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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Honorable R. Brooke Jackson

Civil Action No. 11-cv-02387-RBJ

VERONICA A. TREVIZO,

Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant.

ORDER

This matter is before the Court on review of the Commissioner’s decision denying 

plaintiff Veronica A. Trevizo’s application for Disability Insurance Benefits pursuant to Title II 

of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). This dispute became 

ripe for decision by this Court upon the filing of plaintiff’s Reply Brief on March 20, 2012. The 

Court apologizes to the parties for the delay in resolving the case.

Facts

At the time Ms. Trevizo filed for disability insurance benefits she was a twenty-four year 

old mother of two who had never worked and still lived with her mother. Ms. Trevizo left school 

in ninth grade and did not complete her GED. In June 2009 Ms. Trevizo was diagnosed with 

Multiple Sclerosis (MS), and following that diagnosis, she filed for Social Security disability 

insurance benefits in October 2009 alleging disability due to MS and illiteracy. A hearing was 

held in November 2010. The ALJ determined that Ms. Trevizo suffered from two severe 

impairments: multiple sclerosis and a learning disorder.

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Multiple Sclerosis

In June 2009 Ms. Trevizo was admitted to the emergency room with sudden onset facial 

numbness. Ms. Trevizo also suffered from tingling and numbness in her lower extremities and 

loss of balance. R. 231. After completing several examinations, doctors determined that Ms. 

Trevizo suffered from MS. Unfortunately, the record is fairly sparse regarding details of Ms. 

Trevizo’s symptoms and treatment of her MS. There are notes from the emergency room when 

she was admitted to the hospital in the summer of 2009, and a few notes from a neurologist, Dr. 

Gamuac, from early 2010. On February 18, 2010 Dr. Gamuac noted that Ms. Trevizo was not in 

acute distress, was alert, oriented, and her memory was intact. R. 232. He also included in his 

impressions that she was clinically stable but suffered from chronic pain and short-term memory 

loss. Id. Similarly, on March 16, 2010 Dr. Gamuac found Ms. Trevizo to be clinically stable but 

suffering from chronic pain. Id. Dr. Gamuac also completed a form describing Ms. Trevizo’s 

restrictions. R. 286-88. On this form, Dr. Gamuac opined that Ms. Trevizo could lift/carry less 

than 10 pounds occasionally, could sit for less than one hour at a time and 2-3 hours in an eight

hour work day, could stand for less than one hour at a time and 2-3 hours in an eight hour 

workday, and would need to lie down 3-4 times per day for 15 to 20 minutes. Id.

At the hearing, Ms. Trevizo testified that she had trouble with fatigue, sitting, standing, 

and walking. R. 33. Ms. Trevizo explained that she could sit for about 30 minutes, stand for 

about 20 minutes, and lift about 5 pounds. R. 34. She explained that she goes to her children’s 

school to volunteer once every week or two and takes walks around the block in the summer. R. 

37. Ms. Trevizo also said that she had to lay down multiple times a day, because she would get 

light-headed or dizzy. R. 43. At the time of the hearing, Ms. Trevizo said that Dr. Gamuac was 

her primary doctor for her MS, and that she had been seeing him for 8-9 months. R. 39. 

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Learning Disability

Ms. Trevizo testified that she does not have a treating physician or psychologist for her 

learning disability. R.39. Instead, two consultative exams were performed. Brett Valette, Ph.D. 

performed a consultative psychological examination on Ms. Trevizo in December 2009. He 

found that her affect was appropriate, her organization and character of speech were clear, her 

thought process was clear, but that she had very poor verbal skills. R. 219. Dr. Valette 

measured Ms. Trevizo’s performance on the Wechsler Adult Intelligence Scale and found that 

she fell in the low end of the low average range of intellectual abilities. R. 219-20. Ms. Trevizo 

had difficulties with verbal comprehension and working memory and her lowest score was in

abstract thinking. R. 220. Dr. Valette opined that Ms. Trevizo suffered from a major learning 

disability, and that she was illiterate. Id. He assigned her a Global Assessment of Functioning

(GAF) score of 65.

