Montoya v. Colvin
ORDER : The decision of the Commissioner is AFFIRMED. By Judge R. Brooke Jackson on 12/29/2014. (tscha, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-01697-RBJ
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
This matter is before the Court on review of the Commissioner’s decision denying
plaintiff Ray Montoya’s application for disability insurance benefits pursuant to Title II of the
Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g).
STANDARD OF REVIEW
This appeal is based upon the administrative record and briefs submitted by the parties.
In reviewing a final decision by the Commissioner, the role of the district court is to examine the
record and determine whether it “contains substantial evidence to support the [Commissioner’s]
decision and whether the [Commissioner] applied the correct legal standards.” Rickets v. Apfel,
16 F.Supp.2d 1280, 1287 (D. Colo. 1998). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Wilson v. Astrue, 602 F.3d
1136, 1140 (10th Cir. 2010) (citations omitted). Evidence is not substantial if it “constitutes
mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
The Court “may neither reweigh the evidence nor substitute [its] judgment for that of the
agency.” Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (citations omitted). Thus,
although some evidence could support contrary findings, the Court “may not displace the
agency’s choice between two fairly conflicting views,” even if the Court might “have made a
different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007). However, the Court must “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)
Upon review, the district court “shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 45
U.S.C. § 405(g).
Mr. Montoya applied for disability insurance benefits on or around May 11, 2011. He
claimed inability to work since his alleged onset date of May 9, 2011 due to bilateral I5
spondylolysis without listhesis, bilateral L5 spondylolysis without listhesis (lower back), right
knee degenerative arthritis, and depression. R. 189. Mr. Montoya’s date last insured is
December 31, 2015. The Commissioner denied Mr. Montoya’s application on July 26, 2011.
Mr. Montoya then requested a hearing before an administrative law judge (ALJ), and the ALJ
conducted hearing on May 16, 2012. On June 19, 2012 ALJ Kathryn D. Burgchardt issued an
opinion denying benefits. The Appeals Council denied Mr. Montoya’s request for review on
April 30, 2013. Thereafter, Mr. Montoya filed a timely appeal with this Court.
Mr. Montoya was let go from his job with Dish network as a satellite installer on May 9,
2011. That same day he presented to the Denver Veterans’ Administration (VA) Hospital and
underwent a series of medical examinations for back and knee pain. He was diagnosed with
bilateral L5 spondylolysis without listhesis (essentially a stress fracture of a vertibra without
misalignment) with respect to his back pain and with moderate to significant 3-compartment
osteoarthritis with respect to his knee pain. R. 255–56. He was referred for an evaluation and
twelve physical therapy sessions to take place between May 12 and August 12, 2011. R. 265.
There are no medical records indicating that Mr. Montoya ever utilized this referral or went to
physical therapy for purposes of relieving his back and knee pain. He did, however, go to a
physical therapist in 2012 to seek a functional assessment evaluation for purposes of his
disability claim, which will be discussed more fully below.
On May 9, 2011 Mr. Montoya also underwent a mental health screening during which he
indicated that he was not suffering from acute emotional/behavioral difficulties nor did he have a
history of either. R. 277. He also stated that he had not been feeling down, depressed, or
hopeless in the previous two weeks. Id.
On May 27, 2011 Mr. Montoya filed a claim for individual unemployability with the VA.
See R. 224. On or around November 28, 2011 the VA denied his claim, finding that Mr.
Montoya was capable of gainful employment. R. 229. In particular, the VA found that although
Mr. Montoya could no longer perform his job as a satellite dish installer due to his physical
impairments, he was not precluded from all gainful employment. R. 230. The VA medical
examiner opined that he was able to perform sedentary work, and the mental health examiner did
not conclude that all employment was precluded. Id.
On June 30, 2011 Mr. Montoya met with Ryan Otten, MD, for a consultative examination
concerning his disability benefits application. See R. 283. At that time Mr. Montoya
complained of back pain, arthritis in the knee, and depression. Id. Dr. Otten diagnosed Mr.
Montoya with chronic low back pain with possible radiculopathy, reported history of lumbar
spine degenerative disc disease; moderate to severe 3-compartment right knee osteoarthritis;
depression; and WHO class III (morbid) obesity. R. 287. He also noted that Mr. Montoya was
severely hypertensive that day, which the plaintiff attributed to “white coat syndrome.” Id. Dr.
