Brooks v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM AND ORDER: The Commissioner's final decision that the claimant was not disabled from November 8, 2008, through December 19, 2019, is affirmed. Signed by U.S. District Senior Judge Sam A. Crow on 11/17/21. (msb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS,
T.L.B.,1
Plaintiff,
Vs.

No. 20-1370-SAC

KILOLO KRJAKAZI,
Acting Commissioner of Social Security2,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the defendant
Commissioner of Social Security ("Commissioner") that denied the claimant
T.L.B.’s Title II application for disability insurance benefits and Title SVI
application for supplemental security income. The matter has been fully
briefed by the parties and, therefore, is ripe for ruling.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. ' 405(g),
which provides that the Commissioner=s finding "as to any fact, if supported
by substantial evidence, shall be conclusive." The Supreme Court recently

1 The use of initials is to preserve privacy interests.
2 On July 9, 2021, Kilolo Krjakazi was named acting Commissioner of Social

Security replacing Andrew M. Saul.

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summarized the relevant holdings behind this standard:
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains “sufficien[t]
evidence” to support the agency’s factual determinations.
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83
L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary
sufficiency is not high. Substantial evidence, this Court has said, is
“more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401,
91 S.Ct. 1420 (internal quotation marks omitted). It means—and
means only—“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated Edison, 305
U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153,
119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantialevidence standard to the deferential clearly-erroneous standard).
Biestak v. Berryhill, ---U.S.---, 139 S.Ct. 1148, 1154 (2019). In using this
standard, a court examines the whole record, including whatever in the
record fairly detracts from the weight of the Commissioner’s decision, and
decides whether substantial evidence supports the decision. Glenn v.
Shalala, 21 F.3d 983, 984 (10th Cir. 1994). A court, however, may not
reverse the Commissioner’s choice between two reasonable but conflicting
views, even if the court would have chosen differently assuming a de novo
review. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation
omitted). The court reviews “only the sufficiency of the evidence, not its
weight.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007).
PROCEDURAL BACKGROUND
TLB’s applications in 2010 alleged he was disabled beginning in

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in 2008 based on attention deficit hyperactivity disorder (“ADHD”),
depression, and dyslexia. The administrative denial of his claims was
judicially reviewed in federal district court which resulted in a remand of his
claim in 2015. On remand, a different ALJ issued an unfavorable decision in
August 2016, but the Appeals Council remanded the claims in October of
2017. The claims were heard by a different ALJ who issued an unfavorable
decision in August of 2018. The Appeals Council remanded the claims in July
of 2019, and the same ALJ issued another unfavorable decision on December
19, 2019. The Appeals Council rejected the claimant’s exceptions, and the
ALJ’s December 19th decision now stands as the Commissioner’s final
decision for purposes of judicial review.
ALJ’s DECISION
The ALJ employed the following five-step sequential evaluation
process (20 C.F.R. §§ 404.1520 and 416.920) for determining a disability
application. ECF# 14, p. 18. First, it is determined whether the claimant is
engaging in substantial gainful activity. Second, the ALJ decides whether the
claimant has a medically determinable impairment that is “severe” or a
combination of impairments which are “severe.” At step three, the ALJ
decides whether the claimant’s impairments or combination of impairments
meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part

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404, Subpart P, Appendix 1. The ALJ at step four determines the claimant’s
residual functional capacity (“RFC”) and then decides whether the claimant
has the RFC to perform the requirements of his or her past relevant work.
The last step has the ALJ determine whether the claimant is able to do any
other work considering his or her RFC, age, education and work experience.
For steps one through four, the burden rests with the claimant to prove a
disability that prevents performance of past relevant work, but the burden
shifts to the Commissioner at step five. Blea v. Barnhart, 466 F.3d 903, 907
(10th Cir. 2006).
In his decision, the ALJ found for step one that the “claimant has
not engaged in substantial gainful activity since November 30, 2008, the
alleged onset date.” ECF# 15-9, p. 13. For step two, the ALJ found the
claimant’s severe impairments were “attention deficit hyperactivity disorder,
depression, learning disorder/dyslexia.” Id. At step three, the ALJ found that
the “claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments.” Id. at 14. The ALJ determined at step four that the claimant
had the RFC:
to perform a full range of work at all exertional levels but with the
following non-exertional limitations: limited to simple, routine
repetitive tasks that are limited to low stressors such as, slow-paced
work, do not require multi-tasking; any have changes in tasks

