Smith v. Colvin

Filing 23

ORDER: Decision of the Commissioner is AFFIRMED. by Judge R. Brooke Jackson on 12/2/16. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 15-cv-02563-RBJ
GREGORY D. SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on review of the Commissioner’s decision denying
claimant Gregory D. Smith’s application for Disability Insurance Benefits and Supplemental
Security Income under Title II and Title XVI of the Social Security Act. Jurisdiction is proper
under 42 U.S.C. § 405(g). For the reasons explained below, the Court affirms the
Commissioner’s decision.
I.

Standard of Review.

This appeal is based upon the administrative record and the parties’ briefs. 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). A decision is not based on substantial evidence if it is
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“overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.
1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.”
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it
“constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
Regarding the application of law, “reversal may be appropriate when the [Social Security
Administration] Commissioner either applies an incorrect legal standard or fails to demonstrate
reliance on the correct legal standards.” Springer v. Astrue, No. 11-cv-02606, 2013 WL 491923,
at *5 (D. Colo. Feb. 7, 2013).
II.

Background.

Mr. Smith was born in 1989 and is now 27 years old. See R. 205. He has suffered from
anxiety disorders for his entire life. R. 250. He was enrolled in special education classes in high
school and graduated in 2008. R. 237. After graduation he worked short stints as a janitor, as a
laborer, and in several other lines of work. R. 222–23, 238.
Mr. Smith has not been able to hold a job because of the social demands he has faced at
work, which trigger his severe social anxiety. R. 77. In 2009, for instance, he was employed as
a janitor until he was required to work with a team of people on an intensive cleaning project. R.
85. He quit shortly thereafter. Id. In 2010, Mr. Smith worked for roughly six months at a car
wash until his manager insisted that he change positions and deal with customers. R. 86. He got
in an argument with his boss and quit. R. 87. Later that year he got a job working on an
assembly line and, after a bumpy start, was placed in a role where he would not have to interact
with other people while he worked. R. 88. He left that job after about six months, however,
when his family moved to Colorado. Id. He has not worked much since this move. R. 219–21.
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A. Procedural History.
On April 18, 2013 Mr. Smith applied for Disability Insurance Benefits based on his own
earnings, Child’s Insurance Benefits based on his father’s earnings, and Supplemental Security
Income, alleging disability beginning April 1, 2009. R. 205, 209, 215. The claims were initially
denied on July 2, 2013. R. 145, 149. Mr. Smith requested a hearing, which was held in front of
Administrative Law Judge (ALJ) John A. Beall on July 29, 2014. R. 66. The ALJ issued a
decision denying benefits on September 2, 2014. R. 48. The Appeals Council denied Mr.
Smith’s request for review on September 20, 2015, rendering the ALJ’s determination the final
decision of the Commissioner for purposes of judicial review. R. 1. Mr. Smith filed a timely
appeal in this Court.
B. The ALJ’s Decision.
The ALJ issued an unfavorable opinion after evaluating the evidence according to the
Social Security Administration’s standard five-step process. R. 51–64. First, he found that Mr.
Smith had not engaged in substantial gainful activity since his alleged onset date of April 1,
2009. R. 53. At step two, the ALJ found that Mr. Smith had the severe impairments of obesity,
bipolar disorder, attention deficit hyperactivity disorder, panic disorder with agoraphobia, social
phobia, and developmental learning disorder. R. 54. At step three, the ALJ concluded that Mr.
Smith did not have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R.
54–57.
The ALJ then found that Mr. Smith retained the residual functional capacity (RFC) to
perform a full range of work at all exertional levels but with nonexertional limitations restricting
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him to jobs that require: unskilled work; only simple job-related decisionmaking and few
workplace changes; at most brief, superficial interactions with the general public for no more
than 10% of his workday; at most occasional interaction with coworkers and supervisors; no
independent travel, travel to unfamiliar locations, or use of public transportation; no concentrated
exposure to workplace hazards; no operation of a motor vehicle; and no fast-paced or
production-line work. R. 57–62. At step four, the ALJ concluded that Mr. Smith had no past
relevant work. R. 62. Finally, at step five, the ALJ determined that there were jobs that existed
in significant numbers in the national economy that Mr. Smith could perform. R. 62–63.
Therefore, the ALJ concluded that Mr. Smith was not disabled. R. 63–64.
III.

Discussion.

Mr. Smith contends that the ALJ made numerous errors at step four in the RFC
determination and at step five in developing the vocational expert’s testimony. Specifically, Mr.
Smith argues that the ALJ improperly: (1) adopted some, but not all, of Dr. Madsen’s opinions;
(2) misused Mr. Smith’s Global Assessment of Functioning (GAF) scores; (3) failed to address
all of Dr. Wanstrath’s findings; (4) disregarded Ms. Gilbert’s and Dr. Abdullah’s opinions; (5)
gave Mr. Shaffner’s opinion about Mr. Smith’s RFC no weight; (6) applied the wrong standard
of disability; (7) made questionable credibility findings; and (8) failed to ask the vocational
expert a hypothetical question that accounted for all of Mr. Smith’s symptoms. The Court will
consider each argument in turn.

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A. Step Four.
1. Dr. Madsen.
Mr. Smith begins his litany of claims by arguing that the ALJ ignored Dr. Madsen’s
description of Mr. Smith’s symptoms and the doctor’s conclusion that these symptoms
“significantly interfere with his ability to work.” ECF No. 17 at 21–22. As he points out, “[t]he
ALJ is not entitled to pick and choose from a medical opinion, using only those parts that are
favorable to a finding of nondisability.” Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004). Later on Mr. Smith restates this same basic argument under a different heading, claiming
that because the RFC assessment ignores Dr. Madsen’s opinion, the ALJ had to explain why the
opinion was not adopted. ECF No. 17 at 23 (citing Social Security Ruling (SSR) 96-8p, 1996
WL 374184, at *7 (July 2, 1996)). Mr. Smith tenaciously advances this argument again a third
time, rewording his claim to assert that the ALJ “failed to discuss significantly probative
evidence he rejects.” Id. (quoting Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996))
(internal quotation marks omitted).
These arguments are unavailing. The ALJ adopted Dr. Madsen’s findings to the degree
that they are consistent with the record as a whole and adequately explained why he did not take
certain reports at face value. See R. 57, 61. In particular, the ALJ accounted for Dr. Madsen’s
medical findings in his step-two conclusion that Mr. Smith suffers from “panic disorder with
agoraphobia,” “social phobia,” and bipolar disorder. Compare R. 54, with R. 357. The step-four
RFC assessment adopts nonexertional limitations on Mr. Smith’s travel requirements for his
agoraphobia and interactions with the other people for his social phobia. R. 57. However, the
ALJ found reports of debilitating manic and depressive periods immaterial due to Mr. Smith’s
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work history after his alleged onset date without interference from these spells. R. 61. Dr.
Madsen’s conclusion that Mr. Smith’s symptoms “significantly interfere with his ability to
work” is not entitled to deference because “the ALJ, not a physician, is charged with determining
a claimant’s RFC from the medical record.” R. 357; Howard v. Barnhart, 379 F.3d 945, 949
(10th Cir. 2004). Nevertheless, this conclusion is reflected in the RFC’s nonexertional
limitations. See R. 57, 59.
2. GAF scores.
Next, Mr. Smith takes issue with the ALJ’s treatment of his GAF scores. He appears to
argue that no weight should be given to Dr. Madsen’s finding that he had a GAF score of 60,
which represents mild-to-moderate symptoms. ECF No. 17 at 22. He cites Harper v. Colvin as
saying that a GAF score “is not essential to the RFC’s accuracy.” Id. (citing 528 F. App’x 887,
891 (10th Cir. 2013) (unpublished)). This much is true. But the question is whether the ALJ
may consider a GAF score, not whether he must. Mr. Smith’s citation concedes that the ALJ
may use this GAF score, acknowledging that “a GAF score may be of considerable help to the
ALJ in formulating the RFC.” Harper, 528 F. App’x at 891.
In the same discussion, Mr. Smith cites the unpublished opinion in Petree v. Astrue for
the proposition that “a low GAF score does not alone determine disability, but is instead a piece
of evidence to be considered with the rest of the record.” ECF No. 17 at 23 (quoting 260 F.
App’x 33, 42 (10th Cir. 2007) (unpublished)). This quotation is irrelevant. The ALJ did
consider Mr. Smith’s GAF score as only one piece of evidence in the record. See, e.g., R. 59
(“Dr. Wanstrath concluded that . . . . the claimant can accept supervision and relate to coworkers
and the public, if the contact is not frequent.”); R. 60 (“Mr. Shaffner’s notes reflect the fact that
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the claimant held a job in Cedar Rapids, Iowa, where the claimant was making progress at work .
. . .”); R. 61 (“The record reflected no objective evidence of a worsening as reflected by his work
history, when the claimant’s functioning is mirrored against his pre-disability activities.”).
Additionally, Mr. Smith argues that there was a discrepancy between Dr. Madsen’s
findings of Mr. Smith’s symptoms and GAF score, requiring the ALJ to further develop the
record. ECF No. 17 at 23 (citing 20 C.F.R. § 404.1519p(b)). But Mr. Smith identifies no
inconsistency, and the Court sees none. Instead, as Mr. Smith’s brief acknowledges, “the GAF
score is not linked to any particular symptoms at all.” Harper, 528 F. App’x at 891.
Mr. Smith also claims that Dr. Madsen’s GAF score assignment is the only part of his
opinion that is consistent with Dr. Wanstrath’s opinion. ECF No. 17 at 24. Again, however, he
does not give any indication of how they might be incompatible. See id. Instead, the two
opinions appear to be compatible. Compare R. 59 (“Dr. Wanstrath concluded that the claimant .
. . . could not work closely with supervisors, coworkers or the general public on a frequent
basis.”), with id. (“Dr. Madsen concluded that the claimant was suffering from social anxiety that
significantly interferes with his ability to work.”); compare R. 119 (noting “[symptoms] of
anxiety disorder with agoraphobia” in Dr. Wanstrath’s opinion), with R. 357 (writing that Mr.
Smith “spends most of his time at home” in Dr. Madsen’s opinion).
Last, Mr. Smith claims that the ALJ ignored the August 2013 finding that Mr. Smith had
a GAF score of 45. However, the ALJ expressly addressed this finding and explained that he
gave it no weight because the GAF score of 60 from the same time period was more consistent
with the record as a whole. See R. 61. Mr. Smith may have been confused by the ALJ’s
misstating the name of the person who administered this GAF test; this was someone at
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AspenPointe, not Mr. Shaffner. See R. 464. But, “[w]here . . . we can follow the adjudicator’s
reasoning in conducting our review,” inconsequential typos “do not dictate reversal.” KeyesZachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
3. Dr. Wanstrath.
Mr. Smith claims that Dr. Wanstrath’s mental RFC assessment (MRFCA) did not address
two of the moderate psychological limitations he had identified. ECF No. 17 at 24–25. In an
unpublished opinion, the Tenth Circuit held that
if a consultant’s Section III narrative fails to describe the effect that each of the
Section I moderate limitations would have on the claimant’s ability, or if it
contradicts limitations marked in Section I, the MRFCA cannot properly be
considered part of the substantial evidence supporting an ALJ’s RFC finding.
Carver v. Colvin, 600 F. App’x 616, 619 (10th Cir. 2015) (unpublished). The Court does not
find this standard to be so stringent as to undermine the ALJ’s decision in this case.
Dr. Wanstrath’s summary conclusions about Mr. Smith’s capacity for sustained
concentration and persistence indicate that he has moderate limitations in: 1) “The ability to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances,” and 2) “The ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods.” R. 131–32. The doctor’s narrative
explanations provide in relevant parts that the “[consultative examination] notes adequate
persistence and pace” and “[c]laimant can . . . sustain ordinary routines.” R. 132.
In the Court’s view, these brief explanations sufficiently describe the effects of Mr.
Smith’s moderate mental limitations. These limitations both fall under the umbrella of
“persistence” restrictions. It is significant that after considering these specific limitations, Dr.
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Wanstrath nonetheless noted that Mr. Smith’s consultative examination reflected adequate
persistence and pace. See R. 131–32. Mr. Smith contends that these limitations warranted more
discussion since he “lost a job because he couldn’t work fast enough.” ECF No. 17 at 25. But in
the context of an MRFCA narrative—which elaborates on twenty distinct mental limitations—
Dr. Wanstrath’s succinct observation that Mr. Smith’s persistence overall was “adequate”
sufficed to describe the insignificance of these moderate limitations. Moreover, the conclusion
that Mr. Smith “can . . . sustain ordinary routines” makes clear Dr. Wanstrath’s belief that the
limitations in Mr. Smith’s ability to adhere to a schedule and complete work without interruption
do not compromise his residual functional capacity.
Although Dr. Wanstrath certainly could have elaborated on Mr. Smith’s limitations in
greater detail, this Court does not sit in judgment of the doctor’s editorial decisions. As the
Tenth Circuit wrote about a similar issue: “The more comprehensive the . . . explanation, the
easier our task; but we cannot insist on technical perfection.” Keyes-Zachary, 695 F.3d at 1166.
Instead, the question for this Court is simply whether Dr. Wanstrath’s narrative altogether “fails
to describe” the effects of Mr. Smith’s moderate limitations or “contradicts” those limitations.
Carver, 600 F. App’x at 619. I conclude that the MRFCA clears this low bar.
Additionally, Mr. Smith claims that Dr. Wanstrath’s narrative saying that Mr. Smith
“works best in isolated environment[s]” conflicted with his conclusion that Mr. Smith “can
accept supervision and relate to coworkers and the public if contact is not frequent or
prolonged.” ECF No. 17 at 25 (citing R. 132–33). That is incorrect. Dr. Wanstrath’s first
comment concerns the optimal work environment for Mr. Smith, while his second comment

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concerns the minimum conditions Mr. Smith can tolerate. These statements speak to different
topics and do not conflict.
4. Ms. Gilbert and Dr. Abdullah.
Mr. Smith asserts that the Appeals Council erred in disregarding Ms. Gilbert’s January 5,
2015 letter and Dr. Abdullah’s March 17, 2015 opinion, which were submitted after the ALJ
rendered his decision on September 2, 2014. “[T]he Appeals Council must consider additional
evidence offered on administrative review—after which it becomes a part of our record on
judicial review—if it is (1) new, (2) material, and (3) related to the period on or before the date
of the ALJ’s decision.” Krauser v. Astrue, 638 F.3d 1324, 1328 (10th Cir. 2011). The Appeals
Council rejected these submissions on the grounds that they relate to a time after the ALJ’s
decision. R. 2. The Court sees no error here.
First, Mr. Smith mentions Ms. Gilbert’s letter in his brief without citing to the record or
attaching the letter as an exhibit in this appeal. See ECF No. 17 at 25. The Court has searched
the record but cannot find this document, presumably because the Appeals Council rejected the
submission and declined to add it to the record. As a result, Mr. Smith has failed to raise this
issue in a way that would enable the Court to review his claim. And even if the Court could
review Ms. Gilbert’s letter, it is not clear that this would do Mr. Smith any good. Mr. Smith
claims only that the letter “assign[s] Smith as a ‘person with most significant disabilities.’” Id.
This opinion is irrelevant unless it concerns Mr. Smith’s condition up to September 2, 2014,
which Mr. Smith does not allege. Thus, Mr. Smith has failed to state a plausible claim.
Second, Dr. Abdullah’s “opinion” on March 17, 2015 does appear in the record, but it
consists of just two marked checkboxes on a Colorado Department of Human Services Med-9
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Form. See R. 40–41. The filled-in checkboxes indicate: “I find this individual has been or will
be totally and permanently disabled to the extent they are unable to work full time at any job due
to a physical or mental impairment. This disability is expected to last 12 months or more.” R.
40 (emphasis added). By its own terms, Dr. Abdullah’s opinion does not unambiguously relate
to the period leading up to the ALJ’s decision on September 2, 2014. The Appeals Council was
therefore right to reject this submission.
5. Mr. Shaffner.
Mr. Smith next argues that the ALJ erred in considering Mr. Shaffner’s opinion only as it
relates to the severity of Mr. Smith’s impairments and their effects without giving weight to Mr.
Shaffner’s RFC opinion. ECF No. 17 at 25–26. There is no mistake here either.
Medical sources include licensed physicians, psychologists, and similar practitioners. 20
C.F.R. §§ 404.1513(a), (d)(1), 416.913(a), (d)(1). When assessing a claimant’s RFC, an ALJ
must “consider any statements about what [the claimant] can still do that have been provided by
medical sources.” Id. §§ 404.1545(a)(3), 416.945(a)(3). In other words, an ALJ must “consider
opinions from medical sources on . . . [a claimant’s] residual functional capacity.” Id. §§
404.1527(d)(2), 416.927(d)(2). In contrast, an ALJ is required only to “consider descriptions and
observations of [the claimant’s] limitations from [his] impairment(s) . . . provided by [the
claimant], [the claimant’s] family, neighbors, friends, or other persons.” Id. §§ 404.1545(a)(3),
416.945(a)(3).
Mr. Shaffner is social worker. See R. 427. Social workers are not medical sources. SSR
06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006). Therefore, the ALJ was required only to
consider Mr. Shaffner’s descriptions of Mr. Smith’s limitations. Still, the ALJ did give some
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weight to the findings underlying Mr. Shaffner’s RFC opinion. R. 59. But the ALJ found Mr.
Shaffner’s opinions about the severity and effects of Mr. Smith’s impairments to be largely
inconsistent with the opinions of Dr. Madsen and Dr. Wanstrath, both of whom are acceptable
medical sources who assessed Mr. Smith during the same period as Mr. Shaffner. R. 60. As a
result, the ALJ adequately considered Mr. Shaffner’s opinions and explained his reasons for not
giving them more weight.
6. Disability standard.
Mr. Smith claims that the ALJ’s use of the words “totally debilitated” indicate that he
used the wrong legal standard in determining that Mr. Smith is not disabled. ECF No. 17 at 26.
This view misreads the ALJ’s decision.
The ALJ’s RFC discussion makes clear that he rejects “the claimant’s contention that he
is totally debilitated.” R. 62 (emphasis added). The ALJ thus used this language in
characterizing Mr. Smith’s claims, not in evaluating whether Mr. Smith was disabled under
sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Indeed, the ALJ’s decision
expressly defined Mr. Smith’s RFC as “his ability to do physical and mental work activities on a
sustained basis despite limitations from his impairments.” R. 53. There is no sign that the ALJ
forgot this definition when he later found that Mr. Smith has the RFC to perform a full range of
work at all exertional levels subject to several nonexertional limitations. R. 57. The ALJ’s
nondisability finding was therefore properly based on an RFC determination rather than a finding
that Mr. Smith merely was not “totally debilitated.”