Otten completed a functional assessment in which he opined that there were no limitations on the
number of hours Mr. Montoya could stand or sit during an 8-hour workday; that he should be
limited to walking 3–4 hours in an 8-hour workday; that he could occasionally (less than 4 hours
out of an 8-hour workday) perform the activities of bending, squatting, crouching, stooping, and
kneeling; that he could lift or carry 20 pounds frequently and 40 pounds occasionally; that he
could occasionally push and pull with both upper extremities; and that he should have only rare
(less than 2 hours out of an 8-hour workday) exposure to stairs and ladders. Id.
With respect to his depression, it appears that Mr. Montoya had stopped taking his
medication because he felt it was not working and at times made him feel worse. See R. 227,
283. As of November 2011 Mr. Montoya was not in therapy, R. 227. In early 2012 he
underwent some group and individual therapy sessions, though a very limited amount, see R.
295–304. A mental health examination that took place in or around November 2011 showed that
Mr. Montoya’s cognitive functioning was normal, his thought process was linear and goaldirected, he did not exhibit inappropriate behavior, and his thought process and communication
were not impaired. R. 227. However, his social functioning was impaired because he isolated
On May 8, 2012 Mr. Montoya presented to Excel Physical & Occupational Therapy, P.C.
for a functional capacity assessment for purposes of his disability benefits claim. See R. 305.
Barbara Kelly, PT, opined that Mr. Montoya was incapable of stooping, crouching, kneeling,
climbing stairs, repetitive reach overhead with either hand, pulling, or low lift. Id. However, she
found that Mr. Montoya was capable of pushing at the light level; high lift, mid lift, and carrying
at the sedentary level; constant handling and fingering of the right hand; frequent handling and
fingering of the left hand; and occasional walking, reaching immediately with the left and right
hands, sitting, and standing. Id.
On May 14, 2012 Mr. Montoya met with consultative psychologist Brad Marten, Psy.D.
See R. 327. Dr. Marten found that Mr. Montoya displayed adequate levels of sustained
persistence and pace throughout the examination as well as fully intact levels of active
concentration and more passive focus and attention. R. 333. Dr. Marten concluded that these
findings suggest “intact ability to actively concentrate on instructions and tasks as well as carry
out the same presented to [Mr. Montoya] auditory [sic] in workplace settings.” R. 333. He also
found that Mr. Montoya would likely “be able to adequately attend to simpler instructions and/or
tasks as well as carry out the same in workplace settings.” Id. The only limitation noted was a
moderate to significant limitation concerning delayed auditory recall, which “will likely
negatively impact [Mr. Montoya’s] ability to consolidate and retrieve pertinent auditory verbal
information in workplace settings to a moderate to marked degree.” Id. With respect to social
functioning, Mr. Montoya indicated “a stable level of psychosocial functioning without any
significant improvement or deterioration within the past month relative to any time in the past
year.” R. 334. Overall, Dr. Marten diagnosed Mr. Montoya with Posttraumatic Stress Disorder;
Major Depressive Disorder: Recurrent, Mild; Alcohol Dependence, In Full Sustained Remission;
and Cannabis Abuse, In Full Sustained Remission. R. 333, 334.
Upon request, Mr. Montoya received a hearing with ALJ Burgchardt on May 16, 2012.
During the hearing, Mr. Montoya testified that he had been unemployed since May 9, 2011 but
that he had been receiving unemployment insurance (UI) benefits since the third quarter of 2011.
R. 26. As the ALJ noted, to receive UI benefits an applicant must certify to the State that he is
able and looking for work. Id. Mr. Montoya explained that he had only been looking for
sedentary work that he could perform with his limitations, but that nobody would hire him. R.
26–27. Mr. Montoya further explained that when applying for benefits he did not believe he
could work full-time but that he would have taken part-time work if it had been offered. R. 41.
Mr. Montoya further testified that he could not work even if he had a sit/stand option
unless he had the ability to walk around for 15–20 minutes every hour or two. R. 44. He
claimed that Dish gave him a position like this, but that he was still unable to perform his work
duties. 1 R. 43–44. And he contends that this is ultimately why he was laid off. However, Mr.
Montoya does not explain how he was actively looking for sedentary work while knowingly
needing to leave his work station to walk for 15–20 minutes every hour or two.
With respect to his obesity, Mr. Montoya testified that he walks 30 minutes a day and that
as a result he had lost 40 pounds in nine months. R. 32, 45–46. He explained that his doctors at
the VA encouraged him to lose weight with the anticipated effect that it would help alleviate his
Notably, nothing in the record indicates that Dish ever changed Mr. Montoya’s essential job functions
from satellite installer to a position where he could work indoors at a desk all day. In fact, the medical
treatment records from May 9, 2011 (the day Mr. Montoya lost his employment) indicate that Mr.
Montoya had been working for Dish for five years “but has been calling in sick the past four months
because he cannot climb ladders and feels unsafe on the roof.” R. 292.
knee and back problems. R. 45–46. In spite of his weight loss, he testified that his knee pain
remains the same and that his back has gotten worse. R. 49.
Finally, Mr. Montoya discussed his depression, explaining that as his depression has
gotten worse he has become angry more quickly. R. 47. He describes getting short with people,
though not with his family members. Id. When asked about his medication, he explained that he
feels more anxious when he takes it and agreed that it was not helping him with his mood. R. 36.
At the end of the hearing the ALJ heard testimony from a Vocational Expert (VE). The
ALJ asked the VE a series of hypothetical questions regarding a person with Mr. Montoya’s age
(46 at that time), education, work experience, and residual functional capacity. The VE testified
that such a person could perform Mr. Montoya’s past relevant work as a postal worker (mail
sorter). R. 52. The VE also explained that such a person could perform other jobs existing in
significant numbers in the national economy such as small products assembler, cashier II, and
collator/operator. R. 53–54. The VE affirmed that his testimony was consistent with
occupational descriptions and characteristics as provided in the Dictionary of Occupational Titles
and its companion publications as well as with his experience as a vocational expert. R. 54–55.
Denial of the Claim
To qualify for disability insurance benefits, an individual must (a) meet the insured status
requirements of the Social Security Act (the “Act”); (b) not have attained retirement age; (c) file
an application; and (d) be under a “disability” as defined in the Act. 42 U.S.C § 423(a)(1).
Disability is defined as being unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C § 423(d)(1)(A). The claimant carries the burden of establishing that he was
disabled prior to his date last insured. See Flaherty v. Astrue, 515 F.3d 1067, 1069 (10th Cir.
The Social Security Administration uses a five-part process to determine whether a
claimant qualifies for disability insurance benefits. 20 CFR § 404.1520. At step one the ALJ
must determine whether the claimant is engaging in substantial gainful activity. 20 CFR §
404.1520(a)(4)(i). The ALJ found that Mr. Montoya had not engaged in substantial gainful
activity since May 9, 2011, his alleged onset date. R. 12.
At step two the ALJ must determine whether the claimant has a medically determinable
impairment that is “severe” or a combination of impairments that are “severe.” 20 CFR §
404.1520(a)(4)(ii). The ALJ found that Mr. Montoya suffered from the following severe
impairments: degenerative disc disease, osteoarthritis of the knee, and depression. R. 13. The
ALJ found that the following impairments were non-severe: history of alcohol abuse, obesity,
diabetes, and hyperglycemia. Id.
At step three the ALJ must determine whether the claimant’s impairment or combination
of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part
404, Subpart P, Appendix 1 (the “Listings”). 20 CFR § 404.1520(a)(4)(iii). The ALJ
determined that none of Mr. Montoya impairments—alone or in combination—met or medically
equaled one of the listed impairments in the Listings. R. 13.
Before reaching step four, the ALJ is required to determine the claimant’s residual
functional capacity (“RFC”). See R. 16; 20 CFR § 404.1520(a)(4)(iv). An RFC represents “the
most [a claimant] can still do despite his limitations.” 20 CFR § 404.1545(a)(1). The RFC is
“the claimant’s maximum sustained work capability.” Williams v. Bowen, 844 F.2d 748, 751
(10th Cir. 1988). The ALJ found that Mr. Montoya has an RFC to perform light work as defined
in 20 CFR § 404.1567(b) with the following limitations: claimant would require unskilled work
with a specific vocational preparation (SVP) of one or two; could lift and/or carry ten pounds
frequently and twenty pounds occasionally; could stand and/or walk with normal breaks for a
total of four hours in an eight hour workday; could sit with normal breaks for a total of six hours
in an eight hour workday; would require a sit/stand option while remaining at the workstation,
meaning he could sit/stand at will while performing assigned duties; could perform pushing and
pulling motions with his upper and lower extremities within the aforementioned weight
restrictions but pushing and pulling with the right lower extremity would be on an occasional
basis; should avoid unprotected heights and moving machinery; and could occasionally climb,
stoop, crouch, kneel, and crawl but should not climb ladders, ropes, or scaffolds. R. 15.
At step four the ALJ must determine whether the claimant has the residual functional
capacity to perform the requirements of his past work. 20 CFR § 404.1520(a)(4)(iv). The ALJ
found that Mr. Montoya could perform some past relevant work, specifically as a postal worker
(mail sorter). R. 18. Even after making this determination, the ALJ proceeded to step five to
make alternative findings. See id.
At step five the ALJ must determine whether the claimant is able to do any other work
that exists in significant numbers in the national economy considering the claimant’s RFC, age,
education, and work experience. 20 CFR § 404.1520(a)(4)(v). The ALJ found that Mr. Montoya
was limited to unskilled work. Relying on the testimony of a Vocational Expert (“VE”), the ALJ
found that Mr. Montoya would be able to perform the requirements of representative occupations
such as small products assembler, cashier II, and collator operator, all of which exist in
significant numbers in the national economy. R. 19; see also R. 53–54.
Through counsel Mr. Montoya raises four issues on appeal. He claims that: (1) the ALJ’s
findings regarding his mental state were inconsistent, unclear, and unsupported by substantial
evidence; (2) the RFC is not based on substantial evidence and is instead contrary to the great
weight of the evidence; (3) the ALJ’s step four determination is not supported by substantial
evidence; and (4) the ALJ erred in her step five determination by failing to elicit sufficient
evidence establishing that Mr. Montoya could perform the essential functions of the
A. Mental State.
Mr. Montoya argues that the ALJ erred by making findings that were inconsistent,
unclear, and unsupported by substantial evidence regarding his mental impairments. In
particular, Mr. Montoya contends that the ALJ was inconsistent by finding that his depression
was a severe impairment while failing to assign any limitations based on his depression in the
RFC. Mr. Montoya alleges that his depression causes him to have significant difficulties
interacting with people outside his family, to avoid social situations, and to become more easily
angered, but that none of these limitations appear in the RFC. He also insists that there is a
discrepancy between the RFC and the ALJ finding that he had moderate limitations in his ability
to maintain concentration, persistence, and pace.
“[O]nce a mental impairment is considered to be severe, it must be included in the
residual functional capacity assessment.” Hargis v. Sullivan, 945 F.2d 1482, 1488 (10th Cir.
1991). The Commissioner contends that the ALJ’s finding that Mr. Montoya – who had a
history of skilled work – could perform only unskilled work with a SVP of only one or two
adequately accommodated the plaintiff’s mental health limitations. First, unskilled work
accounts for any mild limitations in Mr. Montoya’s social functioning, as the primary work
functions in the majority of unskilled work relate to working with things, rather than people. See
20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00(g). Furthermore, limiting the plaintiff to an SVP of
only 1 or 2, where his most recent work had an SVP of 6, took into account limitations in
concentration. See POMS DI 25020.010 § B(3) (noting that the capacity to perform unskilled
work includes ability to maintain attention for extended periods of two-hour segments, but
concentration is not critical). Unskilled work generally requires only the following: (1)
understanding, remembering, and carrying out simple instructions; (2) making judgments that are
commensurate with the functions of unskilled work--i.e., simple work- related decisions; (3)
responding appropriately to supervision, co-workers and usual work situations; and (4) dealing
with changes in a routine work setting. Social Security Ruling (SSR) 96-9P, 1996 WL 374185,
at *9 (July 2, 1996). 2 Mr. Montoya has not alleged, nor would the record support such an
allegation, that his depression would have prevented him from engaging in unskilled work.
With respect to Mr. Montoya’s limitations in the ability to maintain concentration,
persistence, and pace, these findings were made at step 3 of the evaluation process in order to
determine whether Mr. Montoya met or equaled a Listing. The ALJ found that for purposes of
that analysis, Mr. Montoya suffered “at most mild limitations in activities of daily living and
social functioning, moderate limitation[s] in maintenance of concentration, persistence and pace
with no episodes of decompensation of extended duration.” R. 14 (emphasis added). As such,
she concluded that he did not meet the “paragraph B” criteria under Listing 12.04. Yet “the
limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are not an RFC assessment
Social Security Rulings “are binding on all components of the Social Security Administration.” 20
C.F.R. § 402.35(b)(1). The rulings represent “precedent final opinions and orders and statements of
policy and interpretations that [the Commissioner has] adopted.” Id. They are to be relied upon as
precedents in adjudicating cases. See Social Security Rulings: Preface, available at
but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential
evaluation process.” SSR 96-8P, 1996 WL 374184, at *4 (July 2, 1996). And “[t]he mental
RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in the broad categories found in
paragraphs B and C . . . .” Id. The Tenth Circuit has likewise reasoned that an ALJ is under no
obligation to include limitations from the B-criteria in the RFC assessment. Beasley v. Colvin,
520 F. App’x 748, 754 (10th Cir. 2013). Mr. Montoya, on whom the burden of proof falls, failed
to file a reply brief, and as such has offered no competing legal authority. Based on the
arguments presented, the Court agrees with the Commissioner that this argument must fail.
B. RFC Assessment.
Mr. Montoya contends that the RFC assessment was contrary to the great weight of the
evidence and based on inadequate findings of fact. First, Mr. Montoya claims that the report of
Dr. Otten, on which the ALJ partially relied, is flawed because his diagnoses and objective
results were inconsistent with his functional capacity assessment. For example, in spite of
diagnosing Mr. Montoya with moderate-to-severe 3-compartment right knee osteoarthritis, Dr.
Otten opined that there was no limit to how many hours Mr. Montoya could stand in an 8-hour
workday. Yet Mr. Montoya admits that the ALJ did not adopt this opinion into her RFC. Still,
he contends that “this obvious logical inconsistency casts a pall over all of Dr. Otten’s functional
capacity determinations, including those relied upon by the ALJ.” [ECF No. 13 at 14]. While
Dr. Otten’s RFC assessment in this respect may have been logically flawed, so too is this
argument. If Mr. Montoya were correct, then an ALJ could only rely on medical opinions to
which she gave controlling weight. Yet the ALJ is tasked with determining whether a medical
opinion is consistent with the record as a whole when deciding what weight to give it. See
C.F.R. § 404.1527(c). And when partial or little weight is given to an opinion, that implicitly
necessitates that parts of that opinion – for example inconsistent aspects of it – will be discounted
or rejected outright. Mr. Montoya fails to put forward any argument that portions of Dr. Otten’s
opinion were inappropriately incorporated into the RFC. As such, his argument must fail.
Second, Mr. Montoya contends that although the ALJ explained what weight she gave to
each medical opinion in the record, she did not explicitly state what medical evidence she relied
on in assigning an RFC to Mr. Montoya. Instead, he claims she cited almost entirely nonmedical evidence, such as Mr. Montoya’s reported activities, while discounting medical
evidence. The Court disagrees. ALJ Burgchardt explicitly stated which medical evidence she
relied on, and to what extent and why, when developing the RFC. In reviewing her opinion, she
devoted nearly three full pages to a discussion of the medical records (which are quite minimal in
this case) and to how they were incorporated into the RFC. See R. 15–18. At times she also
gave the plaintiff the benefit of the doubt by adding limitations to his RFC based on his
subjective complaints and on medical opinions with which she did not fully agree.
Finally, Mr. Montoya fails to allege additional restrictions that should have been
incorporated into his RFC. As such, the Court is at a loss for what to do; it is unclear what
restrictions Mr. Montoya believes the ALJ should have included from the medical evidence on
file. Instead, Mr. Montoya’s argument seems to be based in a procedural concern that the ALJ
failed to explicitly identify the medical providers and treatment records she relied on in assessing
his RFC. See [ECF No. 13 at 14]. The Court has rejected that contention. Furthermore, based
on an independent review of the record, the Court finds that the RFC assessment is supported by
C. Step Five Analysis.
Mr. Montoya argues that the ALJ erred when she made no specific, meaningful findings
of fact regarding the discrepancies between the jobs in the national economy she determined Mr.
Montoya could perform and these jobs’ descriptions in the Dictionary of Occupational Titles
(DOT), the Selected Characteristics of Occupations (SCO), and the description notes to the DOT.
As discussed above, at step five the ALJ concluded that there were jobs that exist in
significant numbers in the national economy that Mr. Montoya could perform. Those jobs
included such representational categories as small products assembler, cashier II, and
collator/operator. Mr. Montoya contends that there was a conflict between the DOT descriptions
and the testimony of the VE during the hearing which the ALJ had an affirmative responsibility
to investigate, but which she failed to do.
First, Mr. Montoya argues that the descriptions of the representational occupations
conflict with the ALJ’s finding that he had moderate limitations in concentration, persistence,
and pace. This contention is merely a rehashing of the earlier arguments concerning the RFC.
Because the Court has concluded that the RFC was based on substantial evidence in the record,
any argument relying on its inaccuracies is moot.
Next, the plaintiff argues that it is error for one of the occupations to require the ability to
listen and understand information and ideas presented through spoken words and sentences
“despite the great weight of the evidence that the claimant had difficulty processing auditory
information.” [ECF No. 13 at 17–18]. First, there is only one opinion on the record concerning
Mr. Montoya’s auditory skills, the opinion of Dr. Marten. And Mr. Montoya’s characterization
of Dr. Marten’s opinion is inaccurate. Though Dr. Marten opined that Mr. Montoya may suffer
from “moderate to marked impairment re: delayed auditory memory recall,” R. 324, he also
concluded that Mr. Montoya had an “intact ability to actively concentrate on instructions and
tasks as well as carry out the same presented to him auditory [sic] in workplace settings,” R. 333.
Furthermore, the ALJ sufficiently discussed and discounted the earlier portion of Dr. Marten’s
opinion in her RFC assessment. R. 17. And the Court rejects this form of collateral attack on the
Finally, Mr. Montoya complains that the ALJ failed to inquire of the VE or make specific
findings regarding the sit/stand option included in his RFC, which would allow Mr. Montoya to
sit or stand at will while remaining at his work station. This assertion is inaccurate. The ALJ
explicitly asked the VE whether an individual with the same age, education, and past work
experiences as Mr. Montoya with the RFC she assigned him (including the sit/stand option)
could perform work existing in significant numbers in the national economy. R. 53–54. The VE
answered that all of the representational occupations listed above would remain viable work
options. R. 54. Mr. Montoya also alleges that because the DOT itself does not discuss sit/stand
options, the ALJ was required to elicit evidence regarding the sit/stand option on the availability
of employment and to make findings about it. Yet that is precisely what the ALJ did when she
asked the VE, a vocational expert, to testify as to the effects of the sit/stand option. Mr. Montoya
presents no authority that this type of inquiry does not satisfy the requirement to elicit evidence.
The Commissioner, on the other hand, cites to Thompson v. Colvin, 551 F. App’x 944, 949 (10th
Cir. 2014), in support of her position that an ALJ may rely on the testimony of a VE where “the
VE testified that the jobs he identified were consistent with a hypothetical person with [the
claimant’s] impairments and the DOT.” The Court agrees.
D. Past Relevant Work.
Mr. Montoya argues that the ALJ failed to engage in the appropriate analysis at step four
when determining that he could return to his past relevant work as a postal worker. The step four
finding that Mr. Montoya could perform past relevant work was an alternative finding that Mr.
Montoya was not disabled and that he could perform work in the national economy. This
argument is moot in light of the Court’s finding that the step five analysis was without error.
The decision of the Commissioner is AFFIRMED.
DATED this 29th day of December, 2014.
BY THE COURT:
R. Brooke Jackson
United States District Judge
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