Jose Vega, Ph. D. examined Ms. Trevizo in October 2010. Dr. Vega opined that Ms. 

Trevizo functions within the borderline to low average range of intelligence and also has a 

learning disability. R. 282. After administering a Mini Mental Status Examination, Dr. Vega 

explained that Ms. Trevizo’s neurocognitive functioning was impaired. R. 281. He found that 

she was able to follow a single step command but would have trouble following multi-step 

commands. He found that her GAF score was 50-55 and she had marked to extreme limitations 

in functioning. R. 283.

James Wanstrath, Ph. D., a state agency psychological consultant also assessed Ms. 

Trevizo’s learning disability. He opined that her learning disability caused no restriction in daily 

living, mild difficulties in maintaining social functioning, and moderate difficulties in 

maintaining concentration. R. 59-60.

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At the hearing, Ms. Trevizo testified that she had trouble reading and writing. R. 32. She 

said that she could sign her name and read little words, but that she was unable to read a 

newspaper or write a grocery list. Id. She explained that her seven year old now reads better 

than she does. R. 45. Ms. Trevizo said that she could add and subtract numbers but could not 

multiply or divide. R. 42-43. Finally, Ms. Trevizo testified that she forgets a lot of things and 

struggles to stay in conversations because she forgets what was said. R. 45.

Administrative Law Judge’s Opinion

In her opinion, administrative law judge Kathryn D. Burgchardt applied the five step 

analysis mandated by social security regulations to determine whether Ms. Trevizo is disabled. 

At the first step she determined that Ms. Trevizo was not engaged in substantial gainful activity 

since the date of Ms. Trevizo’s disability benefits application. At the second step the ALJ 

determined that Ms. Trevizo suffered from two severe impairments: multiple sclerosis and a 

learning disorder. At the third step the ALJ determined that Ms. Trevizo did not have an 

impairment or combination of impairments that met or medically equaled those listed in 20 CFR 

Part 404, Subpart P, Appendix 1. 

Before going on to the fourth step, the ALJ assessed Ms. Trevizo’s residual functional 

capacity (RFC). The ALJ found that Ms. Trevizo could perform simple unskilled work with the 

following additional limitations: lift or carry up to 10 pounds frequently and 20 pounds 

occasionally, stand or walk with normal breaks for a total of 6 hours in an 8 hour workday, and 

sit with normal breaks for a total of 6 hours in an 8 hour workday. The ALJ also found that the 

Ms. Trevizo should avoid unprotected heights, moving machinery, extreme heat, wetness, and 

humidity. The ALJ also found that Ms. Trevizo is limited to only simple reading, writing, and 

math. R. 17.

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In arriving at this RFC, the ALJ considered the record as a whole as well as Ms. 

Trevizo’s testimony. The ALJ determined that Ms. Trevizo’s impairments could reasonably be 

expected to cause the alleged symptoms, but her statements concerning “the intensity, 

persistence, and limiting effects of these symptoms are not credible to the extent they are 

inconsistent with the above residual functional capacity assessment.” R. 18. The ALJ explained 

that “Dr. Gamuac has concluded that the claimant is limited to less than sedentary work, but this 

is not given great weight because it is inconsistent with his treatment notes which show her 

condition is compatible with the ability to work. Overall, the evidence shows the claimant is 

capable of performing light work as set forth above.” Id. 

When examining the restrictions caused by Ms. Trevizo’s learning disability, the ALJ did 

not give Dr. Vega’s conclusions great weight, because she determined that they were not 

consistent with the evidence including his written narrative and GAF of 50-55. R. 19. The ALJ 

gave “more” weight to Dr. Valette’s findings. Id. The ALJ also gave substantial weight to Dr. 

Wanstrath’s assessment, because it was consistent with the record as a whole. Id. 

After completing the RFC, step four required the ALJ to determine if, based on the 

restrictions in the RFC, Ms. Trevizo would be able to perform past relevant work. The ALJ 

determined that Ms. Trevizo had no past relevant work. R. 19. Therefore, the analysis went to 

step five which required the ALJ to determine whether there are jobs that exist in significant 

numbers that Ms. Trevizo could perform based upon her age, education, work experience, and 

residual functional capacity. Based upon the vocational expert’s testimony, the ALJ determined 

that substantial work existed that Ms. Trevizo was capable of performing. R. 20-21.

