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

                            FOR THE TENTH CIRCUIT                         May 21, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MICHAEL A. AKERS,

             Plaintiff - Appellant,

v.                                                          No. 13-5128
                                                  (D.C. No. 4:12-CV-00489-FHM)
CAROLYN W. COLVIN, Acting                                   (N.D. Okla.)
Commissioner, Social Security
Administration,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Michael A. Akers appeals from an order of the magistrate judge affirming the

Commissioner’s decision to deny social security supplemental security income

(“SSI”) benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), we affirm.



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Mr. Akers filed for SSI benefits alleging disability due to psychosis and

bipolar disorder. The Commissioner denied benefits, both initially and on

reconsideration. Mr. Akers then received a hearing before an administrative law

judge (“ALJ”), at which he was represented by counsel. The ALJ concluded that

Mr. Akers had a severe impairment of affective mood disorder, but that he retained

the residual functional capacity (“RFC”) to perform medium, light and sedentary

work, but he could not climb ropes, ladders, scaffolds, or work in environments that

exposed him to unprotected heights or dangerous moving machinery parts. The ALJ

found that Mr. Akers could understand, remember, and carry out simple to

moderately detailed instructions in a work setting, and interact with coworkers and

supervisors under routine supervision, but could interact with the public only

occasionally in person or by telephone. After considering testimony from a

vocational expert, the ALJ concluded Mr. Akers could perform his past relevant work

as a warehouse laborer and ice cream freezer assistant, and could also perform other

jobs existing in significant numbers in the national economy. The Appeals Council

denied Mr. Akers’ request for review. Mr. Akers appealed to the district court, and

the magistrate judge, sitting by consent, affirmed.

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether the correct legal

standards were applied.” Robinson v. Barnhart, 366 F.3d 1078, 1080 (10th Cir.

2004) (internal quotation marks omitted). On appeal, Mr. Akers argues that the ALJ


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failed to properly analyze the medical source evidence. The ALJ afforded great

weight to the medical opinion of Dr. Minor Gordon, Ph.D., a consultative examining

psychologist, who prepared a detailed report. Dr. Gordon noted that Mr. Akers

denied any delusions or hallucinations, and appeared attentive and alert. Dr. Gordon

reported that Mr. Akers’ intelligence was low average, and he would, therefore, have

some difficulty passing judgment in a work setting depending on the complexity of

the task, but that he could communicate comfortably, and “should be able to perform

some type of routine and repetitive task on a regular basis and he certainly could be

expected to relate adequately with coworkers and supervisors on a superficial level

for work purposes.” Aplt. App., Vol. 3, at 318. Mr. Akers does not challenge the

ALJ’s consideration of Dr. Gordon’s evidence.

      The ALJ gave some weight to the mental status form filled out by

Mr. Caswell, a licensed professional counselor, who stated that Mr. Akers was

intelligent but immature, had below-average thought processes and trouble focusing,

and could perform simple tasks. But he opined Mr. Akers could not keep a job

because he could not handle work pressure or responsibility, would need constant

supervision, and could not relate to coworkers. Id. at 258. Mr. Akers argues the

ALJ failed to use the factors set out in 20 C.F.R. § 404.1527(c) in considering

Mr. Caswell’s opinion. We find no error. Licensed professional counselors are not

“acceptable medical sources”—and thus may not provide medical opinions—but fall

within the category of “other sources” whose opinions may be considered to show the


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severity of a claimant’s impairment. See SSR 06-03p, 2006 WL 2329939, at 1-2

(Aug. 9, 2006). “[T]he factors in 20 CFR 404.1527[(c)] . . . explicitly apply only to

the evaluation of medical opinions from ‘acceptable medical sources,’ [though] these

same factors can be applied to opinion evidence from ‘other sources.’” Id. at *4.

With respect to “other sources” evidence, SSR 06-03p states that an ALJ “generally

should explain the weight given to opinions from these ‘other sources’” or otherwise

ensure the decision permits a reviewer to follow his or her reasoning. Id. at *6.

Here, the ALJ complied with SSR 06-03p and other applicable regulations by

explaining the weight he assigned to Mr. Caswell’s opinion and the reason for that

weight.