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performed or locations of work; would work better in jobs that require
non-verbal skills; and is limited to occasional interaction with coworkers, supervisors, and with the general public.
Id. at 16. Based on this RFC finding, the ALJ determined that the claimant
does not have any relevant work but that considering his younger age, his
high school education, past work experience and RFC, “there are jobs that
exist in significant numbers in the national economy that the claimant can
perform.” Id. at 24. Thus, the ALJ found that the plaintiff was not disabled as
of November 30, 2008, through the date of the decision, December 19,
2019. Id. at 25.
SUMMARY OF RELEVANT EVIDENCE
T.L.B. attributes his mental limitations to a concussion and
injuries sustained when he was in the eighth grade. A car struck him while
he was riding his bike. He went on to complete high school with tutoring and
special assistance. A social worker referred him to Dr. Stanley Mintz for a
psychological evaluation in April of 2008 based on symptoms of an attention
deficit disorder (“ADD”) and dyslexia. Dr. Mintz noted the claimant was “a
pleasant young man, he is alert and oriented in all spheres.” ECF# 15-8, p.
6. While not appearing depressed or anxious, the claimant did exhibit
symptoms of ADD and Dyslexia. “He has done part time jobs, janitorial work
for a school district, he was doing some stocking work at a department

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store, [and] he was doing youth development work.” Id. Testing showed a
WAIS-III Full Scale I.Q. of 90 and a verbal I.Q. of 91 putting him in the
average range. Besides a learning disability in reading and math, dyslexia
and ADD, Dr. Mintz did not find any other exhibited pattern of mental illness
symptoms. Dr. Mintz encouraged the claimant to pursue his goal of
attending barber school saying he displayed the capability “of being trained
at other vocational technical levels.” Id. at 8.
Discouraged about his lack of success and unfulfilled dreams and
worried over his ability to pass the written barber school tests, T.L.B. was
seen by Dr. Melvin Berg for a psychological evaluation in March of 2010. Dr.
Berg noted that T.L.B. graduated from high school with a 2.27 GPA and with
excellent athletic achievement but was unable to participate in college sports
because of his poor grades. His verbal I.Q. was 86, and his full scale was 80
with variable performance in missing easier items while succeeding at more
difficult ones. “As a result, his scores mask his ability to succeed at more
difficult items than individuals in this range of intelligence can typically do.”
ECF# 15-8, p. 22. Dr. Berg noted that T.L.B.’s low abilities in verbal skills
and absorbing verbal information was compounded by his attention
problems. Id. at 23. Dr. Berg suggested an evaluation for ADD medication
and depressed mood medication and supportive counseling or

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psychotherapy. Id. T.L.B. followed this with a visit to the general family
physician asking about medications for ADD and mild depression as he
prepared for the written barber school examination. Id. at 31. He was
started on Concerta for seven days. Id. at 32. He apparently stopped taking
the medication in late April because of side effects, and he did not believe it
was helping. He was prescribed another ADD medication with a follow up in
four weeks.
T.L.B. next was seen by William Moore, LSCSW, in November of
2010 for an intake assessment and evaluation for therapy. He presented as
cooperative, engaged, and able-mannered but pained and sad because of
poor vocational and educational success. The prognosis was guarded due to
“perpetual pattern of procrastination and avoidance” and needing the
support of parents. Id. at 41.
In 2011, T.L.B. went to the Dyslexia and Learning Differences
Center in Lawrence. After assessments, there were recommended
accommodations for him to take the written barber school examination. Id.
at 72. He was diagnosed with ADHD, a reading disorder and learning
disability dating back to elementary school years, testing anxiety, severe
memory and auditory processing issues, and Irlen Syndrome to a moderate
to severe degree.

