IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-2303-WJM

ANITRA H. MONTANO,

Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant.

ORDER AFFIRMING ALJ’S DENIAL OF BENEFITS

THIS MATTER is before the Court on review of the Commissioner’s decision

which denied Plaintiff’s application for supplemental security income pursuant to the

Social Security Act (“the Act”), 42 U.S.C. § 401 et seq. Jurisdiction is proper under 42

U.S.C. § 405(g). For the reasons set forth below, the Commissioner’s decision denying

Plaintiff’s application for Social Security benefits is AFFIRMED.

I. BACKGROUND

Plaintiff Anitra H. Montano (“Plaintiff”) was born on February 20, 1987. (Admin.

Record (“AR”) p. 28.) Plaintiff attended school through the ninth grade and was

primarily in special education classes. (Id. at 29.) Plaintiff has no relevant prior work

experience but is a single mother to five children under the age of ten. (Id. at 36.) 

On January 29, 2009, Plaintiff filed an application for disability benefits alleging

disability beginning May 21, 2002. (AR at 9.) Plaintiff’s claim was heard by the 

Administrative Law Judge Kathryn D. Burgchardt (“ALJ”) on September 29, 2010. (Id.) 

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The five-step process requires the ALJ to consider whether a claimant: (1) engaged in 1

substantial gainful activity during the alleged period of disability; (2) had a severe impairment;

(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to

her past relevant work; and, if not, (5) could perform other work in the national economy. See

20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.

1988.) The claimant has the burden of proof through steps one to four; the Social Security

Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th

Cir. 2007).

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Plaintiff and vocational expert Dennis J. Duffin testified at the hearing. (Id.) 

On November 22, 2010, the ALJ issued a written decision in accordance with the

Commissioner’s five-step sequential evaluation process. At step one, the ALJ found 1

that Plaintiff had not engaged in substantial gainful activity since January 29, 2009. 

(AR at 11.) At step two, she found that Plaintiff suffered from the following severe

impairments: status post right hip open reduction, headaches, dysthmia, and borderline

intellectual functioning. (Id.) At step three, the ALJ found that Plaintiff’s impairments,

while severe, did not meet any of the impairments or combination of impairments listed

in the social security regulations. (Id. at 12.) At step four, the ALJ found that Plaintiff

had the residual functional capacity (“RFC”) to perform “light” work as defined by the

regulations, including lifting up to 20 pounds occasionally and 10 pounds frequently;

sitting, standing, and walking for approximately 6 hours in an 8-hour workday; could

perform pushing and pulling motions with upper and lower extremities; could

occasionally climb, kneel, or crouch; should avoid unprotected heights and moving

machinery; should be restricted to a “clean” work environment, meaning low level of

pollutants; and should avoid high concentrated noises. (Id. at 13.) Given this RFC, at

step five, the ALJ found that there were significant numbers of jobs in the national

economy that Plaintiff could perform. (Id. at 17.) Accordingly, the ALJ found that

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Plaintiff was not disabled within the meaning of the Act and, thus, not entitled to

benefits. (Id. at 18.) 

The Appeals Council denied Plaintiff’s request for review on July 7, 2011. (Id. at

1.) Plaintiff then filed this action seeking review of the Commissioner’s decision. 

II. STANDARD OF REVIEW

The Court reviews the Commissioner’s decision to determine whether substantial

evidence in the record as a whole supports the factual findings and whether the correct

legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 

Substantial evidence is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a

preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Evidence is not

substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart,

399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision,

the Court may neither reweigh the evidence nor substitute its judgment for that of the

agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, 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).

III. ANALYSIS

On appeal, Plaintiff argues that the ALJ made several errors:

1. The ALJ did not properly weigh the opinions of Plaintiff’s mental impairment; 

2. The ALJ did not properly consider Plaintiff’s migraine headaches;

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3. The ALJ’s RFC does not properly address Plaintiff’s mental impairment; 

4. The ALJ did not properly evaluate the examining physician’s opinion; 

5. The ALJ’s analysis at Step Three was erroneous; 

6. The ALJ did not properly consider Plaintiff’s mother’s testimony; and

7. The ALJ failed to properly assess an educational opinion.

The Court will address these arguments below. 

A. The ALJ’s Step Three Analysis

At Step Three, the ALJ found that Plaintiff’s impairments did not meet or

medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (AR at 12.) Plaintiff contends that the ALJ’s finding that Listing 12.05(C)

did not apply was erroneous. (Pl.’s Br. at 10.) 

To show that an impairment or combination of impairments meets the

requirements of a listing, a claimant must provide specific medical findings that support

each of the various requisite criteria for the impairment. See 20 C.F.R. §§ 404.1525,

416.925 (2006). Listing 12.05, Mental Retardation, states:

[m]ental retardation refers to significantly subaverage

general intellectual functioning with deficits in adaptive

functioning initially manifested during the developmental

period; i.e., the evidence demonstrates or supports onset of

the impairment before age 22. 20 C.F.R., pt. 404, subpt. P,

App. 1, § 12.05 (2006).

This is what is commonly referred to as the “capsule definition” for this listing. In

addition to meeting this capsule definition, a claimant must also meet one of the four

severity prongs for mental retardation as listed in the regulations. Plaintiff contends that

she had evidence showing that she satisfied subpart C, which states: “A valid verbal,

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performance, or full scale IQ of 60 through 70 and a physical or other mental

impairment imposing an additional and significant work-related limitation of function.” 

See 20 C.F.R., pt. 404, subpt. P, App. 1, § 12.05(C) (2006). 

The ALJ found that subpart C did not apply because Plaintiff did not have an IQ

score between 60 and 70. (AR at 12-13.) Plaintiff contends that this finding was clearly

erroneous because an IQ test performed by Jan Dutton, MA, LPC resulted in a score of

68. (Pl.’s Br. at 10-11.) While Plaintiff’s argument correctly points to a portion of the

administrative record, it ignores two other IQ tests which showed that Plaintiff had an IQ

in the 70s. (AR 215-17, 380-82.) As Defendant points out, the two tests showing an IQ

of higher than 70 were performed by licensed psychologists, which are acceptable

medical sources, while the one test showing an IQ of lower than 70 was performed by a

counselor, which is not an acceptable medical source. (Def.’s Br. at 14.) Faced with

conflicting evidence regarding Plaintiff’s IQ, the ALJ was entitled to credit the two higher

test scores over the lower one. As there is sufficient evidence in the record to support

the ALJ’s finding that Plaintiff’s IQ was not between 60 and 70, the Court cannot

conclude that this finding is clearly erroneous. See Salazar, 468 F.3d 621 (district court

may not reweigh the evidence). 

Accordingly, the Court concludes that Plaintiff has failed to show that the ALJ

erred in finding that Plaintiff’s impairments did not meet or medically equal any of the

listings at Step Three. 

B. Plaintiff’s Mother’s Statement

Plaintiff’s mother submitted a written statement about how Plaintiff’s car accident

in 2002 affected her functioning. (AR 193-95.) The ALJ stated that she considered this

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statement but gave it “little, if any, weight” because Plaintiff’s mother has no medical

training and because, by virtue of her relationship to Plaintiff, her opinion is likely to be

biased. The ALJ also noted that, “[m]ost importantly”, Plaintiff’s mother’s statement

“was simply not consistent with the preponderance of the opinions and observations by

medical doctors in this case.” (AR 16-17.) 

Plaintiff contends that the ALJ’s failure to give any weight to Plaintiff’s mother’s

testimony was error. (Pl.’s Br. at 23-24.) Plaintiff contends that there was no evidence

showing that her mother was biased. (Id.) However, assuming this is true, the ALJ

gave two additional reasons for why she did not afford Plaintiff’s mother’s statement

much weight. The ALJ specifically discounted Plaintiff’s mother’s testimony because it

was inconsistent with the medical record and because Plaintiff’s mother has no medical

training. These are proper bases for declining to give much weight to testimony. See

Bussell v. Astrue, 463 F. App’x 779, 782 (10th Cir. 2012) (affirming ALJ’s failure to give

controlling weight to treating physician’s opinion because it was “inconsistent with other

substantial evidence in the record”). 

“Credibility determinations are peculiarly the province of the finder of fact, and we

will not upset such determinations when supported by substantial evidence.” Diaz v.

Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). Having reviewed

the record, the Court finds that there is substantial evidence supporting the ALJ’s

decision to give little weight to Plaintiff’s mother’s statement. Accordingly, the Court

rejects Plaintiff’s contention that the ALJ erred by failing to give significant weight to

Plaintiff’s mother’s statement.

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C. Kiki Medina’s Statement

In support of her application for benefits, Plaintiff submitted a statement from Kiki

Medina, the director of the GED program at Otero Junior College. (AR 196.) The ALJ

reviewed this statement but gave it no weight because “it was not prepared by an

acceptable source, was inconsistent with the medical evidence, and asserted to

vocational limitations.” (Id. at 16.) 

Plaintiff contends that the ALJ erred in giving no weight to Ms. Medina’s

statement. (Pl.’s Br. at 38-39.) Plaintiff admits that Ms. Medina is not an “acceptable

source” but argues that the ALJ’s failure to give her opinion any weight on this basis is

nonetheless error. (Id.) The Court disagrees. As with Plaintiff’s mother’s statement,

the ALJ set forth specific reasons for why she did not give weight to Ms. Medina’s

statement. The Court concludes that there is sufficient evidence in the record to

support this finding and, therefore, cannot say that it was clearly erroneous. See

Nichols v. Astrue, 341 F. App’x 450, 453-54 (10th Cir. 2009) (so long as ALJ provides

“good reasons for giving little weight to the [non-medical] opinion”, there is no error).

D. Adequacy of the RFC

Plaintiff raises two issues with respect to the ALJ’s RFC: (1) that it does not

properly account for her headaches; and (2) that it does not properly account for her

mental impairment. 

The RFC is an assessment of the most a claimant can do despite his or her

limitations. 20 C.F.R. § 404.1545(a)(1). The RFC assessment is made by the ALJ

“based on all the relevant evidence in [the claimant’s] case record.” Id. Examples of

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the types of evidence required to be considered in making an RFC assessment are the

claimant’s medical history, medical signs and laboratory findings, and medical source

statements. Soc. Sec. Ruling (SSR) 96-8p (July 2, 1996).

Plaintiff contends that the ALJ’s RFC does not adequately account for her

migraine headaches. (Pl.’s Br. at 32-34.) Specifically, Plaintiff argues that despite

finding that Plaintiff’s headaches are a severe impairment, the ALJ “did not include any

headache related limitation in her RFC finding.” (Id. at 21.) The Court disagrees. The

RFC states that Plaintiff “should be restricted to a ‘relatively clean’ work environment,

meaning low levels of pollutants” and that Plaintiff “should avoid high concentrated

noise.” (AR 13.) These restrictions are directly related to evidence in the record

showing that exposure to noise, fumes, and odors should be avoided as a headache

precaution. (Id. at 345.) Thus, the Court finds that the ALJ’s RFC adequately

accounted for Plaintiff’s headaches. 

Plaintiff also argues that the RFC does not properly account for her mental

impairments. Plaintiff contends that, despite giving “great weight” to the opinions of Drs.

Hanze and Benson, the ALJ “ignored” some of their recommendations and did not

include these limitations in her RFC. (Pl.’s Br. at 23.) However, the ALJ did not simply

ignore Drs. Hanze and Benson’s recommendations. She noted that the more marked

limitations expressed by these physicians were inconsistent with the fact that Plaintiff

lives independently and raises five small children on her own. (AR at 15-16.) The

Court finds that there is sufficient evidence in the record for discounting the more

significant limitations contained in Drs. Hanze and Benson’s opinions. Therefore, the

failure to credit these opinions was not error. See Qualls v. Apfel, 206 F.3d 1368, 1372

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(10th Cir. 2000) (In fashioning an RFC, an ALJ is only required to include limitations

that are supported by the record). 

Plaintiff next contends that the ALJ’s RFC failed to account entirely for her

mental impairments. (Pl.’s Reply Br. at 19.) The Court disagrees. The ALJ found that

Plaintiff could only perform simple, unskilled work such as a fast-food worker or an

assembler. (AR 13, 17-18.) These positions do not require an employee to understand

and remember detailed instructions or complex procedures, which are the more mild

limitations expressed by Drs. Hanze and Benson. The ALJ’s failure to specifically

discuss each of these doctors’ opinions is not error. See Barber v. Astrue, 431 F. App’x

709, 712 (10th Cir. 2011) (where medical provider’s opinions are ultimately included in

RFC, ALJ has no duty to explain how she weighed the opinion). Accordingly, the Court

rejects Plaintiff’s contention that the RFC failed to properly account for Plaintiff’s mental

impairment. 

E. Weighing of Medical Opinions

Plaintiff argues that the ALJ erred in failing to properly weigh medical opinions

provided by Drs. Campbell and Patterson. 

In fashioning an RFC, the Commissioner is required to consider all relevant

medical opinions. 20 C.F.R. § 404.1527(d). “Medical opinions are statements from

physicians and psychologists or other acceptable medical sources that reflect

judgments about the nature and severity of [claimant’s] impairment(s) including

[claimant’s] symptoms, diagnosis and prognosis, what [claimant] can still do despite

impairment(s), and [claimant’s] physical or mental restrictions.” 20 C.F.R. §

404.1527(a)(2). The Commissioner must weigh all of the following factors in deciding

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the weight to give each proffered medical opinion: (1) length of treatment relationship

and frequency of 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. 

Id., § 404.1527(d); see also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir.

2001). However, the ALJ need not expressly address each of these factors. Oldham v.

Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). 

After considering the requisite factors, the administrative law judge must “give

good reasons” for the weight ultimately assigned to the opinion. 20 C.F.R. §

404.1527(d)(2). “Finally, if the [administrative law judge] rejects the opinion completely,

he must then give specific, legitimate reasons for doing so.” Watkins v. Barnhart, 350

F.3d 1300, 1301 (10th Cir. 2003) (internal quotation marks omitted). 

Plaintiff contends that the ALJ erred by giving “little, if any, weight” to the form

completed by Dr. Patterson which showed that Plaintiff had some areas of marked

impairment. (Pl.’s Br. at 16-18.) The Court disagrees. The ALJ stated that she was

discounting the weight attributed to Dr. Patterson’s form because the limitations

contained therein were inconsistent with Dr. Patterson’s more detailed narrative report. 

(AR at 15.) The Tenth Circuit has held that this is a proper reason for rejecting a

medical opinion. White v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 2002). 

Plaintiff also argues that the ALJ erred by substituting her lay opinion for that of

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 The Court notes that Dr. Patterson is not considered a “treating source” for purposes 2

of 20 C.F.R. § 404.1527(c)(2). 

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Dr. Patterson. (Pl.’s Br. at 19.) However, there is no indication that the ALJ did this. 

There was conflicting evidence in the record about the severity of Plaintiff’s mental

impairment and the fact that the ALJ credited some medical opinions over others is not

error. Moreover, as discussed above, the ALJ gave explicit reasons for discounting the

impairments listed by Dr. Patterson and, therefore, Plaintiff has failed to show any

error. Doyal, 331 F.3d at 764 (affirming decision to give little weight to non-treating 2

physician based on inconsistency of opinion with the record as a whole).

Finally, Plaintiff contends that the ALJ erred by giving “little, if any, weight” to the

medical restrictions recommended by Dr. Campbell. Having reviewed the record, the

Court sees no error here. The ALJ found that Dr. Campbell’s opinions “were based

largely upon claimant’s self-reports and were not consistent with the longitudinal

record.” (AR at 16.) The ALJ also noted that Dr. Campell’s assessment “was

unsupported by treatment notes and, in fact was contrary to other treating and

examining providers.” Plaintiff takes issue only with the ALJ’s finding regarding the fact

that Dr. Campbell’s opinions were primarily based on Plaintiff’s self-reporting. (Pl.’s

Reply Br. at 23.) Even if the Court assumes that the ALJ got it wrong in this respect

and Dr. Campbell’s opinion was not based on Plaintiff’s self-reporting, the ALJ gave two

alternate reasons for giving Dr. Campbell’s opinion little weight. (AR at 16.) Having

reviewed the record, the Court concludes that there is substantial evidence to support

the ALJ’s finding that Dr. Campbell’s assessment was unsupported by treatment notes

and contrary to other treating and examining providers. As such, the ALJ’s decision to

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not give Dr. Campbell’s medical opinion significant weight is not error. Doyle, 331 F.3d

at 764. 

IV. CONCLUSION

For the reasons set forth above, the ALJ’s denial of benefits is AFFIRMED. 

Dated this 26th day of December, 2012.

BY THE COURT:

 

William J. Martínez 

United States District Judge

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