UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DIANE MARTINEZ, 

 Plaintiff - Appellant, 

v. 

COMMISSIONER, SSA, 

 Defendant - Appellee. 

No. 18-1218 

(D.C. No. 1:16-CV-2938-CMA) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, McKAY, and LUCERO, Circuit Judges. 

_________________________________ 

Diane Martinez appeals from the district court’s order denying her application 

for Social Security disability benefits and supplemental security income benefits. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. 

I. BACKGROUND 

Ms. Martinez applied for disability insurance benefits and supplemental 

security income asserting that she was disabled due to a wrist injury, elbow and 

shoulder problems, back pain, boils, abdominal pain, insomnia, anxiety, and 

 * After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 28, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

depression. After her claims were denied initially and on reconsideration, an 

administrative law judge (ALJ) considered her claims and issued a decision finding 

Ms. Martinez was not disabled at the fifth and final step of the sequential evaluation 

used to assess social security disability claims. See 20 C.F.R. § 404.1520(a)(4) 

(describing five-step process).1

 

The ALJ determined that Ms. Martinez had a number of medically 

determinable severe impairments, including two severe physical impairments—

lumbar degenerative disc disease and history of right wrist fracture—and two severe 

mental impairments—affective disorder and anxiety disorder. The ALJ further found 

that Ms. Martinez’s severe physical and mental impairments did not, individually or 

in combination, meet or equal the conclusively disabling impairments in the Listing 

of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix I. As required by 

the sequential process, the ALJ then defined Ms. Martinez’s residual functional 

capacity (RFC), finding that she could “perform light work . . . except that [she] can 

only occasionally bend, squat and kneel, cannot climb ladders/scaffolds, and can 

frequently handle/finger” and “requires unskilled work that involves no complex 

tasks . . . and cannot deal with the general public.” Aplt. App., Vol. I at 22. 

Based on the testimony of a vocational expert, the ALJ found that 

Ms. Martinez could not perform her past relevant work, but still retained the ability 

 1

 In this order and judgment, we cite to relevant regulations in 20 C.F.R. Part 

404, which apply to claims for disability insurance benefits. We do not, however, 

include citations to the parallel provisions published in 20 C.F.R. Part 416, which 

apply to claims for supplemental security income. 
3 

to perform other work that existed in substantial numbers in the national economy 

and was therefore not disabled. The Appeals Council denied review of the ALJ’s 

decision, and the district court affirmed. This appeal followed. 

II. STANDARD OF REVIEW 

“We review 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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) 

(internal quotation marks omitted). 

Substantial evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. It requires more than a scintilla, 

but less than a preponderance. We consider whether the ALJ followed the 

specific rules of law that must be followed in weighing particular types of 

evidence in disability cases, but we will not reweigh the evidence or 

substitute our judgment for the Commissioner’s. 

Id. (citations and internal quotation marks omitted). 

Moreover, “[t]he possibility of drawing two inconsistent conclusions from the 

evidence does not prevent an administrative agency’s findings from being supported 

by substantial evidence.” Id. (internal quotation marks omitted). “We may not 

displace the agency’s choice between two fairly conflicting views, even though the 

court would justifiably have made a different choice had the matter been before it 

de novo.” Id. (brackets and internal quotation marks omitted). 
4 

III. ANALYSIS 

A. Opinion Evidence 

Ms. Martinez argues that the ALJ’s determination that she was not disabled is 

erroneous because he improperly weighed several medical opinions. We disagree. 

The ALJ was required to consider all the medical source opinions regarding 

Ms. Martinez’s claimed impairments—physical and mental. See 20 C.F.R. 

§ 404.1527(c) (“Regardless of its source, [the ALJ] will evaluate every medical 

opinion [he] receive[s].”). 

Under § 404.1527(c)(2), 

[i]f [the ALJ] find[s] that a treating source’s medical opinion on 

the issue(s) of the nature and severity of your impairment(s) is 

well-supported by medically acceptable clinical and laboratory 

diagnostic techniques and is not inconsistent with the other substantial 

evidence in [the] case record, [the ALJ] will give it controlling weight. 

