Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2025 _________________________________ Christopher M. Wolpert Clerk of Court LORI ANN FAGER,
Plaintiff - Appellant, No. 24-1133 v. (D.C. No. 1:23-CV-00778-STV) (D. Colo.) COMMISSIONER, SSA,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________
The district court affirmed the Commissioner’s denial of Lori Ann Fager’s
application for Supplemental Security Income (“SSI”) benefits. She appeals.
Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.
I. Background
Ms. Fager has a bachelor’s degree in anthropology and past relevant work as a
legal secretary and housekeeper. She filed her SSI application in June 2017 with an
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 2
alleged disability-onset date of January 11, 2017, at age 42. She claimed that a back
injury, anxiety, and obesity limited her ability to work. After the agency denied her
application initially, an administrative law judge (“ALJ”) denied benefits, but the
Appeals Council of the Social Security Administration (“SSA”) remanded for further
proceedings. The ALJ again denied benefits. The Appeals Council denied review,
but the district court granted the Commissioner’s unopposed motion to reverse and
remand for further proceedings.
On remand, a different ALJ held a hearing in December 2022 and denied
benefits in a January 2023 written decision, which is the decision at issue in this case.
In her decision, the ALJ followed the five-step sequential evaluation process used to
review disability claims. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.
2005) (explaining five-step process). At step one, the ALJ found Ms. Fager was not
engaged in any substantial gainful activity. At steps two and three, the ALJ found
Ms. Fager has multiple severe impairments—obesity, degenerative disc disease of the
cervical and lumbar spine, plantar calcaneal spur on the left ankle, moderate
obstructive lung disease, chronic pain syndrome, depression, and anxiety—but none
of her impairments, alone or in combination, met or medically equaled the severity of
one of the impairments listed as disabling in the Commissioner’s regulations. The
ALJ then found that although Ms. Fager’s impairments could reasonably be expected
to cause some of her alleged symptoms, her testimony about the intensity,
persistence, and limiting effects of those symptoms was not entirely consistent with
the record evidence.
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After reviewing the evidence, the ALJ found Ms. Fager had the residual
functional capacity (“RFC”) to perform sedentary work subject to multiple
limitations. Relevant to this appeal are the limitations the ALJ found concerning her
nonexertional impairments—“[s]he can understand, remember, and carry out
unskilled instructions that can be learned in 30 days or less”; she “can sustain
concentration, persistence, and pace to these instructions for 2-hour intervals with . . .
15-minute morning and afternoon breaks and a 30-minute lunch break”; “[s]he can
have occasional but noncollaborative interactions with coworkers and supervisors”;
and she “can have occasional interactions with the general public.” App. vol. 5
at 1248.
At step four, the ALJ found that with this RFC, Ms. Fager could not perform
her past work as a receptionist, but at step five the ALJ found she could perform
other jobs that exist in significant numbers in the national economy. The ALJ
consulted a vocational expert (“VE”) who identified several representative
occupations a hypothetical individual with Ms. Fager’s RFC could perform: final
assembler, addresser, and touch up screener. The ALJ found Ms. Fager not disabled
within the meaning of the Social Security Act and denied SSI benefits.
The Appeals Council denied review. Ms. Fager then filed an action in the
district court, which affirmed the Commissioner’s decision. This timely appeal
followed.
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II. Standard of Review
“We review the district court’s decision de novo and independently determine
whether the ALJ’s decision is free from legal error and supported by substantial
evidence.” Fischer-Ross, 431 F.3d at 731. “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000) (internal quotation marks
omitted). “[T]he threshold for such evidentiary sufficiency is not high,” but it is
“more than a mere scintilla.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (internal
quotation marks omitted). We cannot “reweigh the evidence” or “substitute our
judgment for that of the agency.” Barnett, 231 F.3d at 689 (internal quotation marks
omitted).