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In March of 2011, T.L.B. was psychologically evaluated by Dr.
Robert Barnett in connection with his disability application. Behaviorally, he
was found to be cooperative, friendly, but quiet. ECF# 15-8, p. 54. He
reported looking for work as his last full-time employment was as a stocker
in 2008 during which he got along with fellow employees and received
positive work reviews from supervisors. Id. He was not currently looking for
an outpatient therapist and had stopped taking ADD medication a month
earlier. Id. at 55. He gave the impression of functioning in the borderline
range consistent with his verbal IQ of 79 and a full-scale IQ of 79. Id. Dr.
Barnett’s clinical assessment was that T.L.B. did not display “difficulty with
attention or concentration during the interview,” and that he appeared
“cognitively capable of simple repetitive work tasks and some complex
tasks.” Id. at 56. Dr. Barnett did not find evidence of ADHD disorder during
the interview, as he was not “distractable . . . or hyperactive.” Id.
Between 2012 and 2015, T.L.B. occasionally saw therapists at
Valeo Behavioral Center. At the intake, he reported that he was working a
night shift stocking shelves and presented himself as having among other
things--major depressive disorder, diagnosis of ADHD, hopeless, irritable,
difficulties with sleeping, poor concentration, impaired memory, and inability
to maintain job performance. ECF# 15-14, p. 10. The interpretative

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summary noted that T.L.B. presented “well” and did not appear to “have the
difficult issues he presents.” Id. His sessions focused on improving his selftalk and reducing anger and turmoil. The records show that T.L.B. kept up
appointments for the first month or so, and then he missed or canceled
many of his appointments after that.
In April of 2015, T.L.B. went to Dr. Tietze complaining of panic
attacks, anxiety, and depression. Noting definite elements of major
depression, he was referred again to Valeo for therapy and was prescribed
citalopram. ECF# 15-14, p. 78. In July of 2015, he returned to Dr. Tietze
who noted that claimant was working in a barber shop and had not
continued therapy at Valeo after the initial visits. His medication was
changed to venlafaxine, and therapy was again discussed. Id. at 75. The
claimant told Dr. Tietze that his mood “may be a bit improved.” Id. at 74.
In March of 2016, T.L.B. was again evaluated at the Dyslexia
and Learning Differences Center in Lawrence with a consultation by the
Center’s director, Linn Suderman, LCPC, MS, Ph.D. Evaluation tests and
observations were repeated, and the reported results were that his general
cognitive ability was in the borderline range, with verbal comprehension
abilities in the average range, and ability to sustain attention and
concentration in the extremely low range. ECF# 15-14, p. 142. Director

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Suderman completed a medical statement for the claimant’s disability claim.
She described marked and extreme limitations with daily living activities and
with maintaining social function that resulted in an “extreme need for
reminders” and in being easily distracted and bored. Id. at 161-62. She also
commented, “He will give his full attention to interesting or demanding tasks
for a while, then his concentration breaks down and he becomes angry,
irritable, overwhelmed, withdraws or asks questions to defuse or minimize
the situation.” Id. at 163.
In September of 2016, T.L.B. began seeing Dr. Spethman, a
general practice physician with complaints of anxiety and irritability that
were not helped by the prescribed hydroxyzine. Dr. Spethman recorded that
the claimant was not depressed but presented as nervous and anxious. His
mood and affect were described as normal. He was prescribed Zoloft for
PTSD and anxiety with a follow-up in one month. ECF# 15-14, pp. 260-62.
In late 2017, Dr. Michael Lace, a psychologist, served as an
expert in the disability proceeding. He reviewed the record and completed a
medical source statement on the claimant’s mental ability for work-related
activities. He found marked limitations in understanding and carrying out
complex instructions and in making judgments on complex work-related
decisions. ECF# 15-14, p. 189. He found moderate limitations in the ability

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to do the same when simple instructions were involved. Id. He also opined
that claimant was “limited to simple, routine, repetitive tasks that are slowpaced with low production quotas.” Id. at 197. He was also “limited to low
stress work with few, if any, changes in the nature of tasks performed and
the location of work.” Id.
T.L.B. again returned to Valeo for therapy beginning in February
of 2018. During this stint of therapy, the APRN Kurtis Corrico completed a
mental medical source statement on the claimant. ECF# 15-14, p. 202. He
noted a diagnosis of major depressive disorder and post-traumatic stress
disorder with no side effects from medications. Id. He checked mild
limitations on ability to maintain an ordinary routine and to make simple
work-related decisions. Id. at 203. He did note a moderate limitation on the
ability to complete a workday and workweek or to keep up a consistent pace
without some disruption by his mental symptoms and the taking of
unreasonable rest periods. Id.
In May of 2018, Robert Suderman, Psy.D. completed a medical
source statement for the pending disability proceeding based on T.L.B.’s
assessments and treatment at the Dyslexia and Learning Differences Center
in Lawrence. ECF# 15-14, p. 303. He noted that T.L.B.’s mental condition
occasionally caused extreme restrictions in daily living and caused extreme

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difficulty in social functioning due to angry outbursts when feeling
misunderstood. Id. He also noted extreme limitation from psychological
symptoms in completing workday and workweek without interruptions or in
performing at a consistent pace without unreasonable rest periods. Id. at
304. He also noted extreme limitations in the ability to ask simple questions
and ability to accept instructions or to respond appropriately to supervisors’
criticism. Id. at 305.

