Butts v. Colvin
ORDER re: 15 SOCIAL SECURITY ADMINISTRATIVE RECORD. IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not disabled is AFFIRMED. IT IS FURTHER ORDERED that each party shall bear its own costs and attorneys fees, by Magistrate Judge Kristen L. Mix on 9/15/15. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01958-KLM
ELIZABETH A. BUTTS,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#15],2 filed October 2, 2014, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for disability
insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq., and for supplemental security income benefits pursuant to Title XVI of the Act, 42
U.S.C. § 1381 et seq. On January 5, 2015, Plaintiff filed an Opening Brief [#18] (the
“Brief”). Defendant filed a Response [#21] (the “Response”) in opposition, and Plaintiff
filed a Reply [#22]. The Court has jurisdiction to review the Commissioner’s final decision
The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See Order of Reference [#27].
“[#15]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
under 42 U.S.C. §§ 405(g) and 1383(c). The Court has reviewed the entire case file and
the applicable law and is sufficiently advised in the premises. For the reasons set forth
below, the decision of the Commissioner is AFFIRMED.
I. Factual and Procedural Background
Plaintiff alleges that she became disabled at the age of thirty-nine on March 1, 2007,
due to migraines and post-traumatic stress disorder (“PTSD”). Tr. 135, 140.3 On February
7, 2008, Plaintiff protectively filed applications for disability insurance benefits under Title
II and for supplemental security income under Title XVI. Tr. 18. On November 17, 2009,
a hearing was held before an Administrative Law Judge (the “ALJ”). Tr. 18. On January
29, 2010, the ALJ entered his Decision, finding that Plaintiff was “not disabled under section
1614(a)(3)(A) of the Social Security Act.” Tr. 27. The case was appealed to the United
States District Court for the District of Colorado and remanded for further proceedings. Tr.
329. “Pursuant to the District Court remand order, the Appeals Council . . . directed the
[ALJ] . . . to articulate an assessment of all of the factors found in 20 CFR 404.1527,
including an explanation as to why Dr. McInroy’s assessment was rejected.” Tr. 329. On
remand, the ALJ held three additional hearings. Tr. 329. On August 9, 2013, Dr. McInroy
testified on behalf of Plaintiff. Tr. 329. Plaintiff testified on August 12, 2013, and on
January 23, 2014. Tr. 329. Jack LeBeau (“LeBeau”), an impartial medical expert, and
Bonnie Martindale, an impartial vocational expert (“VE”), also testified on January 23, 2014.
The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 15, 15-1, 15-2, 15-3, 15-4, 15-5, 15-6, 15-7, 15-8, 15-9, 15-10, 15-11, 15-12, 15-13, 15-14,
15-15, 15-16, 15-17, and 15-18 by the sequential transcript numbers instead of the separate docket
On February 4, 2014, the ALJ entered his second Decision, again finding that
Plaintiff was “not disabled under section 1614(a)(3)(A) of the Social Security Act.” Tr. 34748. The ALJ determined that Plaintiff met the insured status requirements of the Act
through December 31, 2015, and that Plaintiff had not engaged in substantial gainful
activity (“SGA”) since March 1, 2007 (the alleged onset date of her disability), except for
July 2010 through February 2013. Tr. 331-32. The ALJ found that Plaintiff suffers from two
severe impairments: (1) migraine headaches, and (2) PTSD. Tr. 332. However, the ALJ
also found that these impairments, individually or in combination, do not meet or medically
equal “the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).”
Tr. 333. The ALJ next concluded that Plaintiff has the residual functional capacity (“RFC”)
to perform a full range of work activities with the following limitations:
The claimant should not be required to lift and carry more than 20 pounds
occasionally and 10 pounds frequently. The claimant should not be required
to work at unguarded heights or near unguarded hazardous mechanical
equipment. The clamant should not be required to do more than simple,
unskilled work activities. The claimant should not be required to have more
than superficial interaction with co-workers and should not be required to
interact with the public. The claimant should not be required to adapt to more
than simple changes in a routine work setting more often than on a weekly
Tr. 334. Based on the RFC and the testimony of the VE, the ALJ found that Plaintiff was
unable to perform any past relevant work but that “there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform . . . .” Tr. 345-46. Specifically,
based on the testimony of the VE, the ALJ concluded that Plaintiff could perform the
representative occupations of a router and a marker. Tr. 346. He therefore found Plaintiff
not disabled at step five of the sequential evaluation. Tr. 347. The ALJ’s decision has
become the final decision of the Commissioner for purposes of judicial review. 20 C.F.R.
§§ 404.981, 416.1481.
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. §§ 423(d)(3),
“When a claimant has one or more severe impairments the Social Security [Act]
requires the [Commissioner] to consider the combined effects of the impairments in making
a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)
(citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or
combination of impairments does not require a finding that an individual is disabled within
the meaning of the Act. To be disabling, the claimant’s condition must be so functionally
limiting as to preclude any substantial gainful activity for at least twelve consecutive
months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, 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) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
The Social Security Administration uses a five-step framework to determine whether
a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through
four, and if the claimant fails at any of these steps, consideration of any subsequent steps
is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“If a determination
can be made at any of the steps that a claimant is or is not disabled, evaluation under a
subsequent step is not necessary.”). The Commissioner bears the burden of proof at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next,
at step three, the ALJ considers whether a claimant’s medically severe impairments are
equivalent to a condition “listed in the appendix of the relevant disability regulation,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent her from performing her past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether she possesses the sufficient [RFC] to perform
other work in the national economy.” Id.
An ALJ must consider all evidence and explain why he or she finds a claimant not
disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence “must be based upon the
record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “if the ALJ failed to apply the
correct legal test, there is a ground for reversal apart from a lack of substantial evidence.”
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Plaintiff requests judicial review of the ALJ’s decision denying her disability
insurance benefits and supplemental security income. Brief [#18] at 4-5. Specifically,
Plaintiff argues that the ALJ erred in his analysis of the treating psychologist’s opinion and
in making certain findings which Plaintiff asserts violate agency policy. See id. at 2.
The Medical Opinion of Treating Psychologist Dr. McInroy
In accordance with an instruction given by the District Court, the ALJ conducted a
significant and in-depth analysis of Dr. McInroy’s opinions. See Tr. 337-45. Plaintiff argues
that the ALJ failed to articulate good reasons for affording his various opinions “very little
weight” or “no weight” at all. Id. at 14-18; Tr. 342, 344.
An ALJ must give the opinion of a treating physician controlling weight only when it
is both: (1) “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and (2) “consistent with other substantial evidence in the record.” Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). “[I]f the opinion is deficient in either of
these respects, then it is not entitled to controlling weight.”
Even if a treating
physician’s medical opinion is not entitled to controlling weight, however, “[t]reating source
medical opinions are still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.
1989). Those factors are:
(1) the length of the treatment relationship and the frequency of examination;
(2)the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5) whether or
not the physician is a specialist in the area upon which an opinion is
rendered; and (6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c).
Although the six factors listed above are to be considered in weighing medical opinions, the
Court does not insist on a factor-by-factor analysis so long as the “ALJ’s decision [is]
‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.’” Oldham,
509 F.3d at 1258 (quoting Watkins, 350 F.3d at 1300).
Plaintiff primarily discusses the opinions of Dr. McInroy, Plaintiff’s treating
psychologist, as they relate to the opinions of Dr. LeBeau, the impartial medical expert who
testified before the ALJ. The ALJ afforded “great weight” to the opinion of Dr. LeBeau
concerning claimant’s migraine headaches and physical impairments, but not to his opinion
regarding her psychological impairments. Tr. 344. Plaintiff’s primary argument seems to
be that Dr. LeBeau assumed a state of the record that was not correct, while Dr. McInroy
took into account the totality of Plaintiff’s impairments. Brief [#18] at 17-18. Plaintiff argues
that Dr. LeBeau “premised his testimony on the absence of a finding of intractable
headaches.” Id. at 17 (citing Tr. 391). Plaintiff argues that the record belies this basis for
his opinion. Brief [#18] at 17 (citing Tr. 209 (January 2007 statement by Deborah G.
Fisher, M.D. (“Dr. Fisher”), stating that Plaintiff was not responding to one medication and
therefore a different medication would be tried); 806 (March 2012 statement by Cori Millen,
D.O., cryptically stating “chronic migraine without aura with intractable migraine so stated
without mention of status migrainosus” [sic]), 986 (same), 989 (same), 992 (same)).
However, the Court notes that Plaintiff told Dr. Fisher that “[i]f she treats her headache
early in the course of its onset, medications can stop the migraine or decrease its intensity,
but this is not consistent.” Tr. 210. Plaintiff also testified before the ALJ that medication
can decrease the frequency and intensity of her migraine episodes, although not totally
eliminate them. Tr. 421. In November 2011, Plaintiff told another medical provider that the
migraine symptoms were “moderate” in severity and were “improving,” and were relieved
by various medications. Tr. 1010.
In short, given the state of the evidence, the Court cannot find that Dr. LeBeau erred
in his assessment of the medical record. See Brief [#18] at 17. However, even were the
Court to second-guess this medical opinion and find that the ALJ should have given less
weight to Dr. LeBeau’s opinion, Plaintiff’s argument that Dr. McInroy’s opinion should then
be given greater weight is still without merit. As the ALJ noted, “Dr. McInroy’s qualifications
per his own testimony are in the field of psychology and therapy. Therefore he is not
qualified to give opinions on the claimant’s physical [RFC]. In addition, Dr. McInroy has not
treated the claimant for migraines and has performed no physical assessments or
examination of the claimant.” Tr. 344-45. A similar issue arose in Miller v. Astrue, 496 F.
App’x 853, 859 (10th Cir. 2012). In that case, the Tenth Circuit Court of Appeals stated:
We also reject Ms. Miller’s argument that the ALJ erred in not including
limitations in her RFC due to hand pain and limited dexterity because a
psychological consultative examiner, John Hickman, Ph.D., noted that she
reported pain in her hands while using a dynamometer and that her “fine
motor dexterity was markedly slow with her right hand.” Further, Ms. Miller’s
assertion—without citation to any authority—that a psychologist is qualified
to render an opinion regarding a claimant’s physical impairment, is without
Miller, 496 F. App’x at 659 (internal citations omitted) (citing Buxton v. Halter, 246 F.3d 762,
775 (6th Cir. 2001) (observing that a psychologist “was not qualified to diagnose”
“underlying physical conditions”); 20 C.F.R. § 404.1527(c)(5) (“We generally give more
weight to the opinion of a specialist about medical issues related to his or her area of
specialty than to the opinion of a source who is not a specialist”), id. § 416.927(d)(5)
(same)). Thus, the Court finds that the ALJ did not err in his assessment of Dr. McInroy’s
opinion in comparison to Dr. LeBeau’s opinion.
Plaintiff also argues that the ALJ erred by discussing the onset of a panic attack
when Plaintiff allegedly incurred while attending a basketball game. Brief [#18] at 16.
Plaintiff argues that this episode merely demonstrates that Plaintiff tried and failed to
socialize and that Plaintiff should not be penalized for her attempt. Brief [#18] at 16.
However, the Court first notes that it was not Plaintiff (as stated in the Brief), but rather
Plaintiff’s daughter who had a panic attack which resulted in the family having to leave the
basketball game. Tr. 320. The ALJ correctly made this distinction. Tr. 337. Plaintiff has
failed to direct the Court’s attention to any evidence that she also had a panic attack at the
game. As the ALJ noted, Plaintiff’s attendance at this game “is inconsistent with the
claimant’s allegations of a complete lack of ‘social life’ and her other reports to Dr. McInroy
of isolating and being unable to leave home.”
In other words, Plaintiff’s
attendance at the basketball game with no discernible problems does not support her
assertion of total isolation and inability to socialize. The Court finds no error in the ALJ’s
citation to this evidence in support of his Decision.
To the extent Plaintiff argues that the ALJ’s choice to disregard Dr. McInroy’s opinion
is not supported by substantial evidence, the Court disagrees. See Brief [#18] at 14-16.
Plaintiff directs the Court’s attention to no legal authority in support of her argument except
the broad proposition that the record must be reviewed as a whole. See id. at 15 (citing
Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014)). The ALJ must consider medical
opinions in the context of the record as a whole to evaluate their consistency and may
reasonably discount opinions that are inconsistent with other medical evidence. 20 C.F.R.
§ 404.1527(c)(4); Raymond v. Astrue, 621 F.3d 1269, 1272, (10th Cir. 2009). When
considering the ALJ’s evaluation of a physician’s opinion, the Court looks to whether the
“ALJ’s decision [is] ‘sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for
that weight.’” Oldham, 509 F.3d at 1258 (quoting Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003)). The Court has thoroughly examined the ALJ’s opinion in this regard
and finds that the ALJ has clearly met this standard. See, e.g., Hendron, 767 F.3d at 954
(“The RFC assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations).”) (quoting Social Security Ruling
(SSR) 96–8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996)).
Accordingly, the Court finds that the ALJ has not committed reversible error with
respect to his treatment of Dr. McInroy’s opinions. Glenn v. Shalala, 21 F.3d 983, 988
(10th Cir. 1994) (explaining that the Court must affirm if, considering the evidence as a
whole, there is sufficient evidence which a reasonable mind might accept as adequate to
support a conclusion).
When eliciting her opinion, the ALJ told the VE: “By superficial interaction what I
mean is it . . . doesn’t involve complexity or discussion or solving problems or getting into
any kind of controversy that would lead to that just superficial [sic]. In other words, she
could be in verbal discussions with co-workers but it would be on such simple things as a
co-worker bringing a box of product over here with the instructions from the boss that he
wants you to do this next kind of thing.” Tr. 410. Plaintiff argues that “[o]nce the ALJ found
that [Plaintiff] could not tolerate more than superficial interaction with coworkers and
included supervisors and their instructions in that limitation, agency policy demands the
finding of an inability to engage in [SGA] despite an otherwise positive vocational profile of
youth, education, and skilled past relevant work.” Brief [#18] at 14.
Plaintiff relies on the Social Security Administration’s Program Operations Manual
System (“POMS”), which provides guidance to the Commissioner and, as is relevant here,
includes a description of policy concerning mental limitations.4 See POMS DI 25020.010,
2001 WL 1933437. Regarding mental abilities critical for performing unskilled work, POMS
The POMS is “a set of policies issued by the Administration to be used in processing
claims.” Carver v. Colvin, 600 F. App’x 616, 618 n.1 (10th Cir. 2015) (quoting McNamar v. Apfel,
172 F.3d 764, 766 (10th Cir. 1999). The Court “defer[s] to the POMS provisions unless [the Court]
determine[s] they are ‘arbitrary, capricious, or contrary to law.’” Id. POMS “are not products of
formal rulemaking” entitled to Chevron deference, but “they nevertheless warrant respect” under
the broader Skidmore framework. Gragert v. Lake, 541 F. App’x 853, 856 n.1 (10th Cir. 2013)
(citing Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371,
385-86 (2003) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944))). As interpretations
of the SSA’s own regulations, POMS are “controlling unless plainly erroneous or inconsistent with
the regulation.” Gragert, 541 F. App’x at 856 n.1 (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)
(internal quotation marks omitted)).
states that a person must have the ability to “accept instructions and respond appropriately
to criticism from supervisors,” “get along with coworkers or peers without (unduly)
distracting them or exhibiting behavioral extremes,” and “respond appropriately to changes
in a (routine) work setting.” Id. ¶¶ B.3.k.-m.
Defendant argues that Plaintiff misstates the ALJ’s RFC finding and the agency’s
policy as found in the POMS. Response [#21] at 23. First, Defendant notes that the POMS
is persuasive but lacks the force of law. Id. at 23 n.7 (citing Neikirk v. Massanari, 13 F.
App’x 847, 849 (10th Cir. 2001)). Next, Defendant notes that “the POMS expressly
provides that it is the ALJ’s duty to determine—based on ‘professional judgment, on the
basis of the evidence on file in each case’— whether or not a claimant has a substantial
loss of ability to meet the basic mental demands of unskilled work.” Response [#21] at 23
(citing POMS DI 25020.010(3), 2001 WL 1933437). Defendant argues that “the ALJ
followed agency policy by consulting a vocational expert when the impact of Plaintiff’s
limitations was not immediately clear.” Response [#21] at 24 (citing 20 C.F.R. § 404.1566
(e) (providing that the agency may rely on the testimony of a vocational expert when there
is a “complex issue”); SSR 96-9p, 1996 WL 374185, at *9 (“When an individual has been
found to have a limited ability in one or more of these basic work activities, it may be useful
to consult a vocational resource.”); POMS DI 25020.010(A)(3), 2001 WL 1933437).
Plaintiff cites to SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000), for the
proposition that the ALJ may never rely on vocational expert testimony that deviates from
agency policy. Reply [#22] at 3. However, Plaintiff misreads this SSR, which states that
“SSA adjudicators may not rely on evidence provided by a VE . . . if that evidence is based
on underlying assumptions or definitions that are inconsistent with our regulatory policies
or definitions.” However, the POMS is not a set of regulations; rather, it merely interprets
agency regulations. See Gragert, 541 F. App’x at 856 n.1. SSR 00-4p merely requires the
ALJ to resolve any conflict between the Dictionary of Occupational Titles (“DOT”) and the
VE by “determining if the explanation given by the VE is reasonable and provides a basis
for relying on the VE . . . testimony rather than on the DOT information.” The explanation
provided by the VE must not conflict with agency regulations. SSR 00-4p, 2000 WL
1898704, at *2.
Plaintiff overstates the statements made by the ALJ and the VE in order to create
a mountain out of a molehill regarding whether Plaintiff could accept criticism of her work
from a supervisor. First, the Court cannot agree that the ALJ included “supervisors and
their instructions” in his comment. Brief [#18] at 14. If anything, he appears to have
specifically differentiated supervisors from co-workers when discussing how a “co-worker”
bringing instruction from the “the boss” constitutes an example of superficial interaction.
Tr. 410. Nowhere does the Court find evidence in the ALJ’s hypothetical that Plaintiff is
unable to interact appropriately with a supervisor, have basic interaction with co-workers,
or respond to occasional changes in a routine work setting. Tr. 410.
Further, even if supervisors were included in the ALJ’s “superficial interaction”
statement regarding co-workers, Plaintiff’s argument nevertheless fails. The Tenth Circuit
Court of Appeals recently addressed a similar issue in Carver v. Colvin, 600 F. App’x 616,
618-20 (10th Cir. 2015). There, the Tenth Circuit held that “[i]nteracting with supervisors
in the course of routine supervision over simple work is tantamount to the ‘superficial’
interaction typically encountered in jobs involving such work. To conclude otherwise would
parse the ALJ’s language too finely.” Carver, 600 F. App’x at 620. The reasoning applies
equally to the present case, where the ALJ found that Plaintiff “should be limited to work
requiring . . . no more than superficial interaction with co-workers” and “should not be
required to adapt to more than simple changes in a routine work setting” while doing no
“more than simple unskilled work activities.” Tr. 342.
Accordingly, the ALJ has not committed reversible error with respect to this issue.
See Glenn, 21 F.3d at 988.
For the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is AFFIRMED.
IT IS FURTHER ORDERED that each party shall bear its own costs and attorney’s
Dated: September 15, 2015
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