Papesh v. Commissioner, Social Security Administration

Filing 22

MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 10/22/2018. After carefully considering the Parties' briefing, the entire case file, the Administrative Record 11 , and the applicable case law, I respectfully AFFIRM the Commissioner's decision. (bwilk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02622-NYW
ALLISON PAPESH,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C.
§ 401–33, for review of the Commissioner of the Social Security Administration’s
(“Commissioner” or “Defendant”) final decision denying Plaintiff Allison Papesh’s (“Plaintiff”
or “Ms. Papesh”) application for Disability Insurance Benefits (“DIB”). Pursuant to the Parties’
consent [#13], this civil action was referred to this Magistrate Judge for a decision on the merits.
See [#21]; 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; D.C.COLO.LCivR 72.2. After carefully
considering the Parties’ briefing, the entire case file, the Administrative Record, and the
applicable case law, I respectfully AFFIRM the Commissioner’s decision.
BACKGROUND
This case arises from Plaintiff’s application for DIB filed on or about August 10, 2015.
[#11-2 at 11;1 #11-3 at 58, 59]. Ms. Papesh graduated from high school, completed two years

1

When citing to the Administrative Record, the court utilizes the docket number assigned by
the CM/ECF system but the page number associated with the Record, found in the bottom righthand corner of the page. For all other documents, the court cites to the document and page
number generated by the CM/ECF system.

of college, and worked as a restaurant and cocktail server, a bartender, a receptionist, a sales
representative, a cheese supervisor, and a customer service representative. See [#11-2 at 35–
36; #11-9 at 206]. Plaintiff alleges she became disabled on January 1, 2014, later amended to
March 15, 2015, see [#11-2 at 33; #11-9 at 201], due to Interstitial Cystitis (“IC”)2 and major
anxiety disorder, see [#11-9 at 205]. Ms. Papesh was twenty-nine years old at the date of onset
of her claimed disability.
The Social Security Administration denied Plaintiff’s application administratively on or
about January 5, 2016. See [#11-3 at 58; #11-4 at 73–75]. Ms. Papesh filed a request for a
hearing before an Administrative Law Judge (“ALJ”), see [#11-4 at 79], as well as a request for
a determination on the record, see [#11-5; #11-6]. ALJ Jennifer B. Millington (the “ALJ”)
convened a hearing on June 5, 2017, at which attorney William Allison represented Plaintiff,
and the ALJ received testimony from the Plaintiff and Vocational Expert Martin Rauer (the
“VE”). See [#11-2 at 11].
At the hearing, Plaintiff testified that her IC kept her from working at present. [#11-2
at 36, 42–44]. She attested that she was diagnosed with the disease at four years old, but without
much knowledge of the disease or health insurance for much of her twenties, her IC has
“spawned into a lot of different ailments and turned into debilitating pain.” [Id. at 36–37, 44].
Ms. Papesh explained that she received treatments 3 days per week for her IC, and that her last
employer could not accommodate that amount of time off each week. [Id. at 37]. She continued
that she began administering the treatment (bladder catheterizations) at home, and had done so

IC is a “chronic inflammatory condition of unknown etiology involving the epithelium and
muscularis of the bladder, resulting in reduced bladder capacity, pain relieved by voiding, and
severe bladder irritative symptoms.” It is also known as Hunner ulcer. See 225430 interstitial
cystitis, Stedmans Medical Dictionary 225430.
2

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for roughly a year. [Id. at 37–38]. But she testified that even home administration could take
approximately 3 hours, given its difficulty and that she must lie down afterwards for 45 minutes.
[Id. at 38].
Regarding her additional physical ailments, Ms. Papesh testified to “full body pain
everywhere” due to her fibromyalgia, and that her IC causes her to experience frequent
urination—up to 3 to 4 times per hour and as many as 16 times throughout the night. [Id. at
38–39]. This in turn causes sleep disturbance, requiring Ms. Papesh to lie down nearly every
day to catch up on sleep. [Id. at 39, 44–45]. Ms. Papesh continued that her chronic fatigue
makes routine hygienic tasks more difficult and longer to complete; that she can drive only short
distances; that her medication causes side effects of chronic nauseous and frequent vomiting
and diarrhea; and that walking, going to the grocery store, sitting, and standing exacerbate her
diffuse body pain. [Id. at 40, 45–47]. As to her mental impairments, Plaintiff testified to having
problems with depression because she can no longer work and has difficulty maintaining a
social life, this in addition to issues with anxiety because she fears that she may visit a place
with no restrooms. [Id. at 41].
The VE also testified at the hearing. The VE first summarized Ms. Papesh’s relevant
past work experience to include: a hostess, specific vocational preparation (“SVP”) level 3, light
exertion; a waitress, SVP level 3, light exertion; a front desk clerk, SVP level 4, light exertion;
receptionist, SVP level 4, sedentary exertion but light as described by Plaintiff; a bartender,
SVP level 3, light exertion; a check room attendant, SVP level 2, light exertion; a cashier II,
SVP level 2, light exertion but medium as described by Plaintiff; and a cocktail waitress, SVP
level 3, light exertion. See [#11-2 at 53–54].

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The VE then considered the work an individual could perform with varying degrees of
restrictions. First, the VE testified that an individual who could perform medium exertion work,
could only frequently climb, balance, stoop, kneel, crouch, and crawl, and could not be exposed
to heights or heavy machinery could perform all of Ms. Papesh’s past relevant work. [Id. at
54–55]. Second, if this same individual was limited to light exertion work, the VE testified that
such an individual could perform work as a small product assembler, a cafeteria attendant, and
as a toll collector—each a SVP level 2. [Id. at 55]. Third, if this same individual “needed, in
addition to regular breaks, two additional breaks per hour of three to four minutes,” the VE
testified, “you’re fairly close to a window of opportunity with most employment situations in
the unskilled arena. Three minutes is right at the window. Four minutes twice per hour would
be excessive and would not be consistent with competitive employment at the unskilled level,
in my opinion.” [Id. at 56]. Finally, when asked by Ms. Papesh’s attorney if that same
individual also had to miss “more than two days per month on average,” the VE testified that
such an individual would not be employable. [Id.].
On June 30, 2017, the ALJ issued a decision finding Ms. Papesh not disabled under the
Act. [#11-2 at 21]. Plaintiff requested Appeals Council review of the ALJ’s decision, which
the Appeals Council denied, rendering the ALJ’s decision the final decision of the
Commissioner. [Id. at 1–3]. Plaintiff sought judicial review of the Commissioner’s final
decision in the United States District Court for the District of Colorado on November 1, 2017,
invoking this court’s jurisdiction to review the Commissioner’s final decision under 42 U.S.C.
§ 1383(c)(3).

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STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); cf. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of substantial
evidence.” (internal citation omitted)). The court may not reverse an ALJ simply because she
may have reached a different result based on the record; the question instead is whether there is
substantial evidence justifying the ALJ’s decision. See Ellison v. Sullivan, 929 F.2d 534, 536
(10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). But “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The
court may not “reweigh the evidence or retry the case,” but 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, 515 F.3d at 1070 (internal
citation omitted).
ANALYSIS
I.

The ALJ’s Decision
An individual is eligible for DIB benefits under the Act if she is insured, has not attained

retirement age, has filed an application for DIB, and is under a disability as defined in the Act.
42 U.S.C. § 423(a)(1). An individual is determined to be under a disability only if his “physical
or mental impairment or impairments are of such severity that he is not only unable to do his
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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. . . .” 42 U.S.C. §
423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least 12
consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214–15 (2002). Additionally, the
claimant must prove she was disabled prior to her date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining
whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams
v. Bowen, 844 F.2d 748, 750–52 (10th Cir. 1988) (describing the five steps in detail). “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.” Williams, 844 F.2d at 750. Step one determines
whether the claimant is engaged in substantial gainful activity; if so, disability benefits are
denied. Id. Step two considers “whether the claimant has a medically severe impairment or
combination of impairments,” as governed by the Secretary’s severity regulations. Id.; see also
20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have
more than a minimal effect on his ability to do basic work activities, he is not eligible for
disability benefits. If, however, the claimant presents medical evidence and makes the de
minimis showing of medical severity, the decisionmaker proceeds to step three. Williams, 844
F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number
of listed impairments that the Secretary acknowledges are so severe as to preclude substantial
gainful activity,” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation
process the ALJ must determine a claimant’s Residual Functional Capacity (“RFC”), which
defines the maximum amount of work the claimant is still “functionally capable of doing on a
regular and continuing basis, despite his impairments: the claimant’s maximum sustained work

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capability.” Williams, 844 F.2d at 751; see also id. at 751–52 (explaining the decisionmaker
must consider both the claimant’s exertional and nonexertional limitations). The ALJ compares
the RFC to the claimant’s past relevant work to determine whether the claimant can resume
such work. See Barnes v. Colvin, 614 F. App’x 940, 943 (10th Cir. 2015) (citation omitted).
“The claimant bears the burden of proof through step four of the analysis.” Neilson v. Sullivan,
992 F.2d 1118, 1120 (10th Cir. 1993).
At step five the burden shifts to the Commissioner to show that a claimant can perform
work that exists in the national economy, taking into account the claimant’s RFC, age,
education, and work experience. Neilson, 992 F.2d at 1120. The Commissioner can meet her
burden by the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098–99, 1101
(9th Cir. 1999).
The ALJ found that Ms. Papesh met the insured status requirements for DIB through
December 31, 2020, and had not engaged in substantial gainful activity since March 23, 2015.
[#11-2 at 13]. At step two the ALJ determined that Ms. Papesh’s IC was a severe impairment.
[Id. at 13–15]. At step three the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526). [Id. at 16]. The ALJ then determined that Plaintiff had
the RFC to perform light exertion work subject to several limitations, including “two extra
breaks per hour for 3 minutes at a time” [id.], and concluded at step four that Ms. Papesh could
not perform any of her past relevant work “due to her need for extra breaks,” [id. at 19]. At step
five, considering Plaintiff’s age, education, work experience, and RFC, the ALJ found that there

7

are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
[Id.].
Ms. Papesh now appeals the ALJ’s decision to this court. While identifying only two
issues in her opening brief—that the ALJ’s findings are internally inconsistent and contrary to
the evidence and the ALJ’s findings that fibromyalgia and depression are not medically
determinable impairments is not supported by substantial evidence, see [#15 at 4]—her opening
and reply brief suggest a myriad of different objections, many of which seem to confuse the law
governing the ALJ’s decision and are not clearly or fully articulated.

Indeed, the

Commissioner’s response brief identifies five issues raised by Plaintiff’s opening brief. See
[#17 at 7]. As far as the court can discern, Plaintiff challenges the ALJ’s findings at: (1) step
two because the ALJ erred in finding that Plaintiff’s fibromyalgia and depression were not
medically determinable and/or non-severe impairments; (2) step three because the ALJ erred in
concluding that Plaintiff’s IC did not meet the Listing associated with this ailment; (3) the RFC
determination because the ALJ did not account for limitations caused by Plaintiff’s
fibromyalgia and improperly assessed Plaintiff’s subjective complaints of disabling pain; and
(4) step five because the ALJ did not explain how Plaintiff’s restroom breaks precluded her
from performing her past relevant work but did not preclude her from performing jobs as a small
product assembler, cafeteria attendant, or toll collector. See [#15; #17]. To the extent Plaintiff
intended to raise challenges not identified above, she has not sufficiently developed such issues
for review by this court and has waived them. See McPherson v. Kelsey, 125 F.3d 989, 995–
96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”);

8

United States v. Davis, 622 F. App’x 758, 759 (10th Cir. 2015) (explaining that it is not the
court’s role to craft arguments for litigants, especially when represented by able counsel).
With this understanding in mind, I consider Plaintiff’s challenges to the ALJ’s decision
in turn. And while Plaintiff does not raise these issues in the order identified by the court, the
following discussion addresses each issue in order of the five-step sequential process for clarity
purposes.
II.

Step Two
At step two the Commissioner determines whether a claimant has any severe physical

or mental impairments. See Williams, 844 F.2d at 750. “To find a ‘severe’ impairment at step
two requires only a threshold showing that the claimant’s impairment has ‘more than a minimal
effect on [her] ability to do basic work activities.’” Covington v. Colvin, 678 F. App’x 660, 664
(10th Cir. 2017) (quoting Williams, 844 F.2d at 751). But “the claimant must show more than
the mere presence of a condition or ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir.
1997).

Indeed, an ALJ may conclude that an ailment is not a medically determinable

impairment—a particularly important finding, as the ALJ must consider only medically
determinable impairments (severe or not) at subsequent steps. See Cook v. Colvin, No. CV 151164-JWL, 2016 WL 1312520, at *4 (D. Kan. Apr. 4, 2016) (“Limitations attributed to
impairments which are medically determinable but are not severe must be considered at later
steps in the evaluation, whereas alleged limitations attributable to impairments which are not
medically determinable must not be considered at later steps.”).
Ms. Papesh appears to take issue with the ALJ’s conclusion that her fibromyalgia and
depression were not medically determinable impairments. [#11 at 11-15]. But this is not an
accurate characterization of the ALJ’s findings at step two. Rather, the ALJ concluded that

9

Plaintiff’s fibromyalgia and depression were non-severe medically determinable impairments.3
See [#11-2 at 13–14]. And while Plaintiff may be correct that both have more than a minimal
effect on her ability to perform work activities, I agree with the Commissioner that any error by
the ALJ in finding otherwise was harmless.
In Allman v. Colvin, the United States Court of Appeals for the Tenth Circuit (“Tenth
Circuit”) explained that at step two “a claimant need only establish, and an ALJ need only find,
one severe impairment[,]” as a finding of one severe impairment requires the ALJ to proceed to
the next step considering all of the claimant’s ailments (severe or not) anew. 813 F.3d 1326,
1330 (10th Cir. 2016). “Thus, the failure to find a particular impairment severe at step two is
not reversible error when the ALJ finds at least one other impairment is severe.” Id.; see also
Smith v. Colvin, 821 F.3d 1264, 1266–67 (10th Cir. 2016) (holding as harmless error the ALJ’s
failure to find a severe left shoulder impairment at step two when the ALJ considered shoulder
impairments in assessing the plaintiff’s RFC); Howard v. Berryhill, No. 17-CV-00276-RBJ,
2017 WL 5507961, at *4 (D. Colo. Nov. 17, 2017) (“While it certainly would have been prudent
for the ALJ to consider Ms. Howard’s chronic pain syndrome diagnosis at step two . . . the
ALJ’s failure to do so is not reversible error under Allman because she determined that two of
Ms. Howard’s other impairments were severe.”). Here the ALJ found at least one severe
impairment, Plaintiff’s IC, and “proceeded with the analysis as required.” Troe v. Berryhill,
No. 16-CV-02794-MEH, 2017 WL 2333101, at *7 (D. Colo. May 30, 2017) (relying on Allman,
813 F.3d at 1330). Thus, the ALJ did not err at step two by failing to find as severe impairments
Plaintiff’s fibromyalgia and depression.

The ALJ properly considered Plaintiff’s fibromyalgia under Social Security Ruling 12-2p,
2012 WL 3104869, at *2–3 (July 25, 2012) in reaching this conclusion. See [#11-2 at 13–14].
3

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III.

Step Three
Step three of the evaluation process requires the ALJ to consider whether a claimant has

an impairment that meets or medically equals any listing found at Title 20, Chapter III, Part
404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). The severity of
the impairments found in these listings precludes any substantial gainful activity. See Bowen
v. Yuckert, 482 U.S. 137, 141 (1987); see also Williams, 844 F.2d at 751. Each listing specifies
“the objective medical and other findings needed to satisfy the criteria of that listing[,]” and a
claimant meets a listed impairment if her ailments satisfy all of the listing’s criteria, 20 C.F.R.
§ 404.1525 (c)(3), or medically equal a listing, id. at § 404.1526(a) (medical equivalence means
“at least equal in severity and duration to the criteria of any listed impairment”). The claimant’s
meeting or medically equaling a listing requires a conclusion of disabled and entitles the
claimant to benefits. See Davidson v. Sec’y of Health & Human Servs., 912 F.2d 1246, 1252
(10th Cir. 1990).
Here Ms. Papesh contends that she meets the requirements of SSR 15-1p, which
“provides guidance on how [the Social Security Administration] develop[s] evidence to
establish that a person has a medically determinable impairment of [IC],” SSR 15-1p, 2017 WL
1292257, at *1 (Mar. 18, 2015) (emphasis added), “and therefore should be found to be
disabled.” [#15 at 13]. But as the italicized language notes, SSR 15-1p provides guidance only
on whether IC is a medically determinable impairment. It does not set forth criteria utilized at
step three to determine whether a claimant meets or medically equals a Listing. E.g., SSR 151p, 2017 WL 1292257, at *3 (Mar. 18, 2015) (“IC constitutes an MDI when producing
appropriate symptoms and medical signs or laboratory findings” (emphasis added)). Indeed,
the Listings do not provide for IC, but the ALJ concluded that Plaintiff’s IC did not meet or

11

medically equal the criteria for Listing 6.01, Genitourinary disorders that result in chronic
kidney disease. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 6.00. But Ms. Papesh does
not explicitly challenge this conclusion on appeal (indeed, there is no mention of it in her
briefing at all), and the court will not reconsider the ALJ’s conclusion in this regard without
such a challenge.
This same conclusion applies equally to any intimation that SSR 12-2p provides criteria
for a finding of disability due to meeting or medially equaling a Listing of fibromyalgia. Thus,
I find no error at step three.
IV.

The RFC
In assessing a claimant’s RFC, the ALJ must consider the combined effect of all

medically determinable impairments, including the severe and non-severe. See Wells v. Colvin,
727 F.3d 1061, 1065 (10th Cir. 2013); 20 C.F.R. § 404.1529(a); SSR 96-9p. A claimant’s RFC
is the most work the claimant can perform, not the least. 20 C.F.R. § 404.1545; SSR 83-10.
The ALJ’s RFC assessment must be consistent with the whole record and supported by
substantial evidence. See generally Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004);
SSR 96-8p. If it is, the court will not reverse the ALJ’s decision even if it could have reached
a different conclusion. Ellison, 929 F.2d at 536; see also Flaherty, 515 F.3d at 1070 (explaining
that the reviewing court may not “reweigh or retry the case.”).
Plaintiff contends that the ALJ’s RFC determination is internally inconsistent with the
medical record because the ALJ improperly evaluated Plaintiff’s subjective complaints of pain4

Though SSR 16-3p superseded SSR 96-7p and eliminated the term “credibility”, SSR 16-3p
offers the same guidelines for ALJs to use in assessing a claimant’s subjective complaints of
symptoms and pain. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). For this reason, the
court will refer to this challenge as one speaking to Ms. Papesh’s credibility. See Watts v.
Berryhill, 705 F. App’x 759, 763 n.4 (10th Cir. 2017).
4

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and did not consider the limitations associated with Plaintiff’s fibromyalgia. I consider each
objection in turn.
A.

Credibility

“‘Credibility determinations are peculiarly the province of the finder of fact’ and the
[court] will uphold such determinations, so long as they are supported by substantial evidence.”
Ruh v. Colvin, No. 13-CV-01255-PAB, 2015 WL 1517392, at *2 (D. Colo. Mar. 30, 2015)
(quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)). “Credibility determinations
should not be conclusory, but instead ‘closely and affirmatively linked’ to evidence in the
record.” Oliva v. Colvin, No. 13-CV-02495-PAB, 2015 WL 5719645, at *7 (D. Colo. Sept. 30,
2015) (quoting Kepler, 68 F.3d at 391)). In addition to considering the objective medical
evidence, the ALJ must also consider several factors, including the claimant’s daily activities;
the location, duration, frequency, and intensity of her pain; aggravating and mitigating factors;
any medication taken and its effectiveness in providing relief; other treatment received aside
from medications; other measures utilized to alleviate pain, i.e., lying down; and any other
factors that may bear on the claimant’s functional limitations. See 16-3p, 2016 WL 1119029,
at *7 (Mar. 16, 2016); Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010).
The ALJ’s RFC determination starts with a conclusion that while Ms. Papesh’s
“medically determinable impairments could reasonably be expected to produce the . . . alleged
symptoms,” her allegations concerning the severity and limiting effects were “not entirely
consistent with the medical evidence and other evidence in the record[.]” [#11-2 at 16]. Ms.
Papesh takes issue with 5 findings the ALJ relied on in reaching this conclusion. See [#15 at
7]. I consider each below, and I respectfully agree with the Commissioner that the ALJ properly

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evaluated Ms. Papesh’s credibility based on the medical evidence and that the ALJ
appropriately resolved any inconsistencies within the record.
First, Ms. Papesh challenges the ALJ’s finding that “[t]here are few complaints of severe
pain, catheter use, medication side effects, and an inability to get out of bed. Medical exams
revealed no significant abnormalities.” [#11-2 at 17]. Ms. Papesh argues that there “were at
least 19 complaints of pain documented in the medical evidence of record between September
12, 2014 and January 11, 2017[,]” and that at least two medically determinable “are known to
cause the type, frequency and degree of pain reported by Ms. Papesh.” [#15 at 8 (citing [#116 at 129])]. Ms. Papesh is correct that the record contains several instances where she reported
pain. See, e.g., [#11-12 at 346, 361, 368, 370, 374, 377, 378, 379, 381; #11-13 at 437, 441, 474;
#11-15 at 511, 512, 535; #11-16 at 580, 582, 583; #11-17 at 646, 654]. But the ALJ found that
Ms. Papesh’s medical exams “revealed no significant abnormalities” [#11-2 at 17], and then
went on to explain the inconsistencies with Ms. Papesh’s allegations of disabling pain and the
objective medical record, see [id. at 17–18]. This court’s review of the record supports the
ALJ’s conclusion in this regard, because objective medical findings were largely normal and
Ms. Papesh reported improvement of her symptoms following several procedures. See, e.g.,
[#11-11 at 320–22, 327–29, 331–33, 335–36; #11-12 at 337, 346–49, 366–67, 368, 370–72,
375, 377, 380, 382, 421, 423; #11-13 at 445, 465–66, 470; #11-14 at 506, 508; #11-15 at 513–
14, 516, 524, 560; #11-16 at 584, 588, 593, 621, 626; #11-17 at 647–48, 657–58; #11-19].
While an ALJ may not pick and choose evidence that supports a finding of nondisability, she
“is entitled to resolve any conflicts in the record[.]” Haga v. Astrue, 482 F.3d 1205, 1208 (10th
Cir. 2007). That is what the ALJ did here. Thus, the ALJ affirmatively linked her determination

14

to substantial evidence and the court will not upset that determination. See Hackett v. Barnhart,
395 F.3d 1168, 1173 (10th Cir. 2005).
Second and third, Ms. Papesh argues that it was error for the ALJ to discredit Plaintiff’s
subjective complaints of pain because “[Plaintiff] worked from May 2010 to March 2015 as a
receptionist at a medical marijuana dispensary and from November 2013 to May 2015 as a
restaurant server, both without any accommodations” and “earned [substantial gainful activity]
wages in the first quarter of 2015.” [#15 at 8]. Ms. Papesh argues that because her date of
alleged onset was March 23, 2015, “the only thing that finding says is that [Plaintiff] worked
and had earnings until she became disabled.” [Id.]. But these were only two of several reasons
the ALJ found Ms. Papesh’s allegations not entirely credible, and the ALJ continued with a
detailed account of the inconsistencies with the objective medical record. [#11-2 at 17–19]. I
find no error with the ALJ’s reasoning, as she “set forth the specific evidence [she] relie[d] on
in evaluating the claimant’s credibility,” including the repeated medical assessments that
Plaintiff’s physical and mental exams were “unremarkable” [id. at 18] as well as Plaintiff’s
inconsistent reports of anxiety based on the lack of intimacy in contrast to reports of a long-term
boyfriend and early pregnancy [id. at 18–19]. Indeed, the ALJ was not required to make a
“formalistic factor-by-factor recitation of the evidence.” Keyes-Zachary v. Astrue, 695 F.3d
1156, 1167 (10th Cir. 2012) (internal quotation marks omitted) (noting that “common sense,
not technical perfection, is our guide.”).
Fourth, Ms. Papesh challenges the ALJ’s finding that “[Plaintiff] underwent an
in-patient catheter procedure in January 2016, and reported she tried the catheter procedure once
at home and found it too difficult, which is inconsistent with her testimony of consistent catheter
use and frequent in-home catheter procedures.” [#11-2 at 18]. Ms. Papesh contends that while

15

she did inform her doctor that home-catheterization was too difficult, the ALJ “ignored other
evidence that Ms. Papesh later in 2016 . . . was given take-home instructions” for
home-catheterization and bladder installations. See [#15 at 8–9]. But the evidence Ms. Papesh
cites for this proposition does not suggest that she received these “take-home instructions” in
late 2016; rather, it appears that her doctor printed these instructions on or about August 20,
2015, see [#11-6 at 125; #11-18 at 702]. This being before she told her doctor on January 21,
2016 that she tried bladder installation at home once, but “fe[lt] this is too difficult to manage.”
[#11-13 at 437]. Plaintiff points to no additional medical evidence that corroborates her
testimony regarding at-home bladder installations on a constant basis. If Ms. Papesh believed
this to be a crucial issue for the ALJ’s consideration, then it was her responsibility to develop
this issue more fully. See Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (“[I]n
cases such as this one where the claimant was represented by counsel at the hearing before the
ALJ, the ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure and
present claimant’s case in a way that the claimant’s claims are adequately explored, and the
ALJ may ordinarily require counsel to identify the issue or issues requiring further
development.” (internal quotations omitted)). Accordingly, I find no error with the ALJ’s
conclusion here.
Fifth, Ms. Papesh argues that the ALJ erred in relying on the fact that “[Plaintiff]
received unemployment benefits in the 2nd and 3rd quarters of 2015, which indicates she was
ready, willing, and able to work.” [#11-2 at 17]. Though acknowledging that the ALJ was
“completely within . . . her rights to consider the receipt of unemployment insurance as a factor
militating against a finding of disability[,]” Plaintiff contends that this factor alone cannot
support an adverse credibility determination. [#15 at 9; #18 at 3–4]. Further, because the ALJ

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did not inquire about Plaintiff’s receipt of unemployment benefits at the hearing, the ALJ had a
duty to develop the record on this point before relying on it in her RFC determination. [#15 at
9; #18 at 3–4]. But as previously discussed, the ALJ’s consideration of Ms. Papesh’s receipt of
unemployment benefits was one of several factors the ALJ considered in assessing Plaintiff’s
credibility; it was not the sole factor. See Lately v. Colvin, 560 F. App’x 751, 735 (10th Cir.
2014) (finding no error where the ALJ discredited the plaintiff’s subjective complaints of pain
because the ALJ “cited and discussed testimony and her activities of daily living, child-care
responsibilities, diagnostic exams, treatment-seeking behavior, medications, her failure to fully
participate in physical and occupational therapy, her consistent work history, and her collection
of unemployment benefits, which required her to attest that she was ready, willing, and able to
work.” (emphasis added)). Nor does the court agree that the ALJ had a duty to develop the
record further on this point—the record contained evidence of Ms. Papesh’s receipt of
unemployment benefits and it is unclear what else the ALJ needed to develop. Cf. Maes v.
Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008) (“Although the ALJ has the duty to develop the
record, such a duty does not permit a claimant, through counsel, to rest on the record—indeed,
to exhort the ALJ that the case is ready for decision—and later fault the ALJ for not performing
a more exhaustive investigation.”).
B.

Plaintiff’s Fibromyalgia

Ms. Papesh also appears to challenge the ALJ’s RFC determination because the ALJ
failed to consider how Plaintiff’s fibromyalgia in combination with her other ailments “limits
her daily activity.” [#15 at 15]. As explained, the ALJ must consider all medically determinable
impairments, whether severe or not, when assessing a claimant’s RFC. See Ray v. Colvin, 657
F. App’x 733, 734 (10th Cir. 2016). “‘The RFC assessment must include a narrative discussion

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describing how the evidence supports each conclusion, citing specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities, observations).’” Hendron
v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014) (quoting SSR 96-8p, 1996 WL 374184, at *7).
“The RFC assessment must include a discussion of why reported symptom-related functional
limitations and restrictions can or cannot reasonably be accepted as consistent with the medical
and other evidence.” SSR 96-8p, 1996 WL 374184, at *7.
The ALJ considered Plaintiff’s fibromyalgia at step two and concluded that
fibromyalgia was not a severe medically determinable impairment. See [#11-2 at 13–14].
While the ALJ did not again mention fibromyalgia by name when considering Ms. Papesh’s
RFC, the ALJ did consider Ms. Papesh’s complaints of diffuse body pain. See [id. at 16–19].
Further, I find harmless any error in not explicitly mentioning Ms. Papesh’s fibromyalgia in the
RFC determination. Cf. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (approving
harmless-error analysis when “based on material the ALJ did at least consider (just not
properly), we could confidently say that no reasonable administrative factfinder, following the
correct analysis, could have resolved the factual matter in any other way.”). And it does not
appear that the ALJ impermissibly relied on her step two finding in lieu of an independent RFC
determination regarding Plaintiff’s fibromyalgia. See Berg v. Berryhill, No. 16-cv-02718NYW, 2018 WL 276280, at *8 (D. Colo. Jan. 3, 2018) (“[I]t appears that the ALJ merely relied
on her findings at Step two and, thus, did not consider Plaintiff’s migraines at subsequent steps.
This constitutes reversible error.”).
The record before the court contains sparse mention of Ms. Papesh’s fibromyalgia. For
instance, February 3, 2016 medical records noted a diagnosis of fibromyalgia, among other
ailments, and an examination revealed 9 positive tender points out of 18. See [#11-13 at 441,

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444, 446]. Medical records from April 1, 2016 and May 2, 2016 then list fibromyalgia as one
of several diagnoses but do not expound on fibromyalgia further, and the reason for each visit
concerned Ms. Papesh’s IC and bladder issues. See [id. at 460, 468]. The only other mentions
of fibromyalgia similarly listed fibromyalgia as one of several diagnoses, e.g., [#11-5 at 555,
561, 559], but concerned Ms. Papesh’s expressed frustrations with the lack of treatment
provided for her fibromyalgia, e.g., [id. at 559 (stating that her primary care physician “has
never done anything for her fibromyalgia.”), 561 (noting Plaintiff failed to follow up with
prescribed physical therapy for her fibromyalgia)]. In addition, Plaintiff’s argument that IC is
often associated with fibromyalgia, without more, does not establish its severity or impact on
an individual’s functioning. [#15 at 11]. And as discussed, though Ms. Papesh testified to
severe limitations caused by her fibromyalgia, the court finds no error in the ALJ’s assessment
of Ms. Papesh’s subjective complaints regarding the intensity and limiting effects of her diffuse
pain body. Accordingly, the ALJ did not err in assessing the limitations caused by Plaintiff’s
fibromyalgia when determining Ms. Papesh’s RFC.
C.

Plaintiff’s Psychological Functioning

Ms. Papesh further suggests that the ALJ failed to properly account for her
psychological functioning. [#15 at 15–16]. To the extent that Ms. Papesh contends that the
ALJ failed to properly account for her psychological limitations in her RFC (apart from her
contention that the ALJ erred when she did not conclude that her depression and anxiety
constituted a medically determinable impairment), Ms. Papesh has failed to develop that
argument or suggest any specific limitations that were not reflected in the RFC. [Id.]. In
addition, the ALJ explained that the evidence upon which Ms. Papesh relies to establish her
psychological duress, i.e., her worry that she will never be in a relationship, cannot have

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children, and was overwhelmed by the pain, was mitigated by objective medical evidence to the
contrary.
V.

Step Five
At step five of the sequential analysis “the burden of proof shifts to the Commissioner .

. . to show that the claimant retains sufficient RFC to perform work in the national economy,
given her age, education, and work experience.” Hackett, 395 F.3d at 1171; 20 C.F.R.
§ 404.1520(a)(4)(v). This also requires the ALJ to consider any exertional and nonexertional
limitations that may impede the claimant’s ability to perform the identified work as well as any
impacts those limits have on the number of jobs available in the national economy that the
claimant is functionally capable of performing. SSR 83-14, 1983 WL 31254 (Jan. 1, 1983).
The ALJ concluded Ms. Papesh could perform the unskilled light exertion jobs of small
products assembler, cafeteria attendant, and toll collector. See [#11-2 at 20].
Ms. Papesh takes issue with the ALJ’s finding that Ms. Papesh would only need two
additional breaks per hour for 3 minutes at a time when the VE testified that 3 minutes is “right
at the window” for unskilled work, but that “[f]our minutes twice per hour would be excessive
and would not be consistent with competitive employment at the unskilled level[.]” [#11-2 at
56]. Plaintiff asserts that the VE’s testimony was ambiguous and that the ALJ needed to explain
why she concluded that Plaintiff would need only 3-minute breaks as opposed to 4-minute
breaks. [#15 at 5]. Ms. Papesh analogizes this to the situation in Kelly v. Berryhill, No. 171002-EFM, 2017 WL 6557422, at *3–4 (D. Kan. Dec. 22, 2017). But in Kelly the court
remanded to the ALJ because the ALJ did not explain why she did not adopt a medical source’s
limitation of extra breaks due to IC despite affording great weight to that medical source’s
opinion. Id. The court in Kelly further explained that it was unclear whether the ALJ’s

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conclusion that the plaintiff needed reasonable access to a restroom incorporated the medical
source’s extra breaks limitation. Id. Here the ALJ did not disregard any medical opinion that
Plaintiff’s additional breaks needed to be 4-minutes as opposed to 3-minutes. Nor is there any
evidence in the record to suggest this. Cf. Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995)
(noting that an ALJ must “include all (and only) those impairments borne out by the evidentiary
record” when posing hypotheticals to VEs).
In addition, Plaintiff’s counsel did not explore this hypothetical further at the hearing;
instead asking whether an individual would be employable if missing more than 2 days per
month on average. See [#11-2 at 56–57]. As mentioned, the ALJ may generally “rely on the
claimant’s counsel to structure and present claimant’s case in a way that the claimant’s claims
are adequately explored.” Branum, 385 F.3d at 1271. Further, ALJs are not required to
“exhaust every possible line of inquiry in an attempt to pursue every potential line of
questioning. The standard is one of reasonable good judgment.” Hawkins v. Chater, 113 F.3d
1162, 1168 (10th Cir. 1997).
Next, Ms. Papesh argues that the ALJ erred by failing to explain why these two
additional 3-minute breaks precluded Ms. Papesh from performing her past relevant work but
not the unskilled jobs identified by the VE and by failing to account for the erosion of the job
market for these jobs based on the two additional breaks. See [#15 at 6; #18 at 4]. When an
ALJ relies on “expert vocational evidence as substantial evidence to support a determination of
nondisability, the ALJ must ask the expert how his or her testimony as to the exertional
requirement of identified jobs corresponds with the [DOT].” Haddock v. Apfel, 196 F.3d 1084,
1087 (10th Cir. 2005); SSR 00-4p. It is the ALJ’s responsibility to “elicit a reasonable
explanation for any discrepancy on this point.” Hackett, 395 F.3d at 1175. In responding to

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the ALJ’s hypotheticals, the VE testified that he would apprise the ALJ of any inconsistencies
between his testimony and the Dictionary of Occupational Titles—the VE did not testify to any
inconsistencies or any erosion in the job market due to these additional breaks. See [#11-2 at
53–57]. And as discussed, the court has rejected Plaintiff’s challenges to the ALJ’s RFC
determination and, thus, the VE’s answer that an individual could perform the three unskilled
jobs identified even when taking two additional 3-minute breaks “provided a proper basis for
the ALJ’s disability decision.” Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000). This is
so even though the ALJ found these additional breaks to preclude Plaintiff’s past relevant work.
Accordingly, I find no error at step five.
CONCLUSION
For the reasons stated herein, the court hereby AFFIRMS the Commissioner’s final
decision.

DATED: October 22, 2018

BY THE COURT:

_________________________
Nina Y. Wang
United States Magistrate Judge

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