He noted marked limitations in carrying out very short

and simple instructions. Id. at 308. He also found extreme limitations in the
claimant’s abilities to maintain attention, concentration, regular attendance,
and ordinary routine. Id.
Robert and Linn Suderman submitted for the ALJ’s consideration
a memorandum dated May 7, 2018, which disclosed their impressions of the
T.L.B.’s work situation. ECF# 15-14, pp. 311-313. They explained their
efforts and help in securing the T.L.B.’s current barbershop position and how
the shop owner has cooperated in establishing a “sheltered work
environment” to find out if T.L.B. could make it in a workplace environment
and hopefully make a “few bucks.” Id. at p. 312. With the owner’s
permission, the Sudermans reported that T.L.B. “has been uniformly late
nearly every day,” leaves work early and unexpectantly, and is regularly
absent from work even missing an entire week. Id. The shop owner said he

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would not hire T.L.B. as a salaried barber because of the “absences,
tardiness, lack of concentration, and recently dissatisfied customers.” Id. at
313. They opined that their opinion of T.L.B. possibly succeeding “in a
regular barber setting” had changed, and they no longer believed this was
possible. Id.
Between March of 2018 and August of 2019, T.L.B. visited
Valeo receiving counseling for anger, stress, and anxiety. ECF# 15-14, pp.
361-414. Medication was prescribed and taken throughout the counseling
with some reduction in his symptoms. The medication was changed at one
point due to side effects.
In September of 2019, the Commissioner’s Cooperative
Disability Investigation (“CDI”) unit on a referral from the Topeka office
investigated the claimant’s alleged disability. The CDI investigator reviewed
some of the claimant’s medical records and statements. The investigator
visited with the Inspector for the Kansas State Board of Barbering and
discussed the claimant’s completed studies and passed examinations to
receive his barber’s license.

He apparently scored 90 on the national

written exam, 96 on the state exam, and 82.75 on his practical exercise.
ECF# 15-14, p. 327. He received his license in 2013 and renewed it all but
two years, 2015 and 2017. Id. In August of 2019, the investigator spoke

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with the local barber shop owner/operator. The owner admitted that he
allows the claimant to cut hair at his barbershop as a favor to the claimant’s
brother, the owner’s best friend. The owner also said he does not charge the
claimant the normal business rate but just receives a portion of whatever
the claimant earns. Id. at 329-30. The owner commented that the claimant
was “very good with the artistic/free style” part of cutting but struggled with
“some of the more basic skills.” Id. at 330. The owner said he was “not
aware of any mental issues” but added the claimant was “lazy.” Id. The
investigator reported that the claimant was in the barber shop at the time of
this interview. The investigator’s report concluded that the claimant did not
appear to need assistance with mental activities based upon his graduation
from barbering college, his passing of the barber examinations, and the shop
owner’s failure to report issues with mental activities. Id. at 331.
In October of 2019, T.L.B. was seen for a consultative DDS
Mental Status Examination by Thomas S. Bartlett, a psychologist. The report
noted that he appeared irritable and did “not appear to take the testing
seriously and his effort is marginal.” ECF# 15-14, p. 355. While opining that
the claimant’s intellectual functioning “is clearly below average,” Dr. Bartlett
disclosed not being “sure how accurate of a picture the current results are.”
Id. at p. 357. The test results show, “general cognitive ability . . . within the

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borderline range of intellectual functioning.” Id. Because of some variability
between subtests, Dr. Bartlett urged caution in interpreting the scores and
opined that the claimant “can complete simple instructions.” Id. at 358. Dr.
Barlett followed this opinion with:
He would not be a good candidate for interacting with the public due to
his irritability. Coworkers and supervisors might struggle with his
irritable and negative attitude. I would recommend he have a payee.
His depression is likely to interfere with his ability to perform in a
consistent and ongoing manner in a full-time occupational setting.
Id. at 358-59. In the medical statement of mental limitations to do workrelated activities, