Aponte v. Commissioner of Social Security Administration

Filing 12

ORDER: The final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 1/8/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jessie M Aponte,

No. CV-17-00741-PHX-DGC

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Plaintiff Jessie M. Aponte seeks review under 42 U.S.C. § 405(g) of the final

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decision of the Commissioner of Social Security, which denied him disability insurance

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benefits and supplemental security income under §§ 216(i) and 223(d) of the Social

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Security Act.

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(“ALJ”) decision is unsupported by substantial evidence or based on reversible legal

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error, the Court will affirm.

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I.

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Because Plaintiff has not shown that the administrative law judge’s

Background.
Plaintiff is a 40 year old male who previously worked as a janitor, cashier, and

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laborer at a concrete plant.

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benefits and supplemental security income on June 11, 2012, alleging disability

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beginning on March 15, 2012. A.R. 378-95. On November 19, 2015, Plaintiff testified at

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a hearing before the ALJ. A.R. 43-84. A vocational expert also testified. Id. On

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January 14, 2016, the ALJ issued a decision that Plaintiff was not disabled within the

A.R. 31, 389.

Plaintiff applied for disability insurance

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meaning of the Social Security Act. A.R. 19-32. This became the Commissioner’s final

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decision when the Appeals Council denied Plaintiff’s request for review. A.R. 1-3.

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II.

Legal Standard.

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The Court reviews only those issues raised by the party challenging the ALJ’s

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decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set

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aside the determination only if it is not supported by substantial evidence or is based on

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legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is

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more than a scintilla, less than a preponderance, and relevant evidence that a reasonable

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person might accept as adequate to support a conclusion considering the record as a

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whole. Id. In determining whether substantial evidence supports a decision, the Court

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must consider the record as a whole and may not affirm simply by isolating a “specific

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quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence is

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susceptible to more than one rational interpretation, one of which supports the ALJ’s

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decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954

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(9th Cir. 2002) (citations omitted). Harmless error principles apply in the Social Security

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context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if

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there remains substantial evidence supporting the ALJ’s decision and the error does not

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affect the ultimate nondisability determination. Id.

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III.

The ALJ’s Five-Step Evaluation Process.

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

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the burden of proof on the first four steps, and the burden shifts to the Commissioner at

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step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability,

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the claimant must show that (1) he is not currently working, (2) he has a severe

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impairment, and (3) this impairment meets or equals a listed impairment or (4) his

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residual functional capacity (“RFC”) prevents his performance of any past relevant work.

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If the claimant meets his burden through step three, the Commissioner must find him

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disabled. If the inquiry proceeds to step four and the claimant shows that he is incapable

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of performing past relevant work, the Commissioner must show in the fifth step that the

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claimant is capable of other work suitable for his RFC, age, education, and work

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experience. 20 C.F.R. § 404.1520(a)(4).

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At step one, the ALJ found that Plaintiff meets the insured status requirements of

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the Social Security Act through December 31, 2016, and has not engaged in substantial

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gainful activity since March 15, 2012. A.R. 21. At step two, the ALJ found that Plaintiff

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has the following severe impairments: borderline personality disorder, bipolar disorder

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NOS, panic disorder with agoraphobia, shoulder/hand arthralgia, and chronic pain

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syndrome. Id. The ALJ acknowledged that the record contained evidence of acute facial

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fractures, sciatica, rhinitis, skin rash, enlarged thyroid, headaches, lumbar spondylosis,

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and abdominal pain NOS, but found that these are not severe impairments. A.R. 21-22.

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At step three, the ALJ determined that Plaintiff does not have an impairment or

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combination of impairments that meets or medically equals a listed impairment.

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A.R. 22-23. At step four, the ALJ found that Plaintiff has the RFC to perform medium

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work with some additional limitations, and that Plaintiff is able to perform his past

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relevant work as a janitor. A.R. 24-32.

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IV.

Analysis.

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Plaintiff argues that the ALJ erred by (1) rejecting his treating psychiatrist’s

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opinion, (2) affording great weight to a consulting examiner’s opinion but failing to

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include his opined limitations in the RFC analysis, and (3) finding moderate

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concentration limitations at step two but defining his RFC to include an ability to carry

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out simple instructions and tasks. Doc. 9 at 5-20.