III. Discussion
A. ALJ’s evaluation of mental impairments and related treatment records
The first and second of the three issues Ms. Fager raises on appeal involve the
ALJ’s evaluation of four medical opinions concerning her mental functional capacity
and the ALJ’s characterization of related treatment records. Her point appears to be
that if the ALJ had properly weighed these opinions and properly characterized the
treatment records, the ALJ would have found Ms. Fager disabled because the RFC
would have included a limitation the VE said would eliminate all jobs—having one
or two emotional breakdowns at work each day lasting 15 to 30 minutes. We first
describe the four opinions and the ALJ’s evaluation of them, and then address
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together Ms. Fager’s arguments regarding that evaluation and the ALJ’s
characterization of the related treatment records.
1. Opinion evidence
On September 9, 2017, David Fohrman, M.D., performed a consultative
examination of Ms. Fager. He noted that Ms. Fager’s complaints included anxiety,
depression, difficulty sleeping, and poor energy. He found she had (1) “mild
impairment in her capacity to do one or two-step tasks”; (2) “moderate impairment in
social interactions due to depression and anxiety as evidenced by interactions with
[him] and self-report”; (3) “moderate to marked impairment in her ability to [do]
complex tasks with sustained attention based on clinical history and results of
concentration and memory evaluation (as evidenced by difficulty with serial sevens
and[] only remembering two of three words at five minutes and digits backwards)”;
and (4) “marked impairment with consistently putting forth effort in work-related
activities due to severe depression and anxiety.” App. vol. 3 at 538. He also stated
that her “depression appears to be due to chronic pain” and she “has an anxiety
disorder which is exacerbating her degree of functional impairment. These
psychiatric condition[s] are associated with marked global impairment in social and
occupational functioning.” Id. He added “[i]t is highly likely that co-occurring
medical problems (especially chronic pain) are exacerbating [her] degree of
functional impairments.” Id.
Some two weeks later, on September 20, 2017, a state agency psychologist,
Anne Naplin, Ph.D., reviewed Ms. Fager’s available medical records and completed a
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mental RFC assessment. Dr. Naplin viewed Dr. Fohrman’s opinion as “an
overestimate of the severity of [Ms. Fager’s] restrictions/limitations.” App. vol. 1
at 107. Dr. Naplin found Ms. Fager had no more than moderate limitations in her
ability to (1) understand, remember, and carry out detailed instructions; (2) sustain
concentration and persistence; (3) interact appropriately with the general public; and
(4) accept instructions and respond appropriately to criticism from supervisors.
Dr. Naplin found Ms. Fager could perform with adequate concentration, persistence,
and pace “[a]s long as work duties are not too complex.” Id. at 105. She also found
Ms. Fager “should have occasional contact with [the] general public” and could
“accept instructions & criticisms from supervisors if the contact is not frequent or
prolonged.” Id. at 106. She added that Ms. Fager’s attendance and pace limitations
would not prevent her from completing a normal workday or workweek or
significantly reduce pace provided that the “work does not involve tasks of more than
limited complexity and attention to detail that require up to [one-half] year time to
learn techniques, acquire information and develop facility needed for an average job
performance.” Id.
Beginning in August 2018 and extending through October 2022, Lisa
Geisterfer, a Licensed Professional Counselor (“LPC”), saw Ms. Fager for mental
health therapy sessions, generally every week or two. On November 30, 2020,
Ms. Geisterfer completed a Mental Capacity Assessment (“MCA”) form. She found
Ms. Fager had moderate limitations in her ability to interact with others and to
understand, remember, or apply information; and marked limitations in her ability to
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adapt or manage herself and to concentrate, persist, or maintain pace. Ms. Geisterfer
found Ms. Fager’s impairments would “substantially interfere with . . . her ability to
work on a regular and sustained basis at least 20% of the time.” App. vol. 4 at 990.
She also found Ms. Fager could not “work on a regular and sustained basis in light of
. . . her mental impairment” due to her “diminished ability to focus, concentrate,
physical pain, social anxiety and co-occurent [sic] depression and anxiety already
present,” which would cause Ms. Fager to “be highly triggered – resulting in a
dysregulated state.” Id.