See also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Conversely, 

“if the [treating physician’s medical] opinion is deficient [because it is not 

well-supported or is inconsistent with other substantial evidence in the record], then 

it is not entitled to controlling weight.” Id. 

“Unless [the ALJ] give[s] a treating source’s medical opinion controlling 

weight . . . , [the ALJ will] consider [six regulatory] factors in deciding the 

weight . . . [to] give to any medical opinion,” § 404.1527(c) (emphasis added), 

including a treating source’s opinion. In other words, “resolving the controlling 

weight issue does not end our review.” Watkins, 350 F.3d at 1300 (internal quotation 

marks omitted). Instead, if the ALJ determines the treating source’s opinion is not 
5 

entitled to controlling weight, the ALJ must consider the regulatory factors in 

§ 404.1527(c)(2)-(6) to determine what weight to assign to the opinion. 

Those factors are: (1) the length of the treatment relationship and the 

frequency of the examination; (2) the nature and extent of the treatment 

relationship, including the treatment provided and the kind of examination 

or testing performed; (3) the degree to which the physician’s opinion is 

supported by relevant evidence; (4) consistency between the opinion and 

the record as a whole; (5) whether or not the physician is a specialist in the 

area upon which an opinion is rendered; and (6) other factors brought to the 

ALJ’s attention which tend to support or contradict the opinion. 

Watkins, 350 F.3d at 1300-01 (internal quotation marks omitted). 

 As an overarching principle, the ALJ should “[g]enerally . . . give 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].” 

§ 404.1527(c)(1). Nonetheless, “[a]n opinion found to be an examining rather than 

treating medical-source opinion may be dismissed or discounted,” so long as the ALJ 

bases the decision “on an evaluation of all the factors set out in [§ 404.1527(c)] and 

[he] . . . provide[s] specific, legitimate reasons for rejecting it.” Chapo v. Astrue, 

682 F.3d 1285, 1291 (10th Cir. 2012) (internal quotation marks omitted). 

B. Physical Impairments 

 1. Dr. Gregg 

Dr. Tammy Gregg was Ms. Martinez’s treating physician. Between August 

2011 and April 2015, Dr. Gregg periodically filled out check-box forms for 

Ms. Martinez’s participation in a local work program. On these forms, Dr. Gregg 

consistently indicated, among other things, that Ms. Martinez could occasionally lift 
6 

ten pounds, but could never lift twenty-five pounds. In January 2015, Dr. Gregg 

completed a form at the request of Ms. Martinez’s attorney indicating that 

Ms. Martinez could lift and carry five pounds occasionally, sit for four hours per day, 

and stand for no longer than two hours per day, among other restrictions. 

 The ALJ assigned “very little weight” to Dr. Gregg’s opinions because they 

were inconsistent with the record and unsupported by objective findings. But the 

ALJ’s analysis did not stop there. Although the ALJ did not specifically cite 

§ 404.1527(c), he clearly had the regulatory factors in mind when he weighed 

Dr. Gregg’s statements. 

 Section 404.1527(c)(3) provides: “The more a medical source presents 

relevant evidence to support a medical opinion, particularly medical signs and 

laboratory findings, the more weight [the ALJ] will give that medical opinion.” 

Further, “[t]he better an explanation a source provides for a medical opinion, the 

more weight we will give that medical opinion.” Id. 

In this regard, the ALJ explained that there was no objective evidence to 

support Dr. Gregg’s statements. For example, the ALJ noted that Dr. Gregg’s 

check-box forms were not supported by objective findings and lacked detail. Further, 

the ALJ found that Dr. Gregg based her “extreme assessed limitations . . . on a 

thoracic sprain but she failed to cite any objective findings.” Aplt. App., Vol. 1 

at 24. Moreover, the ALJ noted that Ms. Martinez had only “mild restriction” in her 

activities of daily living. Id. at 22. 
7 

Section 404.1527(c)(4) provides: “Generally, the more consistent a medical 

opinion is with the record as a whole, the more weight we will give to that medical 

opinion.” Relevant here, the ALJ noted that Dr. Gregg’s severe restrictions did not 