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Standard of Review

This appeal is based upon the administrative record and briefs submitted by the parties. 

In reviewing a final decision by the Commissioner, the role of the District Court is to examine 

the record and determine whether it “contains substantial evidence to support the Secretary’s 

decision and whether the Secretary applied the correct legal standards.” Rickets v. Apfel, 16 

F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on substantial evidence if “it 

is overwhelmed by other evidence in the record. . . .” Bernal v. Bowen, 851 F.2d 297, 299 (10th 

Cir. 1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.” 

Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2007). Evidence is not substantial if it

“constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).

Conclusions

Ms. Trevizo appeals the ALJ’s finding of no disability on four grounds: (1) in assessing 

Ms. Trevizo’s RFC, the ALJ improperly imposed her own opinion of Ms. Trevizo’s physical 

impairments over the opinions of experts; (2) the physical restrictions in the RFC are not 

supported by evidence in the record; (3) the ALJ did not properly weigh the conflicting medical 

opinions as to Ms. Trevizo’s learning disability; and (4) the ALJ gave significant weight to Dr. 

Wanstrath’s opinion but did not follow his restrictions. Ms. Trevizo also requests that this Court 

award benefits rather than remand back to the ALJ. 

Restrictions Based on Physical Impairments

The record was rather sparse concerning Ms. Trevizo’s physical impairments caused by 

her MS. It included notes from when she was admitted to the hospital in the summer of 2009, a 

few treatment notes from Dr. Gamuac from early 2010, and a worksheet with restrictions

completed by Dr. Gamuac. 

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As the doctor who had been treating Ms. Trevizo for 8-9 months at the time of her 

hearing, Dr. Gamuac was Ms. Trevizo’s treating physician. Treating physicians’ opinions are 

generally given controlling weight. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). 

“The treating physician's opinion is given particular weight because of his unique perspective to 

the medical evidence that cannot be obtained from the objective medical findings alone or from 

reports of individual examinations, such as consultative examinations or brief hospitalizations.” 

Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). 

Despite this standard, the ALJ determined that Dr. Gamuac’s opinion should not be 

“given great weight because it is inconsistent with his treating notes which show her condition is 

compatible with the ability to work.” R. 18. “In choosing to reject the treating physician’s 

assessment, an ALJ may not make speculative inferences from medical reports and may reject a 

treating physician’s 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). Further, the ALJ is not entitled to pick and choose from a 

medical opinion, using only those parts that are favorable to a finding of nondisability. Robinson 

v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). 

Looking at Dr. Gamuac’s treatment notes, there is not substantial evidence to support the 

ALJ’s determination that Dr. Gamuac’s opinion about Ms. Trevizo’s work restrictions are 

inconsistent with his treatment notes. His treatment notes say that she is “stable” and not in 

“acute distress” but they also say that she suffers from “chronic pain.” R. 232. In determining 

that these descriptors are “compatible with the ability to work” in direct contradiction to the 

restrictions described by Dr. Gamuac, the ALJ improperly substituted her lay opinion for the 

opinion of a treating physician. Lax v. Astrue, 489 F.3d 1080, 1089 (10th Cir. 2007). 

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Further, there are no other medical opinions or other evidence in the record to support the 

ALJ’s conclusions about Ms. Trevizo’s RFC, including that she can stand for six hours in an 

eight hour work day, sit for six hours in an eight hour work day, and does not need to lie down at 

all during a work day. “The ALJ must make specific findings as to RFC, and these findings must 

be supported by substantial evidence.” Adkins v. Barnhart, 80 Fed. App’x 44, 48 (10th Cir. 

2003). An ALJ is required to “make every reasonable effort to ensure that the file contains 

sufficient evidence to assess RFC.” Id. Upon determining that Dr. Gamuac’s opinion was not 

entitled to controlling weight, the ALJ had an obligation to develop the record. “Finding no 

substantial evidence upon which to base an RFC finding, the ALJ should have recontacted the 

claimant’s physicians. If additional records do not exist or are insufficient to clarify the 

inconclusive evidence already in the record, then the ALJ should order a consultative 

examination.” Id. (citations omitted). On remand, the ALJ needs to develop the record so that 

substantial evidence exists to support Ms. Trevizo’s RFC.

Restrictions Based on Learning Disability

In his opinion, Dr. Vega concluded that Ms. Trevizo has marked to extreme limitations in 

functioning. R. 283. However, the ALJ did not give “great weight” to Dr. Vega’s opinion 

because it was “inconsistent with the evidence including his own written narrative and GAF 

score of 50-55.” R. 19. Ms. Trevizo argues that the ALJ was not qualified to assess whether Dr. 

Vega’s opinion was consistent with a GAF of 50-55. I agree. “[A]n ALJ cannot substitute her 

lay opinion for that of a medical professional.” Lax v. Astrue, 489 F.3d 1080, 1089 (10th Cir. 

2007). An ALJ is not qualified to interpret test data in contradiction of a medical professional’s 

own interpretation. See id. If the ALJ is not confident that Dr. Vega’s assessment that Ms. 

Trevizo suffers from marked to extreme limitations in functioning is consistent with the GAF 

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score of 50-55, the ALJ needs to either contact Dr. Vega to clarify or seek an expert opinion. 

McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (holding ALJ had an obligation to 

recontact treating physician if validity of his report was in question). 

Ms. Trevizo also challenges the ALJ’s reliance on Dr. Wanstrath’s opinion. Robinson v. 

Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). As a non-examining, consulting medical 

opinion, Dr. Wanstrath’s opinion was entitled to less weight than the opinions of treating 

physicians or examining physicians. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 

2004). Although a non-treating medical source’s opinion is typically accorded less weight than 

treating source opinions, an ALJ can still consider these opinions. 20 C.F.R. § 416.927(e). If the 

ALJ does accord the consultant’s opinion weight, it is important that the ALJ evaluate the 

findings using factors including the consultant’s medical specialty and expertise, supporting 

evidence in the case record, supporting explanations the consultant provides, and any other 

factors relevant for weighing opinions. 20 C.F.R. § 416.927(e)(2)(ii). 

In her opinion, the ALJ found that Dr. Wanstrath’s opinion should be accorded 

“substantial weight” because “he is an acceptable medical source and his conclusion is consistent 

with the record as a whole.” R. 19. This is a lot of weight to give Dr. Wanstrath’s opinion 

compared to the weight she gave the two examining sources. The ALJ gave Dr. Vega’s opinion 

“little weight,” and she did not specify how much weight she gave Dr. Valette’s opinion, only 

that it was accorded “more weight” than Dr. Vega’s opinion. Id. This is not enough information 

to understand the weight given or the reasons for those weights. On remand, if the ALJ again 

determines that it is appropriate to assign Dr. Wanstrath’s opinion substantial weight, she needs

to first clarify what weight she assigned to Dr. Valette’s opinion, and then explain how the 

factors listed above support assigning so much weight to Dr. Wanstrath’s opinion. 

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Remand

Ms. Trevizo argued that instead of remanding her case back to the ALJ, that this Court 

should award benefits. “Outright reversal and remand for immediate award of benefits is 

appropriate when additional fact finding would serve no useful purpose.” Dollar v. Bowen, 821 

F.2d 530, 534 (10th Cir. 1987). At this point, there are numerous gaps in the record that require 

filling before an award of benefits is appropriate. Therefore, the better course is to remand this 

case back to the ALJ for additional fact finding and explanation consistent with this opinion.

Order

The decision of the ALJ is reversed. The case is remanded to the Commissioner for 

proceedings consistent with this order, namely that she develop a sufficient record on which to 

assess Ms. Trevizo’s RFC.

DATED this 11th day of March, 2013.

BY THE COURT: 

___________________________________

R. Brooke Jackson

United States District Judge

 

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