In February 2021, Joy Elizabeth DeJong Lago, Ph.D., conducted a
neuropsychological evaluation of Ms. Fager that “revealed a pattern of mainly intact
performance across cognitive domains, with the exception of a few areas of relative
weakness that appear functional as opposed to organic in nature.” App. vol. 5
at 1135. Dr. Lago characterized Ms. Fager’s scores on various tasks as low average,
average, high average, superior, very superior, within expectation, and well within
expectation. Dr. Lago reported no more than some mild difficulties. Dr. Lago
recommended that Ms. Fager should continue mental health therapy and “remain as
physically, mentally, and socially active as possible.” Id. at 1136. Dr. Lago stated
that “[f]rom a strictly cognitive standpoint, [Ms.] Fager would not be considered
unable to obtain or maintain competitive employment.” Id.
In a letter dated December 5, 2022, Ms. Geisterfer stood by her 2020 opinion,
stating as follows:
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[Ms. Fager] continues to have mitigating symptoms and diagnoses that makes working on a regular and sustained basis unfeasible. She continues to deal with chronic pain, depression, and anxiety. She has improved in her ability to manage the emotional overwhelm and panic that use[d] to be debilitating, however there is an on-going, underlying layer of depression that affects her. She has days where she feels better, has more focus, and less pain; these days are interspersed with more days where pain is intense, movement is difficult and her hope and mood are impacted. A regular and sustained work schedule would not be supportive to the accommodations she has to make on those days to support her mood and body. App. vol. 8 at 1922. Ms. Geisterfer added that “[t]here is a strong link between
chronic pain and depression,” and “depression can aggravate pain’s impact on the
mind and body.” Id.
2. ALJ’s evaluation of opinion evidence
The ALJ found unpersuasive Dr. Fohrman’s opinion that Ms. Fager has
marked impairments in sustained attention and consistently putting forth effort in
work activities because it was (1) “inconsistent with treatment records often showing
largely normal examination findings and describing [Ms. Fager] as alert and
attentive,” and (2) inconsistent with Dr. Lago’s neuropsychological evaluation
“showing intact cognitive functioning and recommending significant physical,
mental, and social activity.” App. vol. 5 at 1254.
The ALJ also found unpersuasive Ms. Geisterfer’s opinion: “The levels of
limitations suggested in her report, including the marked levels of limitations
suggested, are not supported by her own treatment records generally show[ing] stable
mood and good functioning.” Id. at 1255. The ALJ had summarized those notes
earlier in the decision as follows:
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These therapy notes did indicate some worsening of symptoms during brief periods of situational stressors, family issues, or periods of grieving for family members or pets. Even during the periods, though, the claimant generally continued to have an overall stable mood, and she largely improved quickly after these periods. Most prominently, these records showed that the claimant had a stable mood, was cooperative, was functioning well, was adjusting well to changes, was showing good insight, and was homeschooling her children. Id. at 1253 (citations and internal quotation marks omitted). The ALJ also explained
that Ms. Geisterfer’s opinion was not “consistent with the many mild or normal
mental status findings in the other treatment records.” Id. at 1255. The ALJ noted
that Ms. Geisterfer’s opinion was partially based on Ms. Fager’s physical pain and
condition, “the evaluation of which is beyond the scope of Ms. Geisterfer’s treatment
and qualifications.” Id. The ALJ further observed that Ms. Fager had on occasion
reported inaccurate information about her physical impairments. For example, she
once told Ms. Geisterfer she needed neck surgery, but the corresponding medical
records indicated only that a treating physician’s assistant said she would review
Ms. Fager’s imaging with the surgeons to rule out the need for surgery. The ALJ
determined that “the second-hand and inconsistent nature of medical information”
Ms. Geisterfer received “reduce[d] the probative value of any consideration of
[Ms. Fager’s] physical condition in [Ms. Geisterfer’s] assessment of [Ms. Fager’s]
functioning.” Id. The ALJ also found it “[n]otabl[e]” that a few months before
Ms. Geisterfer completed her 2020 MCA, one of her treatment notes indicated that
Ms. Fager needed paperwork for filing for disability and recited one of the
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requirements for meeting a listed impairment, namely, marked limitation in two
functional areas, or extreme limitation in one. Id. at 1254.
The ALJ found Dr. Naplin’s opinion that Ms. Fager had mostly moderate
limitations “largely persuasive.” Id. at 1255. The ALJ explained that her opinion
was “consistent with the record showing some difficulty with depression and anxiety
that warrant[s] some level of limitation, but also showing mostly normal mental
status findings that cannot be considered consistent with greater limits such as those
suggested by Dr. Fohrman and Ms. Geisterfer.” Id. But because of Ms. Fager’s
combined “depression and anxiety issues,” the ALJ “incorporated slightly greater
limitations in task complexity” than the half-year-learning-curve tasks Dr. Naplin had
endorsed, finding that the “record as a whole warrants limitation to unskilled
instructions that can be learned in 30 days or less.” Id.
Finally, the ALJ observed that Ms. Geisterfer had assigned Ms. Fager Global
Assessment of Functioning (“GAF”) scores between 48 and 65, but only once was the
score below 50, and it was often above 60. This, the ALJ explained, indicated
“largely mild to moderate levels of impairment”1 and constituted “further evidence
1 A GAF score in the range of 41–50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Am. Psychiatric Ass’n, Diagnostic & Stat. Manual of Mental Disorders (“DSM”) 34 (Text Rev. 4th ed. 2000) (boldface omitted). A GAF score in the range of 51–60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” Id. (boldface omitted). And a GAF score in the range of 61–70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, 10 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 11
that [Ms. Fager’s] mental impairments do not cause marked levels of limitation, and
is more consistent with the opinion evidence from Dr. Naplin than the assessments
from Ms. Geisterfer and Dr. Fohrman.” Id. at 1256.
3. Ms. Fager’s arguments
Ms. Fager first argues the ALJ should have given significant weight to
Dr. Fohrman’s opinion that she had moderate to marked limitations in several areas
of mental functioning because it was supported by the record and consistent with the
evidence. She points out that Dr. Fohrman performed a full psychological
evaluation, took detailed notes, and connected her anxiety and depression with his
conclusion. She adds that the regularity of her visits with Ms. Geisterfer “further
supports Dr. Fohrman’s opinion and shows that it is consistent with the record.”
Aplt. Opening Br. at 25.
Ms. Fager’s argument implicates the two most important regulatory factors used to
evaluate the persuasiveness of medical opinions and prior administrative medical
findings—supportability and consistency. See 20 C.F.R. § 416.920c(b)(2).
“Supportability” examines how closely connected a medical opinion or prior
or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well” with “some meaningful interpersonal relationships.” Id. (boldface omitted). The current edition of the DSM, published in 2013, “abandoned the GAF” scale, “[b]ut the [SSA] still instructs ALJs to treat GAF scores as medical-opinion evidence.” Gerstner v. Berryhill, 879 F.3d 257, 263 n.1 (7th Cir. 2018); see also Emrich v. Colvin, 90 F. Supp. 3d 480, 492 (M.D.N.C. 2015) (“In Administrative Message 13066 (AM–13066), effective July 22, 2013, the SSA acknowledged that the DSM had abandoned use of GAF scoring and instructed ALJs that they should still consider GAF scores as opinion evidence in some circumstances.”). 11 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 12
administrative medical finding is to the evidence and the medical source’s explanations:
“The more relevant the objective medical evidence and supporting explanations presented
by a medical source are to support his or her medical opinion(s) or prior administrative
medical finding(s), the more persuasive the medical opinions or prior administrative
medical finding(s) will be.” § 416.920c(c)(1). “Consistency,” on the other hand,
compares a medical opinion or prior administrative medical finding to the evidence:
“The more consistent a medical opinion(s) or prior administrative medical finding(s) is
with the evidence from other medical sources and nonmedical sources in the claim, the
more persuasive the medical opinion(s) or prior administrative medical findings(s) will
be.” § 416.920c(c)(2).
Ms. Fager may be right that Dr. Fohrman adequately supported his opinion by
connecting his conclusions to his exam findings. But the ALJ did not find his
opinion unpersuasive due to a lack of supportability. Instead, the ALJ found
Dr. Fohrman’s opinion unpersuasive because it was “inconsistent with the treatment
records often showing largely normal examination findings and describing
[Ms. Fager] as alert and attentive.” App. vol. 5 at 1254.
In discussing records from providers other than Ms. Geisterfer, the ALJ found
that in August 2017, “[p]sychiatric examination findings . . . were normal, including
normal mood and affect, normal behavior, and normal thought content.” Id. at 1253.
And “[l]ater 2017 psychiatric examinations showed isolated findings of agitation and
depressed mood, but a quick return to normal findings.” Id. The ALJ also found that
other “[p]rimary care records show subjective reports of anxiety and depression, but
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screens for the symptoms have shown improvement with prescription medication
treatment, and [Ms. Fager] acknowledged improvement in anxiety.” Id. The ALJ
further found that “[t]hese records show largely normal psychiatric examination
findings, including the latest records that describe [her] as alert, interactive, attentive,
future-thinking, and having normal mood and behavior.” Id.
As for Ms. Geisterfer’s therapy notes, the ALJ acknowledged that they
“indicate[d] some worsening of symptoms during brief periods of situational
stressors, family issues, or periods of grieving for family members or pets,” but
“[e]ven during [these] periods” Ms. Fager “generally continued to have an overall
stable mood” and “largely improved quickly after these periods.” Id. (internal
quotation marks omitted). Finally, the ALJ emphasized that “[m]ost prominently,”
Ms. Geisterfer’s notes showed that Ms. Fager “had a stable mood, was cooperative,
was functioning well, was adjusting well to changes, was showing good insight, and
was homeschooling her children.” Id.
Of all these records, which are rather voluminous and span from 2016 to 2022,
Ms. Fager addresses only four of Ms. Geisterfer’s treatment notes covering a
five-week span in 2020 as support for her argument that substantial evidence does not
support the ALJ’s characterization of the mental health records. The first of those
notes records Ms. Fager’s mood as “stable” and refers to sleeping difficulties. App.
vol. 8 at 1921. The next recites that she “had 2 very depressed days last week” but
“worke[d] her way through” and has “[l]ayers of sadness” around “challenges in
world, dad & his cancer, difficulties w/ kids, health challenges.” Id. at 1919. The
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third observes that she was “teary about daughter’s struggle,” had “sadness about
daughter’s depression and suicidal feelings,” and had increased anxiety. Id. at 1918.
And the fourth note states she “[b]rought up feelings of not being a good person” but
“her mind swirling is much better.” Id. at 1917 (internal quotation marks omitted).
These notes support Ms. Fager’s assertion that she has good and bad days, a
pattern that could conceivably prevent her from completing workdays or workweeks.
But these notes do not overwhelm the other medical records the ALJ relied on in
evaluating the consistency of Dr. Fohrman’s opinion. See Frey v. Bowen, 816 F.2d
508, 512 (10th Cir. 1987) (“Evidence is not substantial if it is overwhelmed by other
evidence . . . .” (internal quotation marks omitted)). Nor does Ms. Fager’s reliance
on the mere regularity of her therapy sessions with Ms. Geisterfer. And having
reviewed all of the treatment records pertaining to Ms. Fager’s mental health, we
conclude that substantial evidence supports the ALJ’s characterization of them.
Ms. Fager also fails to address the additional reasons the ALJ found
Dr. Fohrman’s opinion unpersuasive—it was inconsistent with Dr. Lago’s
neuropsychological evaluation “showing intact cognitive functioning and
recommending significant physical, mental, and social activity,” App. vol. 5 at 1254,
and with the bulk of the GAF scores Ms. Geisterfer had recorded. Those
unchallenged reasons are sound and, together with the inconsistent treatment records,
constitute substantial evidence supporting the ALJ’s finding that Dr. Fohrman’s
opinion was not persuasive.
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Ms. Fager next faults the ALJ for finding largely persuasive Dr. Naplin’s
opinion that Ms. Fager is no more than moderately limited in certain areas of mental
functioning. She points out that Dr. Naplin never treated or examined her and instead
formed an opinion based on only the “few treatment records . . . available at the time
of her review in September of 2017.” Aplt. Opening Br. at 25. Ms. Fager asserts that
“[n]one of those records relate to psychological treatment” and claims that because
Dr. Fohrman’s report was “the only psychological record Dr. Naplin reviewed, she
had little basis for protesting Dr. Fohrman’s conclusions.” Id.
This line of argument does not persuade us that the ALJ erred in the weight
she assigned to Dr. Naplin’s opinion. Plainly, “[a] medical source may have a better
understanding of [a claimant’s] impairment(s) if he or she examines [the claimant]
than if the medical source only reviews evidence in [the claimant’s] folder.”
20 C.F.R. § 416.920c(c)(3)(v). But as noted above, consistency with the record is
one of the two most important evaluative factors, and it is that factor the ALJ relied
on in finding Dr. Naplin’s opinion largely persuasive and Dr. Fohrman’s opinion
unpersuasive.2 Furthermore, Ms. Fager is wrong that none of the treatment records
available at the time of Dr. Naplin’s opinion relate to psychological treatment. On
September 23, 2016, Ms. Fager presented to Cynthia Van Farowe, M.D., “for
2 To the extent Ms. Fager implies the ALJ erred in not addressing the examination-relationship factor, she is mistaken. ALJs “are not required to . . . explain how [they] considered” that factor, § 416.920c(b)(2), unless they “find that two or more medical opinions . . . about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same,” § 416.902c(b)(3). Those prerequisites are not met here. 15 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 16
depression and anxiety.” App. vol. 2 at 459 (emphasis added). Dr. Van Farowe
“prescribed [Ms. Fager] Lexapro 5mg” and encouraged her to “follow up in 2–3
weeks for medication check.” Id. On October 16, 2016, Ms. Fager saw Dr. Van
Farowe again, this time for complaints of wheezing, but Dr. Van Farowe reported
that Ms. Fager “has been taking 10 mg Lexapro daily which has provided relief from
her anxiety stating that she can problem solve better, get out of the house easier, is
having less panic attacks and feels small set backs [sic] are less catastrophic.”
Id. at 462–63.
The remainder of the treatment notes the ALJ referred to that predate
Dr. Naplin’s opinion, all of which were written by Dr. Van Farowe, involved visits
for various physical problems. But they also show that Ms. Fager remained on
Lexapro and, as the ALJ noted, document “largely normal [psychiatric] examination
findings,” App. vol. 5 at 1254. Because Dr. Van Farowe had treated Ms. Fager for
depression and anxiety, those findings are not, as Ms. Fager’s argument suggests,
irrelevant to the ALJ’s analysis of Dr. Naplin’s opinion for consistency with the other
medical evidence.
Ms. Fager next argues that Dr. Naplin’s explanation for her opinion was
substantially flawed. She asserts that, unlike Dr. Fohrman, Dr. Naplin “ignored the
clinical history” and instead relied only on the results of Dr. Fohrman’s evaluation.
Aplt. Opening Br. at 26. But we have just rejected the notion that Dr. Fohrman’s
evaluation was the only psychological record available to Dr. Naplin. And even if
Dr. Naplin did not review the available treatment notes, the relevant inquiry is
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whether substantial evidence supports the ALJ’s finding that Dr. Naplin’s opinion is
consistent with the other medical evidence and Dr. Fohrman’s was not. There is
substantial evidence in the record supporting that finding, namely, the treatment
records (discussed above) that the ALJ identified as demonstrating largely normal
psychological findings.3
Ms. Fager also takes issue with Dr. Naplin’s reliance on Ms. Fager’s ability to
“‘persist through the entire exam despite occasional tearfulness,’” id. (quoting App.
vol. 1 at 105), as a reason for assessing only a moderate limitation in her ability to
sustain concentration and persist throughout a normal workday and workweek. She
notes that Dr. Fohrman recorded six separate occasions during his exam when she
became tearful, and she points to the VE’s testimony that having an average of one or
two daily emotional breakdowns in the workplace each lasting 15 to 30 minutes
would preclude work if the employee would not be able to persist in their work
functions. In essence, this argument asks us to reweigh the evidence or substitute our
judgment for the ALJ’s. We cannot do either. See Barnett, 231 F.3d at 689. And the
argument does not undermine our conclusion that substantial evidence supports the
ALJ’s finding that Dr. Naplin’s opinion was largely persuasive because it was
consistent with the other medical evidence.
3 Ms. Fager further attempts to undermine Dr. Naplin’s opinion by pointing out that she was “missing most of the evidence in this case when she rendered her opinion.” Aplt. Opening Br. at 27. But the same can be said of Dr. Fohrman. In any event, the issue is whether substantial evidence supports the ALJ’s decision that their opinions were or were not consistent with the medical evidence regardless of whether that evidence was produced before or after they rendered their opinions. 17 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 18
Ms. Fager also argues that the ALJ erred in finding that the limitations
Ms. Geisterfer endorsed were “based at least in part on [Ms. Fager’s] physical pain
and her physical condition, the evaluation of which is beyond the scope of
Ms. Geisterfer’s treatment and qualifications.” App. vol. 5 at 1255 (internal
quotation marks omitted). She contends that Ms. Geisterfer’s area of expertise
includes pain because the SSA has acknowledged a connection between psychology
and pain. In support of that contention, she cites to section DI 22510.011 of the
SSA’s Program Operations Manual System (“POMS”).4 She also cites two cases she
says supports this connection: Wild v. Chater, No. 95-35521, 1996 WL 560104
(9th Cir. Oct. 1, 1996) (unpublished), and Sommerville v. Astrue, No. 06-1110,
2007 WL 2176007 (D. Kan. July 24, 2007) (unpublished).
This argument fails. A medical source’s area of expertise is among the factors
an ALJ may consider when evaluating opinion evidence. See 20 C.F.R.
§ 416.920c(c)(4) (“The medical opinion . . . of a medical source who has received
advanced education and training to become a specialist may be more persuasive
about medical issues related to his or her area of specialty than the medical opinion
. . . of a medical source who is not a specialist in the relevant area of specialty.”).
The POMS provision Ms. Fager cites offers a definition of “pain specialist”: “A pain
specialist may be an orthopedist, a neurologist, a neurosurgeon, a physiatrist, a
psychiatrist, etc., but is different from others in these fields because of” either
4 The POMS is “a set of policies issued by the [SSA] to be used in processing claims.” McNamar v. Apfel, 172 F.3d 764, 766 (10th Cir. 1999). 18 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 19
“[s]pecial training in pain,” “[s]pecial experience in clinical management of pain,” or
“[r]ecognition within the specialty as an expert in pain and pain management.”
POMS DI 22510.011(A)(1).
Ms. Geisterfer is an LPC. For the sake of argument, we assume an LPC could
fall within the POMS definition of “pain specialist.” But Ms. Fager points to no
record evidence that Ms. Geisterfer has any special training, special experience, or
recognition as a pain expert that differentiates her from others in her field and marks
her as a pain specialist under the POMS definition. The POMS definition, therefore,
is inapposite. And because Ms. Geisterfer is an LPC, the cases Ms. Fager relies on
are unpersuasive because neither involved an LPC. In Wild, the claimant “was
referred to . . . a psychologist[] for a psychodiagnostic evaluation of a chronic pain
condition.” 1996 WL 560104, at *1 (internal quotation marks omitted). The Ninth
Circuit credited the psychologist’s opinion as among the substantial evidence
supporting the ALJ’s decision. See id. at *2. In Sommerville, the district court
concluded that “psychologists can evaluate claims of pain” and rejected the ALJ’s
contrary position. 2007 WL 2176007, at *5. We therefore conclude the ALJ
permissibly concluded that Ms. Geisterfer’s endorsement of limitations based at least
in part on Ms. Fager’s physical pain or physical condition were beyond the scope of
Ms. Geisterfer’s qualifications and permissibly relied on that factor as one basis for
finding her opinion unpersuasive.5
5 As noted above, the ALJ also discounted Ms. Geisterfer’s opinion because Ms. Fager had reported allegedly inaccurate information regarding her physical 19 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 20
B. ALJ’s reliance on Dr. Lago’s opinion
Ms. Fager takes issue with the ALJ’s handling of Dr. Lago’s statement that
“[f]rom a strictly cognitive standpoint, [Ms.] Fager would not be considered unable
to obtain or maintain competitive employment.” App. vol. 5 at 1136. The ALJ found
this “opinion . . . generally persuasive as it is supported by the IQ and General
Ability Index scores and the performance in other testing noted by Dr. Lago.”
Id. at 1254. Ms. Fager claims Dr. Lago’s statement was not a medical opinion
addressing work-related limitations but a conclusion that Ms. Fager could work,
which is a determination specifically reserved to the Commissioner by 20 C.F.R.
§ 416.920b(c)(3)(i). She therefore posits that the ALJ erred by finding it persuasive.
We disagree. The ALJ recognized that Dr. Lago’s statement about
Ms. Fager’s cognitive limitations was “quite narrow,” and the ALJ considered it in
conjunction with “the results of [Dr. Lago’s] evaluation as a whole in the context of
impairments. The Commissioner notes this rationale but argues that because Ms. Fager did not address it in her opening brief, she has waived appellate review of it. We agree. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed abandoned or waived.” (internal quotation marks omitted)). Although Ms. Fager raises the issue in her reply brief, that effort comes too late. See Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 676 n.9 (10th Cir. 2016) (“We generally do not consider arguments raised for the first time in a reply brief.”). But even if she had properly raised the issue, its resolution would not alter the outcome of this appeal because she has not shown reversible error in any of the other grounds on which the ALJ relied in finding Ms. Geisterfer’s opinion unpersuasive, including (1) the most important regulatory factor, inconsistency with the record, and (2) the ALJ’s finding that Ms. Geisterfer’s opinion was rendered not long after she recorded in her treatment notes the level of impairment necessary to gain eligibility for SSI benefits, which suggests the ALJ suspected Ms. Geisterfer of inflating the degree of Ms. Fager’s impairments. 20 Appellate Case: 24-1133 Document: 52-1 Date Filed: 02/21/2025 Page: 21
other evidence in the record.” App. vol. 5 at 1254. Clearly the ALJ was not
accepting Dr. Lago’s statement as an ultimate conclusion that Ms. Fager could not
work but as an opinion on a narrow issue—the functional effect of Ms. Fager’s
cognitive limitations, which was that they would not, alone, preclude work.
Moreover, Dr. Lago followed the disputed statement with the caveat that she
“defer[red] back” to Ms. Fager’s other providers regarding medical and
psychological limitations, id. at 1136, confirming that her opinion regarding
Ms. Fager’s cognitive limitations was just one portion of a functional-limitations
analysis.
IV. Conclusion
We affirm the district court’s judgment. We grant Ms. Fager’s motion for
leave to proceed on appeal without prepayment of costs or fees.
Entered for the Court
Gregory A. Phillips Circuit Judge