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7. Credibility determinations.
Mr. Smith also criticizes several of the ALJ’s credibility determinations. These
challenges are hard to win. As the Tenth Circuit has explained:
The ALJ enjoys an institutional advantage in making the type of determination at
issue here. Not only does an ALJ see far more social security cases than do
appellate judges, he or she is uniquely able to observe the demeanor and gauge
the physical abilities of the claimant in a direct and unmediated fashion. As a
result, the ALJ’s credibility findings warrant particular deference.
White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). Consequently, this Court “will not upset
such determinations when supported by substantial evidence.” Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995) (internal quotation marks omitted). I decline to upset those findings here.
First, Mr. Smith objects to the ALJ’s giving his mother’s statements only “some weight,”
“which doesn’t explain how much of her depiction of the claimant’s anxiety, agoraphobia and
mood disorder was credible.” ECF No. 17 at 29. There is no mystery here. The ALJ’s RFC
determination accepts some of the restrictions Mr. Smith’s mother noted as nonexertional
limitations but discounts her testimony to the extent that it is inconsistent with and outweighed
by other evidence in the record. See R. 57, 61–62. An ALJ is not required to itemize and spell
out exactly how truthful he finds every single statement in determining the credibility of an
individual’s testimony. Again, “[t]he more comprehensive the ALJ’s explanation, the easier our
task; but we cannot insist on technical perfection.” Keyes-Zachary, 695 F.3d at 1166.
Mr. Smith also argues that the ALJ inappropriately discounted his mother’s testimony
based on his work history through 2011 because his mental capacity deteriorated after their
October 2011 move to Colorado. However, his mother’s testimony did not mention any effect
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this move had on Mr. Smith. See R. 96–100, 309–10. Instead, the testimony focused on his
alleged onset date in 2009. See R. 97–98 (stating that Mr. Smith hit himself after getting in an
argument with his father in the summer of 2009, and that he continues to hit himself when he
gets frustrated or anxious); R. 99 (saying that Mr. Smith has had manic and depressive periods
since 2009); R. 100 (testifying that Mr. Smith was breaking down crying on a daily basis in
2009); R. 309–10 (stating that Mr. Smith’s anxiety has been severe and his ability to concentrate,
complete tasks, and follow simple instructions have been poor since 2009). This testimony was
therefore properly impeached by evidence in the record beginning in 2009.
Moreover, Mr. Smith claims that the ALJ erroneously relied on medical records showing
his condition improving with medication when “Dr. Veselka noted that his nervousness, sweaty
palms and mild chest pain indicated that general anxiety was not ideally controlled.” ECF No.
17 at 29. These two pieces of evidence are not incompatible. Mr. Smith’s condition was
improving, but had not fully improved. That is exactly what the ALJ’s decision says: “[H]is
medical records suggest that he has made good improvement with medication. Some
medications were even reduced in dosage or eliminated completely by Dr. Cohen, following
improvement. The claimant still has some significant difficulty with panic attacks and social
phobia, which the above RFC accommodates.” R. 61 (citations omitted).
Next, Mr. Smith argues that the ALJ improperly “magnified” Ms. Hoskins’ note that Mr.
Smith “is seeking permanent disability vs. hoping for resolution of symptoms which is entirely
possible.” ECF No. 17 at 29 (quoting R. 405, 410). But this Court’s limited review serves to
ensure only that “the ALJ followed the ‘specific rules of law that must be followed in weighing
particular types of evidence in disability cases.’” Hackett v. Barnhart, 395 F.3d 1168, 1172
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(10th Cir. 2005) (quoting Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988)). The Court “will
not reweigh the evidence” to shrink the significance of Ms. Hoskins’ statement in evaluating Mr.
Smith’s claims. See id.
Mr. Smith then attacks the ALJ’s interpretation of Ms. Hoskins’ note as undermining Mr.
Smith’s credibility, arguing her belief that he was not “hoping for resolution of symptoms” does
not mean that he was not seeking such a resolution. ECF No. 17 at 30. Mr. Smith also contends
that his treatment notes do not reveal a resolution of his symptoms “and there is no indication
that he wasn’t averse to one.” Id. These assertions are beside the point. The key language in
Ms. Hoskin’s statement is “resolution of symptoms . . . is entirely possible.” R. 405, 410. As the
ALJ’s decision makes clear, he cited Ms. Hoskins’ opinion as evidence that “[t]he claimant’s
Aspen Pointe treatment provider believes that the claimant is also capable of a resolution of his
social phobia symptoms.” R. 61. The ALJ then explained that he took note of the nurse’s
“perception of the claimant’s possibilities” because “that perception relates to the claimant’s
credibility” in pursuing disability benefits. Id. Ms. Hoskins’ statement stands as evidence that
could be put to this use.
Additionally, Mr. Smith argues that the ALJ “pick[ed] and [chose] among medical
reports” in observing that Mr. Smith “has exaggerated his symptoms in the past.” ECF No. 17 at
30; R. 61 (citing R. 337). There is no error here. The rule against picking and choosing from
medical reports forbids “using portions of evidence favorable to [the ALJ’s] position while
ignoring other evidence.” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). The ALJ
did not, for example, ignore such evidence by falsely stating that Mr. Smith always exaggerated
his symptoms. Instead, the ALJ merely noted that Mr. Smith has exaggerated his symptoms
15

before. That is accurate. The ALJ reasonably considered this fact in assessing Mr. Smith’s
credibility.
Furthermore, Mr. Smith claims that the ALJ should have developed the record to
determine when his marijuana use started rather than fault him for testifying in July 2014 that he
used the drug “a couple times a month” when he denied doing so in June and December 2013,
since it is possible that his drug use started in 2014. ECF No. 17 at 30 (citing R. 9, 82, 355). If
Mr. Smith truly started using marijuana only a few months before his July 2014 hearing, he had
an odd way of saying so. The ALJ asked Mr. Smith directly how often he had “smoked or used
marijuana since 2009,” and Mr. Smith replied: “Not very often, like once—a couple times a
month maybe.” R. 82. It is hard to read this statement to mean that Mr. Smith did not use
marijuana in 2009, 2010, 2011, 2012, or 2013, but suddenly started using the drug a couple times
per month in the first half of 2014. Accordingly, the ALJ was entitled to consider this apparent
inconsistency in evaluating Mr. Smith’s credibility.
In addition to these valid factors, the ALJ’s credibility findings considered many other
pieces of evidence, including: the fact that Mr. Smith successfully completed high school in
2008; the lack of any treatment evidence corresponding with Mr. Smith’s alleged onset date in
2009; the absence of objective evidence showing Mr. Smith’s symptoms worsening after his
alleged onset date; and Mr. Smith’s wage earnings increasing in 2009, doubling in 2010, and
then returning to 2009 levels in 2011, all of which occurred after his alleged onset date. R. 58–

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62. Mr. Smith does not dispute these findings. The ALJ’s credibility determinations were thus
supported by substantial evidence. 1
B. Step Five.
In his final argument, Mr. Smith contends that because of the ALJ’s purported step-four
errors, the ALJ improperly relied on the vocational expert’s response to a hypothetical question
that did not account for all of Mr. Smith’s limitations. ECF No. 17 at 32. But the Court has not
found any step-four errors. Therefore, the ALJ’s step-five analysis was adequate.
ORDER
For the reasons described above, the Court AFFIRMS the Commissioner’s decision
denying claimant Gregory D. Smith’s application for Disability Insurance Benefits and
Supplemental Security Income.
DATED this 1st day of December, 2016.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

1

Inexplicably, Mr. Smith also raises in this section the boilerplate argument that his “daily activities did not reflect
regular work full-time in the competitive marketplace.” ECF No. 17 at 31. No one has claimed that they do. Mr.
Smith’s citation to the record refers to the ALJ’s proper assessment of Mr. Smith’s activities of daily living as part
of the step-three analysis of his impairments’ severity. See R. 55. The step-four RFC assessment does not mention
Mr. Smith’s activities of daily living at all. See R. 57–62.

17