FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            June 28, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DIANE MARTINEZ,

      Plaintiff - Appellant,

v.                                                          No. 18-1218
                                                   (D.C. No. 1:16-CV-2938-CMA)
COMMISSIONER, SSA,                                            (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             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 This order and judgment is not binding precedent,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.
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.
                                            2
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, 

, 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.

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.” 

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.” 

internal quotation marks omitted).




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                                    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, 

, 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.” 

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.” 

(internal quotation

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

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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.

-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,

, 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


                                            5
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.” 

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. 

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      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.” 

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.” 

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

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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.” 

      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,

, 578-79 (10th Cir. 2014) (emphasis added). See also Keyes-Zachary v.

Astrue, 

, 1163 (10th Cir. 2012) (same). Here, the ALJ’s RFC finding



                                           8
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, 

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.” 

“Additionally,

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

                                           9
Presidents correctly, and was able to spell the word ‘world’ backward correctly.” 

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

38,”2 

which Dr. Wesley said demonstrated “major impairment in all areas of

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

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.” 

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.” 

(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, 

, 1122
n.3 (10th Cir. 2004) (internal quotation marks omitted).
                                         10


, 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. 

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.” 

      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 

. See also

                                          11


. 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




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