Smith v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER. The Commissioner's final decision is affirmed. Signed by District Judge Toby Crouse on 5/8/2024. (kas)

In the United States District Court
for the District of Kansas
_____________
Case No. 23-cv-02087-TC
_____________
CHANCE M. S.1
Plaintiff

v.
MARTIN O’MALLEY,
COMMISSIONER OF SOCIAL SECURITY,
Defendant

_____________
MEMORANDUM AND ORDER
Plaintiff Chance M. S. claims that he cannot work due to several
impairments resulting from a traumatic work injury. Plaintiff now
seeks review of a decision of the Commissioner of Social Security
denying Disability Insurance Benefits and Supplemental Security Income benefits pursuant to Title II and Title XVI, respectively, of the
Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A).
For the following reasons, the Commissioner’s final decision is affirmed.
I
A
1. Federal district courts have jurisdiction, upon timely request, to
review the Commissioner’s final administrative decisions. 42 U.S.C. §
405(g). These cases require a careful review of the record to determine
whether “substantial evidence supports the factual findings and
Plaintiff is referred to only by first name and initials to protect his privacy.
See, e.g., Joseph M. v. Kijakazi, No. 22-1065, 2023 WL 2241526, at *5 (D. Kan.
Feb. 27, 2023).
1

1

whether the [administrative law judge] applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (citing Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). Evidence in support
of a finding is substantial if “a reasonable mind might accept [it] as
adequate to support a conclusion,” and therefore must be “more than
a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ALJ’s
findings must be grounded in substantial evidence and demonstrate
that the ALJ “consider[ed] all relevant medical evidence in making
those findings.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir.
2005). Consequently, a court will “not re-weigh the evidence or try the
issues de novo,” but will “meticulously examine the record as a whole
. . . to determine if the substantiality test has been met.” Id.
2. To evaluate an application for disability benefits, the Commissioner uses a five-step sequential analysis. 20 C.F.R. §§ 404.1520(a)(4)
(disability insurance), 416.920(a)(4) (supplemental security income);
Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). “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.” Wilson, 602 F.3d
at 1139 (quoting Lax, 489 F.3d at 1084). The claimant bears the burden
of proof for the first four steps, but the Commissioner does for the
fifth. Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). In the
first three steps, the Commissioner determines whether the claimant
has engaged in substantial gainful activity since the alleged onset of the
disability, whether the claimant has any severe impairments, and
whether any of those impairments meets or equals the severity of any
impairment in the Listing of Impairments found in 20 C.F.R., Pt. 404,
Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(a)(4)(i)–(iii), 416.920(a)(4)(i)–
(iii); Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988).
The fourth and fifth steps of the analysis depend on the claimant’s
residual functional capacity (RFC), which the Commissioner assesses
after completing the third analytical step. 20 C.F.R. §§ 404.1520(e),
416.920(e). A claimant’s RFC is the most the claimant can do despite
limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The Commissioner determines the claimant’s RFC based on all relevant evidence in
the record. SSR 16 3p, 2017 WL 5180304, at *4–*5 (Oct. 25, 2017).
After analyzing the claimant’s RFC, the Commissioner proceeds to
the fourth and fifth steps of the analysis. At step four, the Commissioner determines whether the claimant can perform his or her past
relevant work in light of his or her RFC. 20 C.F.R. §§

2

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If so, the claimant is not disabled.
Id. At step five, the Commissioner bears the burden to show—in light
of the claimant’s RFC, age, education, and work experience—that suitable work “exists in significant numbers in the national economy.” 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c)(2),
416.960(c)(2).
B
Plaintiff was severely injured while at work when a railroad beam
fell on his head in July 2015 and he was hospitalized for nearly a month.
Doc. 8 at 1, 4. He protectively filed for disability in September 2017
and claims he cannot work due to multiple impairments, many of
which arose from the work injury, including hearing loss and traumatic
brain injury. See Doc. 8 at 1–2; Adm. Rec. 13.
This is Plaintiff’s second appeal of an ALJ’s unfavorable decision
on his claim. He was initially denied by an ALJ in October 2020, which
was reversed and remanded for additional proceedings. See Adm. Rec.
1835 (citing case no. 21-cv-2136). In November 2022, an ALJ issued
the unfavorable decision that is the basis of this appeal. See Doc. 8 at
1.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 27, 2015. Adm. Rec. at 1752.2 At step
two, the ALJ determined that Plaintiff had several medically determinable impairments. Id. In particular, he found Plaintiff had eight “severe impairments: bilateral hearing loss with right ear deformity statuspost surgical fixation; obesity; traumatic brain injury; neurocognitive
disorder; depressive disorder; generalized anxiety disorder; post-traumatic stress disorder (PTSD); and polysubstance abuse.” Id. (citing 20
C.F.R. § 404.1520(c)). The ALJ found that Plaintiff also had eighteen
non-severe impairments, including “headaches/migraines.” Id. The
ALJ credited these impairments as non-severe because they were resolved with treatment, were being adequately controlled, or had not
persisted for a continuous 12 months or more. Id.
At step three, the ALJ found that none of Plaintiff’s impairments,
alone or in combination, met or medically equaled an impairment listed
in 20 C.F.R. Pt. 404, Subpt. P, App. 1. Adm. Rec. at 1753. Specifically,
2

All references to the parties’ briefs are to the page numbers assigned by CM/ECF
except for factual references to the Administrative Record (Adm. Rec.).

3

he analyzed Listing 2.10 (hearing loss), 11.18 (traumatic brain injury),
and four listings for mental disorders: 12.02 (neurocognitive disorders), 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety
and obsessive-compulsive disorders), and 12.15 (trauma- and stressorrelated disorders). Id. at 1753–54.
At step four, the ALJ found that Plaintiff had the residual functional capacity to perform light work. Adm. Rec. at 1755–60. Specifically, he found:
[T]he claimant had the residual functional capacity to
lift and carry up to twenty pounds occasionally and lift
or carry up to ten pounds frequently; stand and/or
walk for six hours out of an eight-hour workday; and
sit for six hours out of an eight-hour workday. The
claimant can occasionally climb ladders, ropes and
scaffolds; and can frequently climb ramps and stairs.
The claimant can occasionally tolerate exposure to humidity and extreme heat. The claimant can occasionally
work at unprotected heights or with moving mechanical parts. Due to right-sided hearing loss the claimant
is limited to occupations that do not require fine hearing capability, complex verbal communications, or frequent verbal communications such as telephone communication, but is able to hear and understand simple
verbal instructions and to communicate simple information. The claimant is able to apply common sense
understanding to carry out detailed, but uninvolved instructions in the performance of simple, routine and
repetitive tasks in a work environment with no fastpaced production requirements involving only simple,
work-related decisions and with occasional judgment
and workplace changes. The claimant can occasionally
respond to and have interaction with coworkers and
the general public.
Id. at 1755.
At step five, the ALJ found that Plaintiff could not perform any
past relevant work. Adm. Rec. at 1760–61. But the ALJ also found that
Plaintiff could perform other jobs in the national economy, even with
his limitations. Id. at 1761–62. Specifically, the ALJ found that Plaintiff

4

could perform the jobs of deli cutter/slicer, silver wrapper, and apparel
stock checker. Id. He also found that these jobs existed in sufficient
numbers in the national economy. Id. Thus, the ALJ determined that
Plaintiff was not disabled. Id.
Plaintiff seeks review of the ALJ’s decision. See Doc. 8. He contends that the ALJ erred in three ways: failing to support his RFC determination regarding Plaintiff’s mental and physical limitations with
substantial evidence, failing to resolve conflicts between the RFC and
the vocational expert’s testimony, and failing to consider whether
Plaintiff was entitled to a closed period of disability. Id.
II
Plaintiff argues that the ALJ’s determination is wrong in three principal ways. But he has failed to establish the absence of substantial evidence to support the ALJ’s factual findings or that the ALJ failed to
apply the correct legal standards. As a result, the Commissioner’s final
decision is affirmed.
A
Plaintiff first asserts that the ALJ’s determination of Plaintiff’s
mental and physical functional limitations was not supported by substantial evidence. Doc. 8 at 27–32. Plaintiff is incorrect: the ALJ’s RFC
determination was supported by substantial evidence.
1
Plaintiff argues that the ALJ miscalculated his mental functional
limitations after finding Dr. Andert’s opinion only partially persuasive.
Dr. Andert’s opinion was only partially persuasive, in the ALJ’s view,
because it incorrectly concluded that Plaintiff could only sustain oneor two-step instructions. Doc. 8 at 27. Plaintiff’s position is that the
ALJ overstated his activities of daily living, failed to explain how those
activities related to his ability to follow instructions, unfairly evaluated
his history of mental health treatment, and asserted without explanation that he had “essentially normal mental status examinations.” Doc.
8 at 27–31. None of these arguments provides a basis for remand.
The ALJ found that Plaintiff could “perform simple, routine, and
repetitive tasks,” and thus that he was not limited to one- or two-step
instructions as Dr. Andert opined. He supported that finding with Dr.

5

Andert’s own opinion, other medical opinions, and Plaintiff’s activities
of daily living. Adm. Rec. at 1755–60. Dr. Andert had opined that
“claimant was capable of doing more complex instructions,” but he
did not believe Plaintiff could sustain operating at that level. Id. at 1758.
But another expert, Dr. Mintz, stated that Plaintiff could “understand
and remember simple and intermediate job instructions.” Id. at 1759.
The ALJ found both doctors partially persuasive to the extent that the
objective medical evidence showing Plaintiff’s “delayed recall” performance suggested that he was “limited to simple, routine, repetitive
tasks.” Id. But the ALJ found that Dr. Andert’s opinion did not account for all of Plaintiff’s abilities because the evidence showed he had
“essentially normal mental status examinations” and his “reported activities of daily living” involved tasks beyond “1-2 step instructions.”
Adm. Rec. at 1758.
Plaintiff appears to believe that the ALJ’s analysis of Dr. Andert’s
opinion should be read in a vacuum. He argues that the ALJ’s statement about “essentially normal mental status examinations” is conclusory, Doc. 8 at 29–30, and that the Commissioner offered only “post
hoc” rationalizations when he pointed to other parts of the ALJ’s RFC
determination, Doc. 16 at 4. Not so. The phrase “essentially normal
mental status examinations” was a summary of facts considered, not a
conclusory statement: the ALJ had already provided specific details
about Plaintiff’s performance on the objective mental status examinations. Adm. Rec. 1757–59. The ALJ recounted that Plaintiff “could
only recall one out of three items after a five-minute delay,” but noted
examinations revealing that “[Plaintiff] did not exhibit any gross mental confusion, disturbances of logic, or deficits in information processing.” Id. Nor did those examinations show “any serious chronic
cognitive deficits.” Id. The ALJ referred to this detailed summary in
shorthand as “essentially normal mental status examinations” to explain why or why not he found each medical opinion persuasive. That
phrase is far from a post hoc rationalization. See Cobb v. Astrue, 364 F.
App’x 445, 450 (10th Cir. 2010) (affirming that an ALJ’s decision may
be read “as a whole” when determining whether a statement is without
proper explanation).
The ALJ also properly considered Plaintiff’s activities of daily living and conservative treatment history when evaluating Plaintiff’s own
statements about his symptoms. See 20 C.F.R. § 404.152(c)(3); SSR 163p, 2017 WL 5180304 (Oct. 25, 2017); contra Doc. 8 at 27–32. While
activities of daily living cannot be conflated with a plaintiff’s ability to