      The ALJ gave very little weight to the opinion of Dr. Johnson-Miller, who

completed a mental status form two days after the ALJ’s hearing. Dr. Johnson-Miller

wrote that Mr. Akers “reports” that he could not “respond appropriately to work

pressure, supervision and co-workers”; “reported irritability and difficulty controlling

his emotions”; “reports anger outbursts [and] labile mood”; “reported difficulty

maintaining employment due to bad attitude”; and “reports seeing angels and

communicating with them.” Aplt. App., Vol. 3, at 448-49. She also opined that

Mr. Akers could remember, comprehend and carry out directions on an independent

basis, but displayed poor focus, grandiosity and religiosity, id. at 448, and appeared

to display disorganized thought pattern and loose associations, id. at 449.




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      The ALJ explained that he gave very little weight to Dr. Johnson-Miller’s

evidence because it was quite conclusory and provided very little explanation of the

evidence relied upon, and because her opinions departed substantially from the rest

of the evidence. Mr. Akers argues on appeal that Dr. Johnson-Miller’s report was not

conclusory. We disagree. Dr. Johnson-Miller expressly relied quite heavily on

Mr. Akers’ subjective complaints and provided little or no explanation of the basis of

her conclusions, thus, the ALJ was entitled to give her report little weight. See

Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988) (holding that “a treating

physician’s opinion may be rejected if it is brief, conclusory and unsupported by

medical evidence”). We find no merit in Mr. Akers’ claim that the ALJ ignored

Dr. Johnson-Miller’s mental RFC findings; those findings are for recording summary

conclusions and are included and reported in her mental status form, which the ALJ

thoroughly discussed. Mr. Akers also argues that the ALJ relied improperly on

speculation and boilerplate when he mentioned the possibility “that a doctor may

express an opinion in an effort to assist a patient with whom he or she sympathizes

for one reason or another” and that “patients can be quite insistent and demanding in

seeking supportive notes or reports from their physicians.” Aplt. App., Vol. 2, at 25.

These comments clearly do not constitute the sole basis for the weight the ALJ

assigned to Dr. Johnson-Miller’s opinion, and the ALJ properly provided a fuller,

and more specific explanation for his evaluation of this evidence. See Mays v.

Colvin, 739 F.3d 569, 577 (10th Cir. 2014) (use of same boilerplate observation not


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improper where it was not the sole basis of the assigned weight and did not detract

from ALJ’s further explanation).

      Next, Mr. Akers argues the ALJ erred by not expressly discussing a mental

status form completed in November 2009 by a treatment provider at the Grand Lake

Mental Health Center, where Mr. Akers had been treated on an outpatient basis. This

treatment provider’s signature is illegible and the form does not indicate who

completed it or the provider’s medical credentials. This provider opined that

Mr. Akers displayed an ability to think, reason, and respond; to remember,

comprehend and carry out instructions; and to respond to work pressure, supervision

and coworkers, but also had a poor ability to relate to others and could not handle

funds. Aplt. App., Vol. 3, at 313. We agree with the magistrate judge’s conclusion

that this provider’s form supports, and does not contradict, the ALJ’s RFC finding.

Thus, we find no reversible error in the ALJ’s failure to discuss this opinion. See

Mays, 739 F.3d at 578-79 (“[A]n 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.”); see also Howard v. Barnhart, 379 F.3d

945, 947 (10th Cir. 2004) (“When the ALJ does not need to reject or weigh evidence

unfavorably in order to determine a claimant’s RFC, the need for express analysis is

weakened.”). For the same reason, we conclude the ALJ’s failure to discuss the

assessments of two state agency psychologists, Drs. Holloway and Kampschaefer,

was harmless error. Both concluded that Mr. Akers’ mental impairment was


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non-severe, which is less favorable to Mr. Akers than the ALJ’s conclusion that

Mr. Akers did have a severe mental impairment. When the ALJ’s RFC is “generally

consistent” with the findings in an opinion, or if the RFC is “more favorable” to the

claimant than the medical sources’ findings, then “[t]here is no reason to believe that

a further analysis or weighing of [the] opinion could advance [the claimant’s] claim

of disability.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012).

      Finally, we find no error in the ALJ’s discussion and consideration of the

statements and testimony from Mr. Akers’ parents. The ALJ discussed much of their

testimony and statements and it is clear from the ALJ’s decision that he considered

all of their evidence. Mr. Akers is essentially arguing that because the ALJ did not

discuss each piece of evidence, he did not consider it. But an ALJ is not required to

“reference everything in the administrative record.” Wilson v. Astrue, 602 F.3d 1136,

1148 (10th Cir. 2010).

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               Bobby R. Baldock
                                               Circuit Judge




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