jibe with the medical evidence because, among other things, “imaging of the thoracic 

spine and cervical spine have been normal or unremarkable,” and Ms. Martinez’s 

“back symptoms have been stable, with no radiation of pain.” Aplt. App., Vol. 1 

at 24. We also disagree with Ms. Martinez that the ALJ did not adequately explain 

how the record—as a whole—was inconsistent with Dr. Gregg’s proposed 

restrictions. To the contrary, the ALJ detailed the medical notes and testing 

concerning Ms. Martinez’s wrist and back problems and specifically found that 

Dr. Gregg’s proposed restrictions “are not consistent with the record as [a] whole

and are not supported by objective evidence.” Id. (emphasis added). Instead, the 

ALJ found that “[l]ongitudinally, the medical record supports a limitation to light 

work with occasional bending, squatting and kneeling, and frequent 

handling/fingering.” Id. 

 We conclude that the ALJ’s reasons for affording Dr. Gregg’s opinions “very 

little weight” are supported by substantial evidence. 

2. Dr. Susman 

A State agency consulting physician, Dr. Morris Susman, completed a 

Residual Functional Capacity Assessment, which was based on his review of the 

medical record. Dr. Susman concluded that Ms. Martinez could stand or walk for six 

hours and sit for six hours in a normal eight-hour workday, could perform postural 
8 

activities at least occasionally, and did not have limitations of her fine manipulation 

skills. The ALJ gave Dr. Susman’s opinion “some weight,” because it “is generally 

consistent with [the ALJ’s assessment of Ms. Martinez’s] residual functional 

capacity.” Id. at 23. 

First, Ms. Martinez argues that the ALJ formulated Ms. Martinez’s RFC 

and only then did he search the record for evidence to support it. See 20 C.F.R. 

§ 404.1545(a)(3) (“We will assess your residual functional capacity based on all of 

the relevant medical and other evidence.”). We disagree. The ALJ discussed several 

pieces of evidence, including Dr. Susman’s opinion, and formulated Ms. Martinez’s 

RFC. While the wording is unartful, we are convinced there was no error. 

Second, we agree with Ms. Martinez that the ALJ failed to specifically state 

the reasons for assigning more weight to Dr. Susman’s opinion than to Dr. Gregg’s 

opinions, or otherwise explain the weight he gave Dr. Susman’s opinion. 

Nonetheless, we agree with the Commissioner that this omission does not require us 

to reverse. 

State agency medical consultants are highly qualified experts in Social 

Security evaluation. See § 404.1513a(b)(1). Moreover, “an ALJ’s failure to weigh a 

medical opinion involves harmless error if there is no inconsistency between the 

opinion and the ALJ’s assessment of residual functional capacity.” Mays v. Colvin, 

739 F.3d 569, 578-79 (10th Cir. 2014) (emphasis added). See also Keyes-Zachary v. 

Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (same). Here, the ALJ’s RFC finding 
9 

is consistent with Dr. Susman’s opinion, with the exception of a limitation favorable 

to Ms. Martinez that Dr. Susman did not propose in his opinion. 

C. Mental Impairments 

 1. Dr. Wesley 

Dr. Immaculate Wesley, a consultative psychologist, examined Ms. Martinez 

on one occasion. In her report, she noted her observations and results from several 

tests, and concluded that Ms. Martinez’s “[s]ocial interaction is extremely impaired,” 

and her “abilities as related to basic work activities appear impaired and most likely 

precluded due to the severity of her depression.” Aplt. App., Vol. 2 at 480. 

The ALJ gave “no weight” to Dr. Wesley’s opinion, id. Vol. 1 at 24, however, 

because: (1) there was no evidence of psychiatric treatment or medications; (2) the 

body of Dr. Wesley’s report did not support the level of impairment she suggested; 

(3) Dr. Irwin Matus, a State agency consultant, discounted Dr. Wesley’s report 

because it was based on Ms. Martinez’s self-reports and inconsistent with how she 

presented herself at the examination; and (4) Dr. Matus found only limited 

impairments. 