6

work, such activities can be considered when evaluating the severity of
a plaintiff’s claims. Adcock v. Comm’r, SSA, 748 F. App’x 842, 848 (10th
Cir. 2018). Similarly, an ALJ may use a plaintiff’s medical treatment to
evaluate his statements about the intensity, persistence, and limiting
effects of a symptom. Parise v. Astrue, 421 F. App’x 786, 789 (10th Cir.
2010); contra Doc. 14 at 28–29. The ALJ remained within these boundaries. He did not overstate Plaintiff’s activities of daily living, nor did
he fail to connect them to relevant work activity. Contra Doc. 8 at 27–
32.
The ALJ did refer to Plaintiff’s ability to care for “children”, Adm.
Rec. at 1754–55, 58–59, even though Plaintiff said at the hearing that
one child had since died, id. at 1792. But discussing Plaintiff’s ability to
care for “children,” was neither improper nor a factual error even
though at the time of the ALJ’s final decision, Plaintiff had one surviving child. Contra Doc. 8 at 28. Rather, the ALJ was addressing Plaintiff’s
testimony at the hearing that had discussed Plaintiff’s activities caring
for his “children” during part of the disability period. Adm. Rec. 1792–
95. The ALJ separately credited that Plaintiff needed help caring for
children and that Plaintiff often only cared for one child at a time, noting that “he takes his son to school and the park.” Adm. Rec. at 1755,
1757. At base, the number of children Plaintiff cared for at each moment in his alleged period of disability goes to the strength of the inference that he could perform various tasks over and above being limited to one or two step instructions, not the propriety of concluding
that Plaintiff could and did generally care for “children.” And how to
weigh evidence, as well as the strength of inferences which to draw
from it, is quintessentially a question for the ALJ. Grogan v. Barnhart,
399 F.3d 1257, 1262 (10th Cir. 2005). It is not something for district
courts to second guess on appeal. Id. And the ALJ also noted that
Plaintiff “spends time with family and is able to perform self-care and
drive on a regular basis.” Id. at 1757. The ALJ explained that these
activities of daily living were “just one more indication” that Plaintiff’s
mental capacity was “not as limited as he allege[d]” because these regular activities are similar to tasks necessary to “everyday basic work
activity.” Adm. Rec. at 1757. So the ALJ properly used activities of
daily living in his credibility determination. See Duncan v. Colvin, 608 F.
App’x 566, 578 (10th Cir. 2015) (affirming the consideration of “activities of daily living” in making a credibility determination about a disability claimant).

7

Plaintiff also asserts that the ALJ mischaracterized his mental
health treatment. As evidence of that mischaracterization, he points to
the ALJ’s observation that Plaintiff did not seek “formal psychiatric
care,” something Plaintiff observes there is “no requirement” that he
do to show a mental health impairment. Doc. 8 at 31.
The ALJ’s observation is not a mischaracterization. The ALJ credited the medical evidence that Plaintiff was receiving mental health services from an internal medicine physician. Adm. Rec. 1756–57. But the
ALJ noted that Plaintiff did not pursue sustained counseling until years
after the alleged onset date of disability,3 and that Plaintiff never received “inpatient psychiatric treatment or emergency intervention.”
Adm. Rec. 1757. The ALJ then used Plaintiff’s limited mental health
treatment to support his credibility determination that “other than his
subjective symptoms, there is little evidence to support the severity and
degree of limitation the claimant asserts.” Id. Thus, the ALJ’s evaluation of Plaintiff’s mental health treatment was proper, and his credibility determination was supported by substantial evidence. See Bainbridge
v. Colvin, 618 F. App’x 384, 387 (10th Cir. 2015) (noting that conservative treatment may undermine the credibility of a plaintiff’s assertion
of limitations).
In short, the ALJ supported his mental RFC finding with substantial evidence. He properly characterized Plaintiff’s objective medical
evidence, activities of daily living, and conservative treatment history
to find Plaintiff’s RFC was “consistent with being able to perform simple, routine, repetitive tasks.” Adm. Rec. 1758. The ALJ’s opinion
need not be disturbed. See Hendron v. Colvin, 767 F.3d 951, 954–56 (10th
Cir. 2014) (holding that an ALJ adequately supports his RFC
Plaintiff alleges that the ALJ ignored evidence that he was seeing a psychologist in 2017. Doc. 8 at 31 (citing Adm. Rec. 365). But the administrative
record does not include records from that psychologist, only a brief mention
in the internal medicine physician’s notes: “Started with psychologist Laura
Talley and plans to continue to see her.” That particular line does not disturb
the ALJ’s conclusion. Contra Doc. 8 at 31. And, in any event, the ALJ stated
he reviewed all medical evidence, and this single line has no ultimate effect
on the RFC determination, so does not warrant explicit analysis. See Howard
v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (“When the ALJ does not need
to reject or weigh evidence unfavorably in order to determine a claimant’s
RFC, the need for express analysis is weakened.”); see also Wall v. Astrue, 561
F.3d 1048, 1067 (10th Cir. 2009) (noting that an ALJ is not required to discuss
every piece of evidence).
3

8

determination when he thoroughly reviews the medical evidence and
plaintiff’s self-reported abilities and activities); Flaherty v. Astrue, 515
F.3d 1067, 1071 (10th Cir. 2007) (“[The] limited scope of review precludes this court from reweighing the evidence or substituting our
judgment for that of the [Commissioner].”).
2
Plaintiff also says that the ALJ failed to consider all his medically
determinable impairments in determining his physical RFC. Doc. 8 at
32. Specifically, Plaintiff says that the ALJ was required to consider the
implication of Plaintiff’s migraines because the migraines would cause
absenteeism and/or time-off-task. Id. But the ALJ considered all of
Plaintiff’s medically determinable impairments in determining Plaintiff’s RFC. See Adm. Rec. at 1755.
An ALJ must consider all of a plaintiff’s medically determinable
impairments, even those that are non-severe, in his RFC determination. 20 C.F.R. § 404.1523; 404.1545(a)(2); see also Alarid v. Colvin, 590
F. App’x 789 (10th Cir. 2014) (citing Wells v. Colvin, 727 F.3d 1061,
1065 (10th Cir. 2013)). This obligation does not mean the ALJ must
“discuss every piece of evidence,” rather, a court will “generally find
the ALJ’s decision adequate if it discusses the uncontroverted evidence
the ALJ chooses not to rely upon and any significantly probative evidence.” See Wall v. Astrue, 561 F.3d 1048, 1067 (10th Cir. 2009). In
other words, an ALJ is not required to explain how every identified
impairment would have “resulted in additional functional limitations
or exacerbated any other impairment.” Smith v. Colvin, 625 F. App’x
896, 899 (10th Cir. 2015).
The ALJ here explicitly considered Plaintiff’s headaches and migraines as a medically determinable impairment when he found them
to be non-severe at step two. Adm. Rec. at 1752; see also 20 C.F.R. §
404.1522 (a non-severe impairment, by definition, is one that “does
not significantly limit [plaintiff’s] physical or mental ability to do basic
work activities”). And the ALJ said he “considered all of the claimant’s
impairments and all of the records when assessing the claimant’s residual functional capacity.” Adm. Rec. at 1753; see also id. at 1755; Oneal v.
Comm’r, SSA, No. 22-1102, 2023 WL 2822123, at *2 (10th Cir. Apr. 7,
2023) (holding that an ALJ’s detailed review of the medical record and
explicit statement that he considered the entire record met the ALJ’s
obligation to consider all impairments in the RFC determination).
Consequently, Plaintiff’s argument that he would have had additional

9

functional limitations in his RFC had the ALJ properly considered his
migraines is essentially an attempt to dispute the ALJ’s implicit conclusion that his migraines were non-severe, i.e., impairments which did
“not significantly limit” basic work activities. Federal courts may not
reweigh the evidence. Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir.
2005).
It is especially telling that Plaintiff does not point to any medical
evidence or opinion in the record that his headaches and migraines
would have resulted in a physical work limitation of absenteeism or
time-off-task. See id.; see also Watts v. Berryhill, 705 F. App’x 759, 762
(10th Cir. 2017) (“[A]n ALJ may permissibly engage in a less extensive
analysis of the medical evidence where ‘none of the record medical
evidence conflicts with the ALJ’s conclusion that claimant can perform
…work.’”)(quoting Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir.
2004)). Instead, Plaintiff points to his own testimony that he has migraines twice per week. See Doc. 8 at 32 (citing Adm. Rec. 1796–97).
But that is insufficient: In order to credit this argument, a court would
have to come to its own independent medical conclusion that Plaintiff’s testimony was more credible than the ALJ’s finding that Plaintiff’s
migraines would “not significantly limit” basic work activities. But
Plaintiff’s assertion that his headaches and migraines would result in
absenteeism or time-off-task lacks support in the medical record. And
a physical limitation that is unsupported by the record is not uncontroverted evidence, so the ALJ was not required to explicitly address
it. See Wall v. Astrue, 561 F.3d 1048 (10th Cir. 2009) (noting an ALJ is
only obligated to discuss “uncontroverted evidence”); Smith v. Colvin,
625 F. App’x 896, 899 (10th Cir. 2015) (holding that an ALJ was not
required to discuss the limiting effect of a severe impairment on each
physical RFC determination); Natalie L. v. Kijakazi, 631 F. Supp. 3d
1114 (D. Utah 2022), aff’d sub nom. Lager v. Comm’r, SSA, No. 22-4116,
2023 WL 6307490 (10th Cir. Sept. 28, 2023) (holding that an ALJ was
not required to consider absenteeism as a result of migraines when
there was no evidence in the record to support the plaintiff’s assertion
of the degree of absenteeism).
B
Plaintiff asserts the Commissioner failed to sustain his burden at
step five. At step five, “the burden of proof shifts to the Commissioner” to show that a claimant has the RFC “to perform work in the
national economy, given her age, education, and work experience.”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation and

10

internal quotation marks omitted). An ALJ may rely on a “vocational
expert” to answer this question. See Poppa v. Astrue, 569 F.3d 1167, 1173
(10th Cir. 2009). Vocational experts “provide evidence at hearings before [ALJs],” including information from the “Dictionary of Occupational Titles” (DOT). See SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000).
“An ALJ must resolve conflicts between the VE’s testimony and the
DOT.” Staheli v. Comm'r, SSA, 84 F.4th 901, 909 (10th Cir. 2023).
Plaintiff’s main argument is that the ALJ failed to reconcile a conflict between Plaintiff’s RFC and the jobs identified by the vocational
expert. Doc. 8 at 32–34. Specifically, Plaintiff contends that the vocational expert identified reasoning level two jobs even though Plaintiff’s
RFC limited him to reasoning level one jobs. Doc. 8 at 34.
But there was no conflict here for the ALJ to resolve. Contra Doc.
8 at 34. The ALJ determined that Plaintiff could:
apply common sense understanding to carry out detailed, but uninvolved instructions in the performance
of simple, routine and repetitive tasks in a work environment with no fast-paced production requirements
involving only simple, work-related decisions and with
only occasional judgment and workplace changes.
Adm. Rec. 1755. This RFC determination is not facially inconsistent
with the DOT’s definition of reasoning level two jobs; in fact, it
adopts, practically verbatim, the first half of the DOT’s reasoning level
two definition. See U.S. Dep’t of Labor, Dictionary of Occupational Titles,
Appendix C (4th Ed. 1991), www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC (defining reasoning level
two as “[a]pply commonsense understanding to carry out detailed but
uninvolved written or oral instructions. Deal with problems involving
a few concrete variables in or from standardized situations”). Moreover, the ALJ considered and explicitly rejected the idea that Plaintiff
should “be[] limited to only 1-2 step instructions.” Adm. Rec. at 1758.
Assessing Plaintiff’s capacity for reasoning level two jobs was consistent with Plaintiff’s assessed reasoning limitations.
Plaintiff says that his RFC is not verbatim from the definition of
reasoning level two because the ALJ found that Plaintiff should be
limited to “simple, work-related decisions with only occasional judgment and workplace changes.” Adm. Rec. at 1755; Doc. 8 at 34. Plaintiff says that limit is more consistent with reasoning level one, which

11

requires a person to “[a]pply commonsense understanding to carry out
simple one- or two-step instructions” and “[d]eal with standardized
situations with occasional or no variables in or from these situations
encountered on the job.” See Doc. 8 at 34. But the ALJ’s use of the
word “occasional” does not limit Plaintiff to reasoning level one jobs.
Plaintiff identifies no factual conflict between his RFC to perform with
“occasional judgment and workplace changes” and reasoning level
two, which requires him to reason from “standardized situations” with
a few concrete variables. See Kyle Edward Victor G. v. Saul, No. CV 192518, 2020 WL 3960422, at *9–10 (D. Kan. July 13, 2020) (rejecting
the argument that limiting a plaintiff to “occasional judgment” in the
plaintiff’s RFC also limited the plaintiff to reasoning level one jobs).
Plaintiff’s reliance on R.S. v. Saul is misplaced. Contra Doc. 8 at 34 (citing Case No. 20-2416, 2021 WL 2156412, at *9 (D. Kan. May 27,
2021)). Unlike the claimant in R.S., whose RFC was more restrictive
limiting R.S. to “few, if any, workplace changes,” 2021 WL 2156412,
at *9 (D. Kan. May 27, 2021) (emphasis added), Plaintiff’s RFC is that
he can accommodate “occasional workplace changes,” Adm. Rec.
1755.
The ALJ did not run afoul of his requirements to resolve conflicts
pursuant to SSR 00-4p. Contra Doc. 8 at 33–34. Plaintiff fails to identify
a meaningful conflict, and the ALJ asked the vocational expert, Dr.
Debra Steele, whether there was a conflict and she testified there was
not. See Adm. Rec. 1801–05; see also SSR 00-4p, 2000 WL 1898704
(Dec. 4, 2000) (requiring that “[w]hen there is an apparent unresolved
conflict between VE or VS evidence and the DOT, the adjudicator
must elicit a reasonable explanation for the conflict”). That is adequate
to discharge the ALJ’s duty. See Mendez v. Colvin, 588 F. App’x 776 (10th
Cir. 2014) (citing Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) for
the principle that an “ALJ can rely on the VE’s testimony if there is
adequate record support for doing so because ‘all kinds of implicit conflicts are possible and the categorical requirements listed in the DOT
do not and cannot satisfactorily answer every such situation”); Barrett
v. Astrue, 340 F. App’x 481, 488 (10th Cir. 2009) (holding there was no
conflict for the ALJ to resolve at step five when the RFC was limited
to “simple tasks and only tasks that require him to exercise occasional
judgment” and a job listed in the DOT for reasoning level two.).
Plaintiff also asserts that the vocational expert erroneously identified that he could act as a deli cutter/slicer, DOT # 316.684-014, so
remand is warranted because the ALJ did not separately find that the

12

other two jobs existed in significant numbers in the national economy.
Doc. 8 at 35–36. Even if true, an ALJ need only identify one job that
Plaintiff could do that exists in significant numbers in the national
economy. Garcia v. Comm’r, SSA, 817 F. App’x 640, 649–50 (10th Cir.
2020). The requirement is satisfied here because silver wrapper, has
155,340 jobs in the national economy. See Adm. Rec. at 1762; Stokes v.
Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (holding no reasonable
factfinder could hold that 152,000 jobs in the national economy was
not “significant”).
C
Plaintiff finally asserts that the ALJ erred by not evaluating his
claim in the alternative for a closed period of disability. Doc. 8 at 36–
37. A closed period of disability application requires that an ALJ consider whether a plaintiff was disabled for a finite period of time but
recovered from his disability before the ALJ’s decision. Newbold v. Colvin, 718 F.3d 1257, n.1 (10th Cir. 2013) (describing a closed-period
case). Plaintiff here identified one such period where the ALJ could
have found him disabled “[s]olely for example” from June 30, 2017 to
“beyond” April 27, 2018 since was “having surgeries and severe daily
headaches.” Id. at 37.
The ALJ was not obligated to consider a closed period of disability
for two reasons. First, Plaintiff did not amend his claim to request consideration of a closed period of disability—nor did he provide a precise
end date. The ALJ was not obligated to consider a question not presented to him. See Hays v. Kijakazi, No. CIV-21-448, 2022 WL 3582507,
at *5 (W.D. Okla. Aug. 19, 2022) (collecting cases); see also Combs v.
Kijakazi, 69 F.4th 428, 437 (7th Cir. 2023) (nothing that an ALJ has no
obligation to consider a closed period where the end date cannot be
identified). Second, the ALJ determined that Plaintiff retained the capacity to work from his alleged onset date. Adm. Rec. 1749–62. Where
the ALJ concludes that a plaintiff does not meet disability requirements
during any period relevant to his claim, the ALJ cannot assess a closed
period of disability benefits. See Powell v. Kijakazi, No. CV 21-443, 2022
WL 2904393, at *12 (D.N.M. July 22, 2022); Jones v. Comm’r of Soc. Sec.,
181 F. App’x 767, 773 (11th Cir. 2006); cf. Robinson v. Apfel, 172 F.3d
63, 1999 WL 74025, at *4 (10th Cir. 1999).

13

III
For the foregoing reasons, the Commissioner’s final decision is
AFFIRMED.
It is so ordered.

Date: May 8, 2024

s/ Toby Crouse
Toby Crouse
United States District Judge

14