1

 “[#1]” is an example of the convention I use to identify the docket number assigned to a specific

paper by the court’s electronic case filing and management system (CM/ECF). I use this convention

throughout this order.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Action No. 11-cv-02478-REB

LACY A. ESTES,

Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant.

ORDER REVERSING DISABILITY DECISION 

AND DIRECTING AWARD OF BENEFITS

Blackburn, J.

The matter before me is plaintiff’s Complaint [#1],1

 filed September 21, 2011,

seeking review of the Commissioner’s decision denying plaintiff’s claims for disability

insurance benefits and supplemental security income benefits under Titles II and XVI of

the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the

Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully

briefed, obviating the need for oral argument. I reverse the decision and direct an

award of benefits in plaintiff’s favor.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that she is disabled as a result of depression with anxiety, a tear

of the medial meniscus of her left knee, and obesity. After her applications for disability

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insurance benefits and supplemental security income benefits were denied, plaintiff

requested a hearing before an administrative law judge. This hearing was held on

January 13, 2011. At the time of the hearing, plaintiff was 45 years old. She has a high

school general equivalency diploma and past relevant work experience as a home

healthcare provider. She has not engaged in substantial gainful activity since her

amended alleged date of onset, June 15, 2009.

The ALJ found that plaintiff was not disabled and therefore not entitled to

disability insurance benefits or supplemental security income benefits. Although the

medical evidence established that plaintiff suffered from severe physical and mental

impairments, the judge concluded that the severity of those impairments did not meet or

equal any impairment listed in the social security regulations. The ALJ found that

plaintiff had the residual functional capacity to perform unskilled, light work with various

exertional and non-exertional restrictions. Although these limitations precluded

plaintiff’s past relevant work, the ALJ concluded that there were other jobs existing in

significant numbers in the national and local economies that were within his residual

functional capacity. He therefore found plaintiff not disabled at step five of the

sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The

Council affirmed. Plaintiff then filed this action in federal court. 

II. STANDARD OF REVIEW

A person is disabled within the meaning of the Social Security Act only if her

physical and/or mental impairments preclude him from performing both his previous

work and any other “substantial gainful work which exists in the national economy.” 42

U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social

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Security [Act] requires the [Commissioner] to consider the combined effects of the

impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,

1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of

a severe impairment or combination of impairments does not require a finding that an

individual is disabled within the meaning of the Social Security Act. To be disabling, the

claimant’s condition must be so functionally limiting as to preclude any substantial

gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d

335, 338 (10th Cir. 1995). 

The Commissioner has established a five-step, sequential evaluation process for

determining whether a claimant is disabled:

1. The ALJ must first ascertain whether the claimant is

engaged in substantial gainful activity. A claimant who is

working is not disabled regardless of the medical findings.

2. The ALJ must then determine whether the claimed

impairment is “severe.” A “severe impairment” must

significantly limit the claimant’s physical or mental ability to

do basic work activities. 

3. The ALJ must then determine if the impairment meets or

equals in severity certain impairments described in Appendix

1 of the regulations. 

4. If the claimant’s impairment does not meet or equal a listed

impairment, the ALJ must determine whether the claimant

can perform his past work despite any limitations.

5. If the claimant does not have the residual functional capacity

to perform her past work, the ALJ must decide whether the

claimant can perform any other gainful and substantial work

in the economy. This determination is made on the basis of

the claimant’s age, education, work experience, and residual

functional capacity.

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20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th

Cir. 1988). The claimant has the initial burden of establishing a disability in the first four

steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294

n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that

the claimant is capable of performing work in the national economy. Id. A finding that

the claimant is disabled or not disabled at any point in the five-step review is conclusive

and terminates the analysis. Casias v. Secretary of Health & Human Services, 933

F.2d 799, 801 (10th Cir. 1991). 

Review of the Commissioner’s disability decision is limited to determining

whether the ALJ applied the correct legal standard and whether the decision is

supported by substantial evidence. Hamilton v. Secretary of Health and Human

Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,

1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would

accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires

more than a scintilla but less than a preponderance of the evidence. Hedstrom v.

Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is

overwhelmed by other evidence in the record or constitutes mere conclusion.” 

Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “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). 

Although a reviewing court should meticulously examine the record, it may not reweigh

the evidence or substitute its discretion for that of the Commissioner. Id. 

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 Plaintiff does not contest the ALJ’s determination of her physical impairments or the exertional

limitations incorporated into his physical residual functional capacity assessment. 

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III. LEGAL ANALYSIS

Plaintiff posits a number of intertwined ways in which, she contends, the ALJ

erred in concluding that she was not disabled. I find one not only dispositive, but

sufficient to direct an award of benefits in plaintiff’s favor, and therefore do not consider

the others.

Plaintiff’s primary argument is that the ALJ erred in failing to properly assess her

mental residual functional capacity, and more precisely, her ability to deal with the

general public.2

 The record contains four opinions that bore on this determination: (1)

treating source Nicholas Rodriguez, LCSW (Tr. 216-221); (2) examining psychologist

Jose Vega (Tr. 170-176, 279-285); (3) examining psychiatrist Margaret McKinney (Tr.

165-168); and (4) non-examining psychiatrist Mary Ann Wharry (Tr. 193-195). The ALJ

suggested that “[t]he opinions provided by the[se] mental health providers vary widely.” 

(Tr. 21.) Yet, with respect to one critical issue, the medical sources were in perfect

harmony: Plaintiff could not be expected to be able to perform any job that requires

contact with the general public. (See Tr. 168, 172, 195, 217, 220.)

The ALJ apparently attempted to account for this evidence by including within

plaintiff’s mental residual functional capacity a limitation that her “contact with crowds

should not be frequent or prolonged.” (Tr. 18.) Although both plaintiff’s testimony and

the evidence of record support a conclusion that plaintiff could not deal with crowds of

people (see Tr. 23), the ALJ’s determination to discredit the broader conclusion of the

medical sources that she could not deal with the general public at all does not bear

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 The ALJ also rejected Mr. Rodriguez on the basis that he was not an “acceptable medical

source.” (Tr. 21.) This factor, standing alone, is not sufficient to allow the Commissioner to ignore the

opinion of such a source. Although this designation prevents Mr. Rodriguez from being considered a

"treating source," whose opinion might be entitled to controlling (i.e., determinative) weight if otherwise

well supported by the record, see Weaver v. Astrue, 2009 WL 3838280 at *3 (10th Cir. Nov 18, 2009);

Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007), the Commissioner has recently recognized that

given the realities of modern-day managed healthcare, 

medical sources who are not "acceptable medical sources," such as

nurse practitioners, physician assistants, and licensed clinical social

workers, have increasingly assumed a greater percentage of the

treatment and evaluation functions previously handled primarily by

physicians and psychologists. Opinions from these medical sources, who

are not technically deemed "acceptable medical sources" under our rules,

are important and should be evaluated on key issues such as impairment

severity and functional effects, along with the other relevant evidence in

the file.

Social Security Ruling 06-03p, 2006 WL 2329939 at *3 (SSA Aug. 9, 2006). Opinions of such sources

still must be considered, applying the same factors as are generally used to assess treating source

opinions. Id. at *4; see also Frantz, 509 F.3d at 1302.

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scrutiny.

In rejecting the opinion of Mr. Rodriguez, the ALJ noted, inter alia,

3

 that plaintiff’s

activities of daily living – specifically her ability to care for her personal needs, use public

transportation, shop for clothes and groceries, care for her grandson, and go fishing for

her birthday – did not support the severity of limitations suggested. (Tr. 22.) This was

error. Although such activities can inform the disability decision, they do not always

translate well into a determination of what the claimant can do on a sustained basis in

the workplace. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993); see

also Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005). The ALJ considered

this more relevant question not at all. 

The ability to care for one’s own personal needs has little translation to the

competitive work environment, and thus is unilluminating in and of itself. More

importantly, when mental impairments are at issue, the Commissioner has specifically

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 This opinion also was consistent with the of Mr. Rodriguez. (See Tr. 217.)

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recognized that a claimant may still be markedly limited in this area, even if she has a

wide range of activities of daily living, if she cannot perform such activities without direct

supervision or “on a consistent, useful, routine basis, or without undue interruptions or

distractions.” 20 C.F.R. Pt. 404, Subpt. P, app. 1, § 12.00C(1). See also id., § 12.00F

(“Particularly in cases involving chronic mental disorders, overt symptomatology may be

controlled or attenuated by psychological factors such as placement in . . . highly

structured and supportive settings [such as] may . . . be found in your home.”). Thus,

the fact that plaintiff can be around her family or care for her grandchild bears little

correlation to her ability vel non to interact appropriately with strangers. Likewise, the

ability to be present around others, such as when riding a bus or shopping, is not the

same as the ability to actually interact with them. In fact, the medical evidence of record

consistently indicated that plaintiff lives alone, tends to isolate herself, and has minimal

hobbies that do not require her to interact with others outside a limited universe of family

and close friends. (See, e.g., Tr. 166, 167, 172, 280.) 

The ALJ’s decision to give “partial weight” to the opinions of Drs. Vega and

McKinney (Tr. 22), and “some weight” to that of Dr. Wharry does not directly address

these medical sources’ suggested limitations on plaintiff’s ability to interact with the

general public and is, frankly, perplexing. Dr. Vega opined that plaintiff would have

“marked” to “extreme” difficulties in all aspects of social interaction in the workplace,

including the ability to interact appropriately with the general public. (Tr. 285.)4

 Yet the

ALJ glossed over these conclusions without comment. Even more egregious, the ALJ’s

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suggestion that Dr. McKinney’s opined that plaintiff “could relate to others for work

purposes” (Tr. 23), conveniently ignores the critical, concomitant qualification: that

plaintiff “should not be expected to deal with the general public.” (Tr. 168.) Dr. Wharry

likewise stated that plaintiff should have no interaction with the general public (Tr. 195),

but the ALJ’s bare-bones discussion of this opinion, which fails to specify which of Dr.

Wharry’s limitations were adopted and which were not, is impossible to review (see Tr.

23). 

Nor is the ALJ’s failure to discuss the issue harmless. The only job the ALJ

found to be compatible with plaintiff’s limitations was that of parking lot attendant. (Tr.

24.) Yet the vocational expert who testified at the hearing acknowledged that if plaintiff

could have no interaction with the general public, the job of parking lot attendant would

no longer be within her residual functional capacity. (Tr. 41-42.) The Commissioner

therefore failed to carry his burden of proof at step 5, and the disability decision

consequently cannot stand.

Plaintiff asks the court to forgo remand and direct the Commissioner to award her

benefits. I find the circumstances of this case present an appropriate opportunity for the

exercise of my discretion in that regard. See Nielson v. Sullivan, 992 F.2d 1118, 1122

(10th Cir. 1993). Although the determination of residual functional capacity is an

administrative determination reserved to the Commissioner, 20 C.F.R. §§ 404.1546 &

416.946; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000), that determination

must be grounded in some medical evidence, see Anderson v. Shalala, 51 F.3d 777,

779 (8th Cir. 1995). All the medical source statements of record support the conclusion

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that plaintiff cannot interact with the general public. The factors on which the ALJ relied

to find otherwise are not supported by substantial evidence. Under these

circumstances, I conclude that a remand would serve only to further delay an award of

benefits to which plaintiff is clearly entitled.

THEREFORE, IT IS ORDERED as follows:

1. That the conclusion of the Commissioner through the Administrative Law

Judge that plaintiff was not disabled is REVERSED;

2. That judgment SHALL ENTER in favor of plaintiff and against the

Commissioner;

3. That the Commissioner is DIRECTED to award plaintiff benefits from her

alleged date of onset; and

4. That plaintiff is AWARDED his costs, to be taxed by the clerk of the court

pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1, and as permitted by 28

U.S.C. § 2412(a)(1).

Dated March 25, 2013, at Denver, Colorado.

BY THE COURT:

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