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A.

Weighing of Medical Source Evidence.
1.

Legal Standard.

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The Commissioner is responsible for determining whether a claimant meets the

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statutory definition of disability, and need not credit a physician’s conclusion that the

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claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the

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Commissioner generally must defer to a physician’s medical opinion, such as statements

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concerning the nature or severity of the claimant’s impairments, what the claimant can

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do, and the claimant’s physical or mental restrictions. § 404.1527(a)(2), (c).

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In determining how much deference to give a physician’s medical opinion, the

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Ninth Circuit distinguishes between the opinions of treating physicians, examining

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physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s

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opinion and more weight to the opinion of an examining physician than a non-examining

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physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see also 20

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C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating opinion

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evidence, including length of examining or treating relationship, frequency of

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examination, consistency with the record, and support from objective evidence).

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If a treating or examining physician’s medical opinion is not contradicted by

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another doctor, the opinion can be rejected only for clear and convincing reasons. Lester,

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81 F.3d at 830.

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physician’s opinion if it is “conclusory, brief, and unsupported by the record as a whole[]

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or by objective medical findings,” Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190,

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1195 (9th Cir. 2004), or if there are significant discrepancies between the physician’s

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opinion and her clinical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

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2005).

Under this standard, the ALJ may reject a treating or examining

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When a treating or examining physician’s opinion is contradicted by another

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doctor, it can be rejected for “specific and legitimate reasons supported by substantial

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evidence in the record.” Lester, 81 F.3d at 830-31 (internal quotations and citation

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omitted). To satisfy this requirement, the ALJ must set out “a detailed and thorough

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summary of the facts and conflicting clinical evidence, stating his interpretation thereof,

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and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). Under

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either standard, “[t]he ALJ must do more than offer his conclusions. He must set forth his

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own interpretations and explain why they, rather than the doctors’, are correct.” Embrey

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v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

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2.

Dr. Sulley.

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Dr. Adiza Sulley completed a medical assessment of Plaintiff in 2015, in which

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she diagnosed chronic post-traumatic stress disorder and major depressive disorder,

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resulting in anxiety, hypervigilance, irritability, excessive rumination, and decreased

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energy, motivation, concentration, and focus. A.R. 871. She opined that Plaintiff would

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be moderately limited in understanding and carrying out short, simple instructions,

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markedly limited in making judgments on simple, work-related decisions and interacting

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appropriately with the public, and extremely limited in understanding and remembering

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detailed instructions, interacting appropriately with supervisors and co-workers, and

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responding appropriately to work pressures and changes in a routine work setting.

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A.R. 870.1 Dr. Sulley also opined that Plaintiff would be off task more than 30% of an

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eight-hour workday, five days a week; absent from work five days or more per month;

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unable to complete an eight-hour workday five days or more per month; and, compared

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to an average worker, he could be expected to perform a full-time job less than 50% as

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efficient on a sustained basis. A.R. 871.

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Dr. Sulley’s opinion is inconsistent with the opinions of two consulting examiners:

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Dr. Angel Gomez, who opined that Plaintiff is able to perform a range of medium work

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despite his impairments, and Dr. Mansfield Blair, who opined that Plaintiff is able to

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understand and carry out simple instructions and work-like procedures.

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A.R. 26-27, 801-06, 815.

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reasons for affording little weight to Dr. Sulley’s opinion are specific, legitimate, and

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supported by substantial evidence. Cotton, 799 F.2d at 1408. The ALJ gave four

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reasons: (1) Dr. Sulley did not appear to be a treating doctor, (2) she relied heavily on

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Plaintiff’s subjective reports, (3) her opinion is inconsistent with the entirety of the

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record, and (4) it is conclusory and unsupported. A.R. 29.2

See

Therefore, the Court must determine whether the ALJ’s

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“Moderate” is defined as 10% off task. A.R. 870. “Marked” is defined as
11-15% off task. Id. “Extreme” is defined as greater than 15% off task. Id.
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Plaintiff asserts that the ALJ gave three reasons, but the record evidences four.
See A.R. 29.
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a.

The ALJ’s First Reason.

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The ALJ stated that it did “not appear Dr. Sulley actually treated [Plaintiff], as

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treating notes are consistently signed by Dan Muschevici, M.D., and Dr. Sulley failed to

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address this in her medical source statement.” A.R. 29. Plaintiff asserts that this is

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incorrect; Dr. Sulley consistently prescribed medications and examined Plaintiff during

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2014 and 2015 such that she is a treating doctor. Doc. 9 at 7. The record supports

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Plaintiff’s assertion.

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1221-22, 1243-46, 1250-52. The Commissioner appears to concede that the ALJ erred in

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finding that Dr. Sulley is not a treating doctor, but argues any error is harmless because

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the ALJ gave additional valid reasons for rejecting his opinion. Doc. 10 at 6. The Court

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agrees that the remaining three reasons are specific, legitimate, and supported by

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substantial evidence, and that the ALJ’s error was harmless.

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b.

See, e.g., A.R. 1098-99, 1144-45, 1164-66, 1177-78, 1203-04,

The ALJ’s Second Reason.

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The ALJ found “good reasons” to question the reliability of Plaintiff’s subjective

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complaints, and stated that Dr. Sulley “apparently relied quite heavily on the subjective

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report of symptoms and limitations provided by the claimant, and seemed to uncritically

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accept as true most, if not all, of what the claimant reported.” A.R. 29. Generally, a

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physician’s reliance on a claimant’s “subjective complaints hardly undermines [her]

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opinion as to [his] functional limitations, as a patient’s report of complaints, or history, is

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an essential diagnostic tool.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir.

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2003) (internal citations and quotations omitted). But if “a treating provider’s opinions

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are based ‘to a large extent’ on an applicant’s self-reports and not on clinical evidence,”

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and “the ALJ finds the applicant not credible, the ALJ may discount the treating

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provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting

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Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)).

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The ALJ found that Plaintiff’s statements concerning his symptoms were not

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entirely credible because he “has not generally received the type of medical treatment one

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would expect for a totally disabled individual,” the medical evidence fails to corroborate

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his mental symptoms, his daily activities are not as limited as would be expected, and at

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least one examining doctor reported that he could not rule out “the possibility that

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[Plaintiff] was exaggerating his symptoms.”

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Plaintiff’s own statements undermined his credibility. A.R. 31. For example, Plaintiff’s

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treatment notes reflect that he reported he “is not able to look for a job, as he needs time

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to take [care of] his daughter,” and “would rather wait for his Social Security to be

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approved as opposed to work.” A.R. 31, 785, 954. Finally, the ALJ added that Plaintiff

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was able to participate fully in the hearing without being distracted or showing signs of

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pain or discomfort. A.R. 31.

A.R. 24-27.

The ALJ also noted that

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Plaintiff does not dispute the ALJ’s reasons for discrediting his testimony.

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Plaintiff simply asserts that the ALJ speculated that Dr. Sulley’s opinion is based on his

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subjective complaints, and the Court “may not assume that doctors routinely lie in order

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to help their patients collect disability benefits.” Doc. 9 at 9 (quoting Lester v. Chater, 81

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F.3d 821, 832 (9th Cir. 1995)). But the ALJ did not base this conclusion on mere

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speculation. He reasoned that Dr. Sulley’s opinion must have been based primarily on

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Plaintiff’s subjective complaints because the opinion is inconsistent with her own

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treatment records and the record as a whole. As explained below, the Court finds that the

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ALJ’s determination of inconsistency is supported by substantial evidence. Thus, it was

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reasonable for the ALJ to infer that the opinion must have relied on Plaintiff’s subjective

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complaints and to discount the opinion because those complaints lack credibility. See

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Molina, 674 F.3d at 1111 (“[W]e must uphold the ALJ’s findings if they are supported by

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inferences reasonably drawn from the record.”).

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c.

The ALJ’s Third Reason.

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Citing specific record evidence, the ALJ reasoned that Dr. Sulley’s opinion

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“remains unsupported by the relatively unremarkable mental status examinations and

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notations that the claimant is psychiatrically stable.” A.R. 29. Plaintiff does not address

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this reason in his opening brief. In his reply, Plaintiff asserts that there is no need to

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address it because this reason suffers from a “complete lack of meaningful explanation,”

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and a finding that Plaintiff is stable has no bearing on Dr. Sulley’s evaluation of

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Plaintiff’s work-related limitations.

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arguments made for the first time in Plaintiff’s reply. Zamani v. Carnes, 491 F.3d 990,

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997 (9th Cir. 2007). But even if the Court considers this argument, there is no error.

Doc. 11 at 3.

The Court need not consider

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Although the ALJ did not explain the medical evidence of stability in detail in the

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particular paragraph where he addressed Dr. Sulley, it is clear that the ALJ was referring

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back to his earlier summary of Plaintiff’s mental examinations and reports. See A.R. 25-

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26. In that portion of the opinion, the ALJ explained that Plaintiff was routinely seen for

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counseling and medication management, consistently reported that the treatment kept his

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mood stable and controlled his anger, denied side effects from the medications, routinely

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appeared alert, oriented, and calm, and had good hygiene, organized speech, logical

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thought process, and good insight, judgment, and fund of knowledge. Id. The ALJ noted

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that at times he was lethargic, anxious, teary eyed, or in a depressed mood, but that these

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symptoms were infrequent and related to family stressors, such as his daughter being

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removed from his care. Id. Based on this evidence, the ALJ concluded that “despite

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stressors, [Plaintiff] was able to remain stable.” A.R. 26. The overall picture of mental

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stability created by the record is inconsistent with Dr. Sulley’s conclusion that Plaintiff

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would have moderate, marked, or extreme limitations in all functional categories as a

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result of his mental impairments. Thus, the ALJ’s conclusion that Dr. Sulley’s evaluation

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was inconsistent with the record is supported by substantial evidence, and this is a

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specific, legitimate reason to discount it.

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d.

The ALJ’s Fourth Reason.

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Finally, the ALJ stated that “Dr. Sulley’s opinion is quite conclusory, providing

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very little explanation of the evidence relied on.” A.R. 29. Plaintiff argues that this is

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incorrect because Dr. Sulley’s opinion contains a comments section, and in any case this

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is an insufficient reason because the Ninth Circuit has “explicitly endorsed assessments

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expressed in the form of questionnaires.” Doc. 9 at 12. But this misses the point.

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Although an ALJ may not reject a treating physician’s opinion simply because it is a

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questionnaire, an ALJ may reject such an opinion for specific, legitimate reasons. See

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Lester, 81 F.3d at 830-31. Plaintiff relies on Garrison v. Colvin, but in that case the

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questionnaires “were entirely consistent with the hundreds of pages of treatment notes.”

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759 F.3d 995, 1014 (9th Cir. 2014); see also Burrell v. Colvin, 775 F.3d 1133, 1140 (9th

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Cir. 2014) (finding error where ALJ rejected a treating physician’s “check-box” form

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because the opinion was supported by plaintiff’s testimony and the doctor’s extensive

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treatment notes). Here, the ALJ explained that Dr. Sulley’s opinion was contradicted by

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the totality of the medical evidence, which suggested that Plaintiff’s impairments are

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adequately managed through treatment and do not preclude employment. A.R. 25-26, 29.

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Given the questionnaire’s inconsistency with the medical record, its conclusory

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statements and lack of explanation were more acute problems, leaving the ALJ with little

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basis for crediting Dr. Sulley’s opinion. The ALJ did not reject the opinion simply

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because it is in the form of a questionnaire; he rejected it because it is largely

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unexplained, particularly when considered in light of the medical evidence. The Court

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will not disturb this determination, as it is supported by substantial evidence.

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3.

Dr. St. Clair.

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Plaintiff argues that the ALJ erred by assigning great weight to the opinion of a

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state agency psychological examiner, Dr. St. Clair, but then failing to include his opined

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limitations in Plaintiff’s RFC. Doc. 9 at 13-20. Dr. St. Clair diagnosed Plaintiff with

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bipolar disorder NOS and personality disorder NOS. A.R. 713. He opined that Plaintiff

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would “have significant difficulty in being able to understand or remember simple or

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complex instructions or work-like procedures,” and “some difficulties” in sustaining

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concentration and social interactions, particularly getting along with coworkers and

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maintaining socially appropriate behaviors. A.R. 714.

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The ALJ summarized Dr. St. Clair’s findings, but discounted many of them

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because Dr. St. Clair indicated he could not rule out the possibility that Plaintiff was

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malingering. A.R. 27. Specifically, on the immediate recall test, Plaintiff was unable to

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recall any of the three items until the fifth trial, “which is extremely unusual, even with

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people with significant brain injury.” A.R. 27, 712. The ALJ also noted that Dr. St.

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Clair’s opinion was “somewhat vague” and did not provide “specific limitations.”

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A.R. 27. Further, he explained that it “appear[ed Dr. St. Clair] relied quite heavily upon

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[Plaintiff’s] subjective report of symptoms and the performance on the exam, which as

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this physician noted, may not have been accurate due to malingering.” Id. He also

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pointed out that Plaintiff’s statement to Dr. St. Clair that he had no friends was in “direct

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contrast to his testimony during the hearing” that he had two friends. A.R. 27, 63, 709.

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The ALJ concluded: “On the other hand, this physician did have the opportunity to

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examine the claimant and the diagnoses rendered remain supported by the medical

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evidence overall. I have therefore given this assessment great weight.” A.R. 27.

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Although he decided to give the opinion great weight, the ALJ did not include Dr.

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St. Clair’s opined difficulties in Plaintiff’s mental RFC or in the hypothetical he posed to

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the vocational expert. See A.R. 24 (describing Plaintiff’s RFC, stating Plaintiff “retains

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the ability to understand, remember, and carry out simple instructions and to perform

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simple, routine, and repetitive tasks,” and “can engage in occasional interaction with the

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public, co-workers, and supervisors with no crowd contact”); A.R. 77 (describing same

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limitations to vocational expert). Plaintiff argues that the ALJ erred by affording great

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weight to the opinion but excluding the limitations from his RFC. A.R. 13-15. The

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Commissioner argues there was no error because the ALJ explained his reasons for

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discounting those parts of Dr. St. Clair’s opinion. Doc. 10 at 8-9. The Court agrees with

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the Commissioner.

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The ALJ identified portions of Dr. St. Clair’s opinion that were unreliable,

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explained his reasons for discrediting those portions, and excluded them from Plaintiff’s

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RFC. Plaintiff does not seriously challenge the ALJ’s finding that Dr. St. Clair’s opined

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memory and concentration limitations were unreliable because of the likelihood of

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malingering.

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psychologist stated, ‘malingering (an exaggeration of symptoms) cannot be ruled out,’

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but Dr. St. Clair did not diagnose malingering.”) (internal citations omitted).

See Doc. 9 at 14-15 (“Admittedly, as the ALJ noted, the examining

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Moreover, the Court finds no legal error because the ultimate RFC determination

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remains supported by substantial evidence without Dr. St. Clair’s opinion. As explained

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above and in the ALJ’s decision, Plaintiff’s treatment records spanning multiple years

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consistently indicate fair or good concentration and memory, logical thought process, and

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an ability to maintain personal hygiene, prepare nutritious meals, complete daily

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household chores, care for young children, manage finances, follow a medical treatment

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plan, exercise, attend church once or twice per week, utilize community resources, and

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communicate needs effectively. See, e.g., A.R. 25-26, 902-1255. Consulting examiner

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Dr. Karen Mansfield-Blair noted the possibility of malingering and opined that Plaintiff

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is able to understand, remember, and carry out simple one- to three-step instructions.

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A.R. 28, 809-15. State consulting examiner Dr. Angel Gomez opined that Plaintiff can

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perform a range of medium work and is able to follow instructions and understand

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normal discussion despite his impairments. A.R. 26-27, 801-03. And the ALJ cited a

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psychological evaluation performed by Dr. Charles House, who suspected that the test

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results underestimated Plaintiff’s actual abilities.

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evidence thus supports the ALJ’s RFC determination that Plaintiff is able “to understand,

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remember, and carry out simple instructions and to perform simple, routine, and

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repetitive tasks,” and “engage in occasional interaction with the public, co-workers, and

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supervisors.” A.R. 24. Although the evidence may be susceptible to more than one

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rational interpretation, the Court must uphold the ALJ’s decision because it is supported

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by inferences reasonably drawn from the record. See Molina, 674 F.3d at 1193.

A.R. 27, 672.

The totality of the

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B.

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At step two, the ALJ determined that Plaintiff is moderately limited in

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concentration, persistence, or pace. A.R. 23. Plaintiff argues that the ALJ erred in

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defining his mental RFC in light of this step-two determination. Doc. 9 at 15-20. While

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the ALJ must include all of a claimant’s restrictions in the RFC, the Ninth Circuit has

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explained that “an ALJ’s assessment of a claimant adequately captures restrictions related

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to concentration, persistence, or pace where the assessment is consistent with restrictions

Plaintiff’s Mental RFC.

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identified in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174

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(9th Cir. 2008). “[T]he relevant inquiry is whether the medical evidence supports the

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ALJ’s finding.” Bennett v. Colvin, 202 F. Supp. 3d 1119, 1126 (N.D. Cal. 2016). For the

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same reasons discussed above, the ALJ’s determination that Plaintiff retained the ability

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to understand and complete simple tasks and occasionally interact with co-workers and

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the public despite his concentration limitations is consistent with the medical and other

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evidence in the record, and adequately captures Plaintiff’s limitations.

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Plaintiff cites two Ninth Circuit cases for the proposition that an ALJ errs by

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finding moderate concentration limitations at step two but not including them in the RFC.

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Doc. 9 at 17 (citing Lubin v. Comm’r of Soc. Sec. Admin., 507 F. App’x 709 (9th Cir.

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2013); Brink v. Comm’r of Soc. Sec. Admin., 343 F. App’x 211 (9th Cir. 2009)). In

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Lubin, the ALJ noted moderate limitations in concentration, persistence, or pace, and then

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determined the claimant had the RFC to perform “one to three step tasks.” 507 F. App’x

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at 712. The court held that this RFC did not capture the concentration, persistence, or

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pace limitation, but did not explain its rationale in detail. Id. In Brink, the ALJ noted

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moderate difficulty with concentration, persistence, or pace, but defined the claimant’s

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RFC to include the ability to perform “simple, repetitive work.” 343 F. App’x at 212.

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The court again held that this did not fully capture the claimant’s limitations. Id. The

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Brink court distinguished Stubbs-Danielson, where the medical testimony “did not

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establish any limitations in concentration, persistence, or pace,” because Brink’s medical

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records did establish such limitations. Id. This case is more analogous to Stubbs-

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Danielson.

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When the ALJ acknowledged “moderate difficulties” in concentration, persistence,

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or pace at step two, he explained that “there are no deficiencies noted with concentration

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or attention among treating notes,” “no significant memory or attention problems

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observed during [Dr. Tarazon Weyer’s consultative examination],” and progress notes

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state Plaintiff “was able to take medications as prescribed, manage and budget his

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finances, and manage his time effectively, all of which require at least some ability in this

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regard.” A.R. 23. The ALJ concluded, however, that during Dr. St. Clair’s examination,

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Plaintiff “exhibited variable concentration,” and therefore he found “moderate difficulties

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in this regard.” Id. Thus, the only evidence the ALJ relied on in finding moderate

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concentration difficulties was Dr. St. Clair’s opinion, which the ALJ addressed in more

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detail in the RFC analysis. In that part of the decision, the ALJ explained that Dr. St.

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Clair’s assessment of Plaintiff’s memory and concentration was unreliable – as Dr. St.

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Clair himself noted. A.R. 27, 711-12. As in Stubbs-Danielson, the ALJ explained his

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omission of the moderate concentration difficulties from the RFC by reference to the

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medical findings, which show that Plaintiff generally has fair or good concentration and

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retains the ability to perform simple, routine, and repetitive tasks. 539 F.3d at 1173-75.

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The ALJ’s step-two finding of moderate limitations in concentration, persistence, or pace

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did not mandate a particular RFC, and the ALJ’s RFC determination adequately captured

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the restrictions reflected in the medical evidence.

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IT IS ORDERED that the final decision of the Commissioner of Social Security
is affirmed. The Clerk shall enter judgment accordingly and terminate this case.
Dated this 8th day of January, 2018.

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