Buckles v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision. Signed by District Judge John W. Lungstrum on 09/09/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONNA BUCKLES,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 13-1307-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner’s decision,
the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) AFFIRMING that decision.
I.

Background
Plaintiff applied for SSD and SSI, alleging disability beginning May 3, 2011. (R.

11, 79-84). In due course, Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying benefits. She claims that

substantial evidence does not support the Administrative Law Judge’s (ALJ) residual
functional capacity (RFC) assessment, and that the ALJ did not provide specific,
legitimate reasons to discount the credibility of Plaintiff’s allegations of symptoms.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether she applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
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The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
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economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds no error in the decision at issue for the reasons enumerated below.
Because a credibility determination is a necessary part of an RFC assessment, the court
begins its analysis with consideration of Plaintiff’s arguments regarding the credibility
determination. It then proceeds to her arguments that the record evidence does not
support the ALJ’s RFC assessment.
II.

The Credibility Determination
Plaintiff asserts that the ALJ discounted the credibility of her allegations of

disabling symptoms for only two reasons, because Plaintiff has a financial interest in
receiving disability benefits, and because there are certain evidentiary inconsistencies.
Plaintiff claims that this is error requiring remand because a financial interest in receiving
benefits applies to the allegations of every claimant, and because the ALJ’s analysis of
the alleged evidentiary inconsistencies is not specific and is incapable of meaningful
review. The Commissioner agrees that every claimant has a financial interest in receiving
benefits, but argues that the ALJ’s statement to that effect was merely dicta indicating
why a claimant’s allegations cannot be taken at face value. She argues that the
regulations merely require that the ALJ identify in her decision the inconsistencies in the
record which justify a finding that the claimant’s allegations are not credible. Finally, the
Commissioner notes that the ALJ identified evidence “showing that the objective
findings, treatment records, and examination findings did not lend support to Plaintiff’s
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credibility” (Comm’r Br. 5), points to the inconsistencies identified by the ALJ, and
argues that the ALJ properly evaluated credibility in accordance with the regulations and
policies. The court agrees with the Commissioner that the ALJ did consider and identify
objective findings that do not lend support to Plaintiff’s allegations of debilitating pain
and functional limitations.
A.

The ALJ’s Credibility Evaluation

The ALJ found that Plaintiff’s impairments “could reasonably be expected to
cause the alleged symptoms,” but that her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible.” (R. 18). She noted
that Plaintiff “does have degenerative disc disease of the lumbar spine, and osteoarthritis
in her left ankle, however, the objective medical evidence does not support the claimant’s
allegations of debilitating pain and functional limitations.” Id. The ALJ then summarized
the medical evidence, and pointed out that medical evidence which is inconsistent with
Plaintiff’s allegations: (1) “there is no indication in the record that the claimant’s
degenerative lumbar changes result in significant stenosis or nerve root irritation;” there
was (2) full range of motion in Plaintiff’s ankle; (3) examination of Plaintiff’s back was
largely unremarkable, and (4) Plaintiff was able to bend six inches to the floor;
(5) straight leg raising was negative, (6) there was no muscle atrophy, and no motor,
reflex, or sensory abnormalities; (7) Plaintiff was able to ambulate without an assistive
device, and had only mild difficulties with orthopedic maneuvers; (8) testing revealed
only moderate pulmonary obstruction, administration of a bronchodilator produced
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significant improvement in lung function, (9) chest x-rays were negative, and examination
revealed clear lungs, slightly diminished breath sounds, and no use of accessory muscles
for respiration; (10) sleep studies show only mild sleep apnea, and Plaintiff tolerates the
use of a continuous positive airway pressure (CPAP) machine well; and, (11) medical
records show that Plaintiff has had no specialized mental health treatment, or inpatient
psychiatric hospitalization. (R. 18-19). The ALJ stated her findings regarding credibility:
A trier of fact is required to determine a witness’ credibility in consideration
of all the circumstances, including the extent to which her testimony is
contradicted or corroborated by other evidence, and any other
circumstances that tend to shed light upon her credibility. Additionally, the
[(12)] claimant’s financial interest in the outcome, and the evidentiary
inconsistencies discussed above detract from reliance upon the claimant’s
testimony as a basis for decision-making. The undersigned finds that
although she has medically determinable severe impairments, these
impairments do not cause the degree of limitations alleged by the claimant.
When evaluated, the [(13)] claimant’s subjective complaints are found to be
somewhat exaggerated and inconsistent with the other evidence, including
the clinical and objective findings of record, and would not be a sound basis
for a finding of disability.
(R. 20) (numbering added to identify bases for discounting Plaintiff’s allegations).
B.

Standard for Evaluating Credibility

The Tenth Circuit has explained the analysis for considering subjective testimony
regarding symptoms. Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)
(dealing specifically with pain).
A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain. This court
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has stated: The framework for the proper analysis of Claimant’s evidence
of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We
must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact disabling.
Thompson, 987 F.2d at 1488(citations and quotation omitted).
In evaluating credibility, the court has recognized a non-exhaustive list of factors
which should be considered. Luna, 834 F.2d at 165-66; see also 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3). These factors include:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility
that are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, 987 F.2d at
1489). The Commissioner has promulgated regulations suggesting relevant factors to be
considered in evaluating credibility which overlap and expand upon the factors stated by
the court: Daily activities; location, duration, frequency, and intensity of symptoms;
factors precipitating and aggravating symptoms; type, dosage, effectiveness, and side
effects of medications taken to relieve symptoms; treatment for symptoms; measures
plaintiff has taken to relieve symptoms; and other factors concerning limitations or
restrictions resulting from symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i-vii),
416.929(c)(3)(i-vii).

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The court’s review of an ALJ’s credibility determination is deferential. Credibility
determinations are generally treated as binding on review. Talley v. Sullivan, 908 F.2d
585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983).
“Credibility determinations are peculiarly the province of the finder of fact” and will not
be overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173. Therefore, in reviewing the ALJ’s credibility determinations,
the court will usually defer to the ALJ on matters involving witness credibility. Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); but see Thompson, 987 F.2d at 1490
(“deference is not an absolute rule”). “However, ‘[f]indings as to credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125,
1133 (10th Cir. 1988)); Hackett, 395 F.3d at 1173 (same).
C.

Analysis

The Commissioner suggests that the ALJ’s reference to Plaintiff’s financial
interest in receiving benefits is merely dicta explaining why a claimant’s allegations
cannot be taken at face value. While it is true that such a reason is applicable to every
disability claimant, and serves as a reason why every claimant’s allegations cannot be
taken at face value, it is also true that in this case the ALJ appeared to use that basis as
one of thirteen reasons to discount Plaintiff’s allegations. Although the court finds this
reason provides little weight in suggesting that a particular claimant’s allegations are

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incredible, it will not say the reason may never be relied upon in finding a claimant’s
allegations not credible.
Here, the ALJ found that Plaintiff has medically determinable impairments of
asthma, chronic obstructive pulmonary disease, sleep apnea, degenerative disc disease,
osteoarthritis, anxiety disorder, hypertension, migraines, and obesity. (R. 13-14). She
found that Plaintiff’s “medically determinable impairments could reasonably be expected
to cause the alleged symptoms.” (R. 18). Therefore, she was required to consider all of
the evidence, both objective and subjective. The ALJ stated the law, that in such a case
she is required to “make a finding on the credibility of [Plaintiff’s] statements based on a
consideration of the entire case record” (R. 17), and she stated that she had made her
credibility determination “in consideration of all the circumstances.” (R. 20). The court
will take her at her word. Hackett, 395 F.3d at 1173 (the court’s general practice is to
take a lower tribunal at its word when it declares that it has considered a matter.) The
ALJ stated that she considered all of the evidence, both subjective and objective, and
determined on that basis that Plaintiff’s allegations are not credible, and Plaintiff does not
demonstrate that she did not do so.
Plaintiff asserts that “the only other factor the ALJ cited [to discount her
credibility] is a conclusory allegation that [Ms.] Buckles testimony is inconsistent with
the record.” (Pl. Br. 16). However, in addition to the fact that Ms. Buckles has a
financial interest in the outcome of this case, the ALJ stated 11 specific items of medical
evidence which are inconsistent with Plaintiff’s allegations of debilitating pain and
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functional limitations; supra, reasons 1-11; and also noted his finding that Plaintiff
exaggerated her complaints. (R. 18-20). Despite her assertion that the ALJ’s findings are
conclusory, Plaintiff does not argue that any of the reasons relied upon by the ALJ are
erroneous or are not supported by the evidence, and she does not point to any fact or rule
which would preclude the ALJ’s reliance upon these reasons. Plaintiff has not shown
how the record evidence precludes reliance upon the reasons given by the ALJ or why the
ALJ’s credibility determination is unworthy of deference in this case. Consequently, she
has shown no error in the ALJ’s credibility determination.
III.

RFC Assessment
Plaintiff asserts that the ALJ gave significant weight to the medical opinion of Dr.

Gault, the non-treating psychologist who provided a report on a consultative
psychological evaluation she conducted at the request of the state agency, and to the
opinions of the state agency psychologists who reviewed the record at the initial and
reconsideration levels respectively, Dr. Maxfield and Dr. Schulman. But, she claims that
there was a material inconsistency with regard to Plaintiff’s ability to persist on tasks
between those opinions and the ALJ’s RFC assessment, which inconsistency the ALJ
erroneously failed to address. She argues that the ALJ’s failure to address the
inconsistency is made more egregious because the third-party opinions of Plaintiff’s coworker, Nurse Bradley, and her daughter, Jennifer, support the doctor’s opinions that
Plaintiff is unable to persist.

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The Commissioner argues that the ALJ properly weighed the medical opinions.
She argues that the ALJ explained why he rejected the state agency consultants’ opinion
that Plaintiff should have limited interaction with the public. She argues further that Dr.
Gaut’s opinion regarding persistence, and the state agency doctors’ opinion that
Plaintiff’s concentration and persistence was moderately limited in the ability to carry out
detailed instructions was adequately accommodated by the ALJ’s finding that Plaintiff is
able to understand, remember, and carry out only simple instructions. With regard to the
third-party opinions, the Commissioner argues that the ALJ discussed the third-party
opinions of Plaintiff’s husband and explained why she accorded them little weight, and
that although she did not discuss the opinions of Plaintiff’s co-worker or daughter, those
opinions were largely cumulative and discreditable on the same bases.
In her reply brief, Plaintiff once again addressed the third-party opinions. She
argues that an ALJ is required to consider all “other source” opinions, that the
Commissioner admits that the ALJ ignored the opinions of the co-worker and Plaintiff’s
daughter, and the opinions are particularly relevant in this case because they support the
medical opinions of the doctors.
A.

The ALJ’s Determination

The ALJ summarized Dr. Gaut’s examination of Plaintiff, and accorded
“substantial weight” to her opinion that Plaintiff “is capable of understanding and
carrying out simple instructions, and would have no difficulty getting along with others or
taking directions from a supervisor. (R. 19) (citing Ex. 5F at 69 (R. 250)). She accorded
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“significant weight” “to the opinion of the state agency psychological consultant, whose
assessment of the claimant’s functional abilities is largely identical to that of Dr. Gaut.”
(R. 19) (citing Ex. 1A at 18 (R. 29)).1 But, she gave no weight to Dr. Schulman’s opinion
that Plaintiff should have limited interaction with the general public because that opinion
found no support in Dr. Gaut’s report or even in Plaintiff’s reports. Id. at 19-20. Finally,
the ALJ gave “little weight” to the third-party opinions of Plaintiff’s husband because
they were based on casual observation, were potentially influence by family loyalties, did
not outweigh the medical evidence, and were cumulative of Plaintiff’s testimony. (R. 20)
(citing Exs. 2E, 9E (R. 147-56, 182-89)).
B.

Analysis

Plaintiff acknowledges Dr. Gaut’s opinion that Plaintiff is able to understand and
carry out simple tasks. (Pl. Br. 11). But, she asserts that Dr. Gaut questioned Plaintiff’s
capacity to persist on tasks because Plaintiff’s “capacity for persistence depended on her
physical health,” and because she has “difficulty taking care of her household and
herself.” Id. (citing R. 250). However, Dr. Gaut’s report does not carry the weight

1

The opinion cited by the ALJ is that of Dr. Schulman who reviewed the record
and provided his opinion at the reconsideration level. (R. 28-29). The opinions of Dr.
Schulman and Dr. Maxfield, who reviewed the record and provided his opinion at the
initial consideration (R. 41-42), are quite similar, but they are not identical. The
difference in the two opinions was not mentioned by either party, and because Dr.
Schulman’s opinion found greater limitations in Plaintiff’s mental abilities than did Dr.
Maxfield, the difference in the two opinions does not affect the court’s determination of
the issue presented here. Nonetheless, in its analysis the court will refer only to Dr.
Schulman’s opinion, as that is the opinion on which the ALJ’s decision relied.
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assigned by Plaintiff. Dr. Gaut stated that Plaintiff’s “ability to attend daily and be
punctual is dependent upon her physical health issues.” (R. 250). In context, this is no
more than an acknowledgment that Dr. Gaut is a psychologist, not a medical doctor, and
that she does not have the expertise to determine whether Plaintiff is physically capable of
attending daily or being punctual. Dr. Gaut had already explained that “Ms. Buckles is
able to understand and carry out simple instructions. Her attention and concentration
appear to be adequuate for most tasks expected within a work environment. There are no
indications that she has difficulty getting alongside with [sic] others or taking directions
from a supervisor.” Dr. Gaut’s statement does no reflect an opinion that Plaintiff is
unable to persist, but rather, that if she is unable to persist, it is because of physical rather
than mental issues.
Plaintiff’s assertion with regard to “difficulty taking care of her household and
herself,” reflects a potential understanding of Dr. Gaut’s opinion, but it does not reflect
the understanding reached by the ALJ, and the ALJ’s understanding is supported by
substantial record evidence, and must, therefore, be accepted by the court. Dr. Gaut did
not state that Plaintiff has difficulty taking care of herself or her household. Rather, she
stated that Plaintiff “appears to have limited persistence to run a household and care for
herself.” (R. 250). While this statement might be viewed to imply difficulties running a
household or caring for herself, it might also be view to indicate that while Plaintiff does
have mental limitations in persistence, she is still able to run a household and care for

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herself. The second understanding is clearly that reached by the ALJ in this case.
Moreover, the record evidence will support that understanding.
In discussing Plaintiff’s activities of daily living, Dr. Gaut stated:
Ms. Buckles lives with her husband in a mobile home that sits on five acres.
She enjoys music, reading, fishing and taking walks. She reports that she is
persistent with her hygiene. She has difficulty with keeping a budget and
her family comes over regularly to help her manage her household budget.
Ms. Buckles makes a daily to do list and sets a goal of completing a
minimum of three tasks. If she manages to complete three tasks then she
rewards herself with going to the movies. She starts her day with a shower
and then helps to organize her husband’s medications. She plays with her
dogs and starts her to do list. She is an avid reader.
(R. 248-49) (emphases added). Dr. Gaut noted that Plaintiff has a valid driver’s license,
was neatly dressed with adequate grooming and appropriate hygiene, and earned 30 out of
30 points on a formal mental examination. (R. 49). Dr. Gaut noted that Plaintiff could
count backwards from 20 perfectly, performed serial three additions without error, only
made one error in serial seven subtractions, and was able to spell a five-letter word
backward without error. (R. 249). She noted that Plaintiff could recall three of three
objects after five minutes, and that she was slightly below average on digit span memory,
remembering only six digits when average is seven. Id. As Plaintiff pointed out in her
brief, Dr. Gaut reported that Plaintiff appears to struggle with focus, seems to require
much energy to answer questions, and her answers are often tangential. Id.
In these circumstances, it is clear that the ALJ’s understanding of Dr. Gaut’s report
is a reasonable understanding in light of this context. In light of Dr. Gaut’s consideration

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of Plaintiff’s activities of daily living, Plaintiff is persistent with her hygiene. She came
to the examination neatly dressed, with adequate grooming, and appropriate hygiene. In
these circumstance there is simply no support in Dr. Gaut’s report for a conclusion that
she believed Plaintiff has any other than minor limitations in persistence to care for
herself. It is easier to make a case from Dr. Gaut’s report that Plaintiff has difficulties
running a household, because Dr. Gaut noted that Plaintiff rewards herself when she
completes three tasks on her to do list, that Plaintiff appears to struggle with focus, and
that she seems to require much energy to answer questions. Yet, Dr. Gaut’s report also
reports significant abilities in activities of daily living, in memory and concentration, and
in intelligence, striking a virtual equipoise between ability and limitation with regard to
running a household.
But, whatever “limited persistence” means in Dr. Gaut’s report, it means the same
thing with regard to running a household and with regard to caring for herself, because
Dr. Gaut stated that Plaintiff “appears to have limited persistence to run a household and
care for herself.” (R. 250) (emphasis added). Because it is clear from the report that Dr.
Gaut did not find that Plaintiff has significant difficulties caring for herself, the same
understanding must be applied to find that Dr. Gaut did not express significant difficulties
running a household. This understanding is buttressed by the fact that in the very next
sentence Dr. Gaut expressed that Plaintiff does have difficulties in handling finances, but
that her family helps in that regard. Plaintiff has not shown that Dr. Gaut opined a greater
limitation in persistence than assessed by the ALJ.
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Nonetheless, the court need not, indeed may not, substitute its understanding of Dr.
Gaut’s report for that of the ALJ. It is sufficient that the ALJ’s understanding is a
reasonable understanding of the report which is supported by the evidence. The fact that
Plaintiff supplies a different understanding which might also be supported by the
evidence is irrelevant. “The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence. We may not displace the agency’s choice between two fairly
conflicting views, even though the court would justifiably have made a different choice
had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and
bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
Plaintiff argues that Dr. Schulman agreed with Dr. Gaut that Plaintiff “might have
difficulty concentrating for an extended period due to anxiety and physical problems,”
and that the ALJ purported to give significant weight to Dr. Schulman’s opinion, but
erred by failing to resolve the ambiguity created thereby. (Pl. Br. 11-12) (citing R. 2829). Plaintiff argues that Dr. Schulman opined that Plaintiff can understand simple
instructions, but may not have the capacity to persist on even simple tasks. Id. The court
does not agree. While Dr. Schulman opined regarding limitations in Plaintiff’s mental
capacities, the ALJ accorded significant weight to that opinion, and Plaintiff has not
shown that the limitations assessed by the ALJ do not account for the difficulties opined
by Dr. Schulman.

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Dr. Schulman opined that Plaintiff is not significantly limited in understanding and
remembering very short and simple instructions but that she is moderately limited in
understanding and remembering detailed instructions. (R. 28). In similar fashion he
opined that Plaintiff is not significantly limited in carrying out very short and simple
instructions but that she is moderately limited in carrying out detailed instructions. Id.
He opined that Plaintiff’s abilities to maintain attention and concentration for extended
periods, to sustain an ordinary routine without special supervision, and 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 are all “not significantly limited.” (R. 29). Dr. Schulman explained his
concentration and persistence limitations in a narrative: “C[laiman]t is able to carry out
simple instructions but may have difficulty with complex instructions. She is able to
attend but may have difficulty concentrating for extended periods due to her anxiety and
physical forecast for the day.” Id.
To be sure, Dr. Schulman stated that Plaintiff may have difficulty concentrating for
extended periods due to her anxiety and physical forecast for the day. But, he also opined
that Plaintiff is able to understand, remember, and carry out very short and simple
instructions, and is able to attend. The difficulty Dr. Schulman found with regard to
concentration for extended periods was attributed to complex instructions and, in part to
Plaintiff’s physical condition, but the ALJ found that Plaintiff is physically able to
perform a limited range of medium work and Plaintiff does not suggest error in that
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finding. In fact, Plaintiff did not argue error in the ALJ’s physical RFC assessment, and
does not address any of the opinions of the medical doctors. Moreover, although Dr.
Schulman opined that Plaintiff “may have difficulty concentrating for extended periods,”
he also opined that Plaintiff is “not significantly limited” in the ability to maintain
attention and concentration for extended periods. In context it is clear that Dr.
Schulman’s opinion provides that although Plaintiff may have difficulty concentrating for
extended periods, that difficulty is not significant enough to preclude understanding,
remembering, and carrying out simple instructions. Plaintiff’s argument is insufficient to
manufacture an ambiguity between Dr. Gaut’s and Dr. Schulman’s opinions and the
ALJ’s RFC assessment.
Because Plaintiff has failed to show that Dr. Gaut or Dr. Schulman opined
regarding significant mental difficulties with persistence, she cannot show that Nurse
Bradley’s or Jennifer Buckles’s opinions provide support to the doctors’ opinions.
Moreover, both third-party opinions relate to physical, not mental, difficulties with
persistence. Plaintiff’s friend and co-worker, Nurse Bradley, opined that Plaintiff
becomes weak and lethargic after minimal physical exertion. (R. 115). Plaintiff’s
daughter opined that Plaintiff has no energy and a fragile constitution that makes it
difficult to persist on household chores. (Pl. Br. 12) (citing R. 116-17). Therefore, even
if the court found greater mental difficulties with persistence, those opinions would
provide no support in that regard. Plaintiff can show no prejudice from the ALJ’s failure
to discuss these third-party opinions with relation to her mental RFC assessment, and any
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error in that regard is, therefore, harmless. To the extent the third-party opinions relate to
physical limitations, as discussed above Plaintiff did not argue error in the ALJ’s physical
RFC assessment, and has thereby waived any consideration in that regard.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s decision.
Dated this 9th day of September 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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