his observed lack of testing effort had no real significance.
He points out that the test had both a memory and IQ component, and he complains that
the ALJ erroneously downplayed his memory impairment by describing the test as "IQ
tests.†Id. at 11. Gutierrez's argument is not persuasive. The observed lack of testing
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effort concerned the entire psychological evaluation, and applied "particularly [to]
memory related tasks,†Aplt. App., Vol. II at 332. The ALJ's shorthand characterization
of the evaluation as "IQ tests†is not reversible error.1
We conclude that the ALJ identified sufficient reasons for discounting
Dr. McGill's opinions and that substantial evidence supports the ALJ's decision.
B. Dr. Houston
Gutierrez argues the ALJ erred in giving little weight to Dr. Houston's opinions.
To recap, prior to the disability hearing, Dr. Houston reviewed Gutierrez's medical
records and determined he became severely mentally impaired upon his injury in 2005.
2
According to Dr. Houston, Gutierrez's mental impairment caused moderate limitations in
his ability to interact socially and marked limitations in his abilities to maintain
1 Gutierrez further attempts to diminish the significance of his observed lack of
testing effort by stating that "Dr. Houston, who reviewed Dr. McGill's report,
testified the test results were valid and were not affected by perceived waxing and
waning of effort.†Aplt. Opening Br. at 15 (internal quotation marks omitted).
Gutierrez does not supply a record citation in support of this argument. Our review
of Dr. Houston's testimony shows that he apparently believed Gutierrez displayed
consistent effort, given some of the test results. Still, Dr. McGill supervised the
evaluation and signed the report documenting Gutierrez's lack of effort.
Dr. Houston, by contrast, had no involvement in the testing. Gutierrez has not shown
the ALJ erred by noting a lack of testing effort. See 20 C.F.R. § 404.1527(c)(1)
("giv[ing] more weight to the medical opinion of a source who has examined [the
claimant] than to the medical opinion of a medical source who has not examined [the
claimant]â€); id. § 416.927(c)(1) (same).
2 Gutierrez does not argue the ALJ erred in determining that his impairments
do not meet the criteria of a listed impairment. "Issues not raised in the opening brief
are deemed abandoned or waived.†Coleman v. B-G Maint. Mgmt. of Colo., Inc.,
108 F.3d 1199, 1205 (10th Cir. 1997).
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persistence and pace. The ALJ identified four reasons in support of discounting the
weight of Dr. Houston's opinions: Dr. Houston only cursorily evaluated the medical
evidence; Gutierrez displayed a lack of testing effort with Dr. McGill; Gutierrez's injury
was remote and he continued to work after the injury; and Gutierrez sought only minimal
follow-up care for his injury.
We conclude that the ALJ did not err in assigning little weight to Dr. Houston's
opinions. Those opinions were based, in large part, on Dr. McGill's diagnostic workup.
But as we have already discussed, the results of her testing may have underestimated
Gutierrez's cognitive functioning. Moreover, much of Dr. McGill's workup was based
on Gutierrez's own description of his injury, its severity, and the resulting limitations.
Indeed, Dr. McGill's report appears to be the only record evidence suggesting that he was
in a coma after his fall and that physicians surgically drilled holes into his skull to relieve
pressure. Most of the records suggest no surgical intervention, no period of
unconsciousness, and an almost eight-year period between his injury and subsequent
medical consultation for migraines.
Gutierrez's medical records support the remainder of the ALJ's bases for
discounting Dr. Houston's opinions. For instance, counselor Barakat noted that Gutierrez
had engaged in post-injury employment. Dr. Pippitt reported that Gutierrez had
controlled his migraines with medication. Dr. Nelson examined Gutierrez and reported
no severe mental impairments. Drs. Cali and Zone reviewed Gutierrez's medical records
and found only moderate mental limitations.
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In short, the ALJ identified enough reasons for discounting Dr. Houston's
opinions and substantial evidence supports the ALJ's decision.
III. Past Relevant Work
Gutierrez argues the ALJ erred in determining he could work as a production
assembler. He contends the ALJ did not make the necessary findings about the job's
mental demands. We disagree.
The ALJ established Gutierrez's RFC, recounted VE Hurst's testimony that
Gutierrez's production-assembler job involved light and unskilled work that "was very
repetitious with few changes,†Aplt. App., Vol. I at 34, and then compared Gutierrez's
RFC to the demands of the job, determining that Gutierrez could meet those demands.
An ALJ may rely on a VE's testimony to establish the demands of a claimant's past work
so long as that assessment does not occur "in the VE's head,†leaving "nothing [for this
court] to review,†Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996). See Doyal v.
Barnhart, 331 F.3d 758, 761 (10th Cir. 2003) (holding that ALJ did not improperly
delegate his duties to the VE where "he quoted the VE's testimony approvingly, in
support of his own findingsâ€). Here, the ALJ made sufficient findings on the mental
demands of Gutierrez's past work
Denver, CO - Social Security lawyer represented defendant with appealing from a district court order that affirmed the Commissioner's denial of his applications for disability insurance benefits (DIB) and supplemental security income (SSI).
Gutierrez has a GED and has worked as a roofer and a production assembler. He
claims he became disabled in December 2012 based on an incident in August 2005, when
police tasered him after a minor car accident. Hospital records show Gutierrez exited the
car "brandishing [an] AK-47,†was tasered, and fell backward, hitting his head. Aplt. cial
App., Vol. II at 449. Medical professionals diagnosed him with alcohol intoxication,
anxiety, cerebral contusion, and a "possible small subarachnoid hemorrhage.†Id.,
Vol. III at 618; see also id., Vol. II at 453. Medical records reveal no sign that Gutierrez
lost consciousness during the incident and a CT scan showed "no evidence of intracranial
pressure.†Id., Vol. III at 627. Doctors released him the next day, determining he was
"neurologically intact.†Id. at 622, 624.
Two weeks later, neurologists Samuel Browd, M.D., Ph.D., and William Tupper
Couldwell, M.D. examined Gutierrez for headaches, nausea, and "some memory
trouble.†Id. at 622; see also id., Vol. II at 461. They concluded his headaches, nausea
and memory problem were "consistent with a concussion syndrome†and would be
temporary. Id., Vol. III at 622; see also id., Vol. II at 461. They also reported that when
Gutierrez was in the hospital, they had "reviewed his films and called into question
whether there was any traumatic subarachnoid hemorrhage.†Id., Vol. III at 622.
Drs. Browd and Couldwell instructed him to return for another appointment in two
months if his symptoms did not resolve. Medical records show no further appointments
with these doctors.
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3
Nearly eight years later, in May 2013, Gutierrez went to a health clinic for
completion of a Medicaid disability form. His chief complaint was "head trauma.†Id.,
Vol. II at 394. A physician's assistant interviewed Gutierrez, noting that upon being
tasered in 2005, Gutierrez was "brought to hospital - - treated and released - - no other
medical care.†Id. She diagnosed migraines and insomnia/excessive sleepiness, and she
noted he was "able to function†on "[i]buprofen or tylenol.†Id.
In July 2013, Gutierrez underwent psychological testing in support of applications
for state assistance. Gutierrez reported to Liz McGill, Ph.D, that his fall in 2005 caused
severe brain swelling, a three-day coma, "and 3 drills into [his] skull to release pressure.â€
Id. at 329. Dr. McGill concluded that he had a borderline IQ and had sustained a
traumatic brain injury leading to dementia and a mood disorder. Although she did not
conduct the testing herself, she signed the examiner's report, which revealed Gutierrez's
test scores and stated that because he had exhibited "less than adequate effort on some
tasks,†his "results [were] considered to be a possible underestimate of current cognitive
functioning.†Id., Vol. II at 332. Finally, Dr. McGill checked a box on Gutierrez's
"General Assistance†form generically stating he could not "work[ ] at all, in any
occupation,†id. at 324. She wrote on his Medicaid form that it was "at most likely [that]
part time work will be his optimal,†id. at 331.
In December 2013, Joseph Nelson, D.O., physically examined Gutierrez for his
DIB and SSI claims. Gutierrez "complain[ed] of headaches, dizziness, shortness of
breath, difficulty sleeping, loss of appetite, weight loss, depression and nervousness.â€
Id. at 363. He claimed that after he fell and hit his head, "he lost consciousness for 20
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4
hours,†but he denied having any surgery. Id. at 362. Dr. Nelson's physical exam
revealed "no evidence of debilitating headaches, post-concussion syndrome or fatigue
that would limit [Gutierrez's] ability to work.†Id. at 366.
In July 2014, Gutierrez began seeing Karly Pippitt, M.D., for his headaches.
Following an interview and examination, Dr. Pippitt reported "[n]o known surgical
history,†and she concluded that Gutierrez suffered from, as relevant here, "[c]hronic
post-traumatic headache[ ] with migranous feature,†"[m]edication overuse headache,â€
and "[p]ost concussive syndrome.†Id., Vol. III at 640, 643. She prescribed a pain
reliever, muscle relaxant, and anti-nausea/anti-migraine medications. At an October
2014 follow-up visit, Dr. Pippitt noted that Gutierrez was "doing much better in terms of
his chronic headache,†he had "broken his cycle of medication overuse headache,†and he
was "able to abort his migraines successfully with [an anti-migraine medication].†Id. at
654.
In February 2015, Gutierrez underwent a mental-health assessment in support of
his DIB and SSI applications. The mental-health counselor, Jamal Barakat, questioned
Gutierrez's claims that he suffered from dementia and post-traumatic concussion
syndrome, and he stated that Gutierrez's "motive[ ] for [treatment] is unclear and it could
be related to his attempt to get [disability benefits].†Id., Vol. IV at 755. Barakat
examined Gutierrez, finding organized thoughts, proper orientation, intact concentration
and memory, alertness, and appropriate affect. Barakat reported that Gutierrez "is able to
work and has been meaningfully employed for the past 6 yrs as a roofer.†Id. Barakat
diagnosed non-specific mood, personality, and anxiety disorders.
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State agency physicians reviewed Gutierrez's medical records for his DIB and SSI
claims. Drs. Philip Cali and Joan Zone found that Gutierrez suffered from a cognitive
impairment that posed moderate limitations in carrying out detailed instructions,
maintaining attention/concentration for extended periods, completing a normal
workday/workweek, and performing at a consistent pace. Even so, Drs. Cali and Zone
concluded that those limitations would not preclude simple, routine work.
The ALJ held a hearing, taking testimony from Gutierrez, medical expert
Dr. Ronald Houston, and vocational expert (VE) John Hurst. Gutierrez testified that the
2005 fall had caused migraines, irritability, anxiety, insomnia, restlessness, and
memory/comprehension problems. Dr. Houston testified he relied on Dr. McGill's
diagnostic workup to conclude that Gutierrez suffers from borderline IQ and traumatic
brain injury resulting in dementia and mood disorder. Dr. Houston described Gutierrez's
(1) daily-living activities as mildly impaired, (2) social interactions as moderately
limited, and (3) persistence and pace as markedly limited. He opined that upon the injury
in 2005, Gutierrez met the listing of impairments for a chronic organic mental disorder,
and he explained that while traumatic brain injuries generally improve within a year or
two, Gutierrez "may have some residual impairments because he did have a subarachnoid
hemorrhage . . . [and] a loss of consciousness.†Id., Vol. I at 71. Finally, VE Hurst
testified that a hypothetical claimant with Gutierrez's age, education, and work
experience could work as a production assembler even if able to follow only short and
simple instructions, make only simple work-related judgments and decisions, and have
only occasional changes in a routine work setting.
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6
After the hearing, the ALJ reviewed the evidence and found Gutierrez not
disabled. In doing so, the ALJ determined that Gutierrez suffers from four severe
impairments: headaches, remote traumatic brain injury, unspecified mood disorder, and
unspecified anxiety disorder. The ALJ concluded that Gutierrez did not meet a listed
impairment, however, and that Dr. Houston's contrary opinion was entitled to "little
weight†because Dr. Houston's "evaluation of the evidence was cursoryâ€; Gutierrez had
not used full effort during testing with Dr. McGill; "[Gutierrez's] injury [wa]s too remote
and the record show[ed] he held many jobs since his original injuryâ€; and "[a]t the time
of the head injury [Gutierrez] received very minimal treatment and there was virtually no
follow up.†Id. at 32.
The ALJ also gave little weight to Dr. McGill's opinions about Gutierrez's work
abilities, stating they concerned a matter reserved to the Commissioner. The ALJ
observed that Dr. McGill had not explained her opinions and had cautioned that
Gutierrez's test results likely underestimated his cognitive functioning.
In contrast, the ALJ gave "great weight†to the opinions of Dr. Nelson, who had
physically examined Gutierrez, and Drs. Cali and Zone, who had reviewed Gutierrez's
medical records. Id. at 32, 33.
Finally, the ALJ turned to Gutierrez's residual functional capacity (RFC). The
ALJ determined Gutierrez could perform a full range of work at all exertional levels so
long as it involved only (1) short and simple instructions; (2) simple work-related
judgments/decisions; and (3) occasional changes in a routine work setting. Based on that
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7
RFC and the VE's testimony, the ALJ concluded that Gutierrez could perform his past
work as a production assembler, and therefore, he was not disabled.
The district court affirmed, prompting this appeal.
DISCUSSION
I. Standards of Review
"We review the district court's decision de novo and independently determine
whether the ALJ's decision is free from legal error and supported by substantial
evidence.†Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.†Frantz v. Astrue, 509 F.3d 1299, 1300 (10th Cir. 2007) (internal
quotation marks omitted).
II. Medical Opinion Evidence
Gutierrez argues that the ALJ erred in giving little weight to the opinions of
Drs. McGill and Houston.
A. Dr. McGill
An ALJ may dismiss or discount an examining physician's medical opinion after
evaluating the factors in 20 C.F.R. § 404.1527(c) and § 416.927(c). Chapo v. Astrue,
682 F.3d 1285, 1291 (10th Cir. 2012). Those factors include the nature, extent,
frequency, and length of the treatment relationship; the supportability of the medical
opinion; the consistency of the opinion with the record as a whole; whether the opinion
relates to the physician's specialty; and other factors that tend to support or detract from
the opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c). A physician's opinion that a
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8
claimant cannot work carries no "special significance,†as it relates to an issue reserved to
the Commissioner. Id. § 404.1527(d)(3); 416.927(d)(3).
Here, the ALJ discussed Dr. McGill's limited involvement with Gutierrez, her
failure to explain the conclusions she reached, her opinions about Gutierrez's ability to
work, and Gutierrez's limited testing effort. Gutierrez first challenges the ALJ's rejection
of Dr. McGill's opinions about his work abilities. Gutierrez suggests that a physician
invades the Commissioner's province only by opining that a claimant is "disabled.†Aplt.
Opening Br. at 14. The regulations, however, designate many issues reserved for the
Commissioner, such as the claimant's ability to work. See 20 C.F.R. §§ 404.1527(d),
416.927(d).
Next, Gutierrez argues that "Dr. McGill's explanations for her conclusions are
found in her lengthy examination report and are supported by the results of testing that
she supervised.†Aplt. Opening Br. at 15. But Dr. McGill's two-and-a-half page
examination report mostly quotes Gutierrez's own description of his injury and
symptoms. And we see no basis to construe Gutierrez's test results as a substitute
explanation for Dr. McGill's conclusions, where Dr. McGill acknowledged that because
of a lack of testing effort, the results may underestimate Gutierrez's cognitive
functioning.
Gutierrez argues that his observed lack of testing effort had no real significance.
He points out that the test had both a memory and IQ component, and he complains that
the ALJ erroneously downplayed his memory impairment by describing the test as "IQ
tests.†Id. at 11. Gutierrez's argument is not persuasive. The observed lack of testing
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effort concerned the entire psychological evaluation, and applied "particularly [to]
memory related tasks,†Aplt. App., Vol. II at 332. The ALJ's shorthand characterization
of the evaluation as "IQ tests†is not reversible error.1
We conclude that the ALJ identified sufficient reasons for discounting
Dr. McGill's opinions and that substantial evidence supports the ALJ's decision.
B. Dr. Houston
Gutierrez argues the ALJ erred in giving little weight to Dr. Houston's opinions.
To recap, prior to the disability hearing, Dr. Houston reviewed Gutierrez's medical
records and determined he became severely mentally impaired upon his injury in 2005.
2
According to Dr. Houston, Gutierrez's mental impairment caused moderate limitations in
his ability to interact socially and marked limitations in his abilities to maintain
1 Gutierrez further attempts to diminish the significance of his observed lack of
testing effort by stating that "Dr. Houston, who reviewed Dr. McGill's report,
testified the test results were valid and were not affected by perceived waxing and
waning of effort.†Aplt. Opening Br. at 15 (internal quotation marks omitted).
Gutierrez does not supply a record citation in support of this argument. Our review
of Dr. Houston's testimony shows that he apparently believed Gutierrez displayed
consistent effort, given some of the test results. Still, Dr. McGill supervised the
evaluation and signed the report documenting Gutierrez's lack of effort.
Dr. Houston, by contrast, had no involvement in the testing. Gutierrez has not shown
the ALJ erred by noting a lack of testing effort. See 20 C.F.R. § 404.1527(c)(1)
("giv[ing] more weight to the medical opinion of a source who has examined [the
claimant] than to the medical opinion of a medical source who has not examined [the
claimant]â€); id. § 416.927(c)(1) (same).
2 Gutierrez does not argue the ALJ erred in determining that his impairments
do not meet the criteria of a listed impairment. "Issues not raised in the opening brief
are deemed abandoned or waived.†Coleman v. B-G Maint. Mgmt. of Colo., Inc.,
108 F.3d 1199, 1205 (10th Cir. 1997).
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persistence and pace. The ALJ identified four reasons in support of discounting the
weight of Dr. Houston's opinions: Dr. Houston only cursorily evaluated the medical
evidence; Gutierrez displayed a lack of testing effort with Dr. McGill; Gutierrez's injury
was remote and he continued to work after the injury; and Gutierrez sought only minimal
follow-up care for his injury.
We conclude that the ALJ did not err in assigning little weight to Dr. Houston's
opinions. Those opinions were based, in large part, on Dr. McGill's diagnostic workup.
But as we have already discussed, the results of her testing may have underestimated
Gutierrez's cognitive functioning. Moreover, much of Dr. McGill's workup was based
on Gutierrez's own description of his injury, its severity, and the resulting limitations.
Indeed, Dr. McGill's report appears to be the only record evidence suggesting that he was
in a coma after his fall and that physicians surgically drilled holes into his skull to relieve
pressure. Most of the records suggest no surgical intervention, no period of
unconsciousness, and an almost eight-year period between his injury and subsequent
medical consultation for migraines.
Gutierrez's medical records support the remainder of the ALJ's bases for
discounting Dr. Houston's opinions. For instance, counselor Barakat noted that Gutierrez
had engaged in post-injury employment. Dr. Pippitt reported that Gutierrez had
controlled his migraines with medication. Dr. Nelson examined Gutierrez and reported
no severe mental impairments. Drs. Cali and Zone reviewed Gutierrez's medical records
and found only moderate mental limitations.
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In short, the ALJ identified enough reasons for discounting Dr. Houston's
opinions and substantial evidence supports the ALJ's decision.
III. Past Relevant Work
Gutierrez argues the ALJ erred in determining he could work as a production
assembler. He contends the ALJ did not make the necessary findings about the job's
mental demands. We disagree.
The ALJ established Gutierrez's RFC, recounted VE Hurst's testimony that
Gutierrez's production-assembler job involved light and unskilled work that "was very
repetitious with few changes,†Aplt. App., Vol. I at 34, and then compared Gutierrez's
RFC to the demands of the job, determining that Gutierrez could meet those demands.
An ALJ may rely on a VE's testimony to establish the demands of a claimant's past work
so long as that assessment does not occur "in the VE's head,†leaving "nothing [for this
court] to review,†Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996). See Doyal v.
Barnhart, 331 F.3d 758, 761 (10th Cir. 2003) (holding that ALJ did not improperly
delegate his duties to the VE where "he quoted the VE's testimony approvingly, in
support of his own findingsâ€). Here, the ALJ made sufficient findings on the mental
demands of Gutierrez's past work
Outcome:
We affirm the district court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of Mario J. Gutierrez v. Commissioner, SSA?
The outcome was: We affirm the district court’s judgment.
Which court heard Mario J. Gutierrez v. Commissioner, SSA?
This case was heard in <center><h4><b> UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT </b> <br> <font color="green"><i>On appeal from The United States District Court for the District of Utah - Salt Lake City </i></font></center></h4>, CO. The presiding judge was Joel M. Carson III.
Who were the attorneys in Mario J. Gutierrez v. Commissioner, SSA?
Plaintiff's attorney: United States Attorney’s Office. Defendant's attorney: Denver, CO - Best Social Security Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800.
When was Mario J. Gutierrez v. Commissioner, SSA decided?
This case was decided on December 20, 2021.