Regarding the inconsistencies between Dr. Wesley’s report and how 

Ms. Martinez presented herself, the ALJ noted that even though Ms. Martinez “cried 

throughout the examination[,] . . . her speech was of normal rate, rhythm and volume; 

thought processes were logical and coherent; thought content was free of delusions; 

and there were no disorders of perception exhibited.” Id. at 25. “Additionally, 

[Ms. Martinez] was well oriented to all spheres, could name both the current and past 
10 

Presidents correctly, and was able to spell the word ‘world’ backward correctly.” Id. 

The ALJ also noted that Dr. Wesley assessed Ms. Martinez with “[a] GAF score of 

38,”2 id. at 24, which Dr. Wesley said demonstrated “major impairment in all areas of 

functioning, including work, family relations, judgment, thinking and mood,” id. 

Vol. 2 at 479. But the ALJ found that Ms. Martinez “report[ed] no problems getting 

along with family, friends, neighbors or others, and she gets along ‘good’ with 

authority figures.” Id. Vol. 1 at 22. 

As the examining psychologist, Dr. Wesley’s opinion is presumptively entitled 

to more weight than a non-examining medical source. See § 404.1527(c)(1). And 

although an examining opinion may be dismissed or discounted, that determination 

must be based on an evaluation of the factors in § 404.1527(c)(2)-(6), and the ALJ 

“must provide specific, legitimate reasons for rejecting it.” Chapo, 682 F.3d at 1291 

(internal quotation marks omitted). The ALJ did not specifically mention the factors 

in § 404.1527(c)(2)-(6), but he clearly had them in mind when he found that 

Dr. Wesley’s extreme opinion was not well-supported, inconsistent with the record 

as a whole, lacked explanation, and contradicted by how Ms. Martinez presented 

herself. 

The parties agree that the ALJ could not ignore Dr. Wesley’s opinion simply 

because it was based on Ms. Martinez’s self-reports. See Robinson v. Barnhart, 

 2

 The Global Assessment of Functioning, or GAF score, “is a subjective 

determination based on a scale of 100 to 1 of the clinician’s judgement of the 

individual’s overall level of functioning.” Langley v. Barnhart, 373 F.3d 1116, 1122 

n.3 (10th Cir. 2004) (internal quotation marks omitted). 
11 

366 F.3d 1078, 1083 (10th Cir. 2004) (per curiam) (“[A] psychological opinion may 

rest either on observed signs and symptoms or on psychological tests.”). But as 

explained above, the ALJ gave several other legitimate reasons to discount 

Dr. Wesley’s report. 

We conclude that the ALJ’s reasons for affording Dr. Wesley’s opinion 

“no weight” are supported by substantial evidence. 

2. Dr. Matus 

Dr. Matus reviewed Dr. Wesley’s report and the medical record and opined 

that Ms. Martinez’s “[p]sychiatric condition does not preclude all work tasks. 

[Claimant] can perform lower end, moderately complex work tasks.” Aplt. App., 

Vol. 1 at 79. Dr. Matus also disagreed with Dr. Wesley that Ms. Martinez was 

extremely impaired as to social interaction. The ALJ gave “some weight” to 

Dr. Matus’s opinion. Id. at 24. Although Dr. Matus noted no limitations in social 

interaction, the ALJ limited Ms. Martinez “to unskilled work that involves no dealing 

with the general public.” Id. at 25. 

Ms. Martinez argues, and we agree, that the ALJ erred by failing to address 

any of the factors under § 404.1527(c)(2)-(6) in deciding what weight to give 

Dr. Matus’s opinion. Nonetheless, we agree with the Commissioner that this error 

was harmless. As a State agency medical consultant, Dr. Matus is a highly qualified 

expert in Social Security evaluation. See § 404.1513a(b)(1). Moreover, the 

absence of a specific discussion is harmless if there is no inconsistency between the 

opinion and the ALJ’s RFC assessment. See Mays, 739 F.3d at 578-79. See also 
12 

Keyes-Zachary, 695 F.3d at 1163. Here, the ALJ’s RFC finding is generally 

consistent with Dr. Matus’s opinion. 

IV. CONCLUSION 

The judgment of the district court is affirmed. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge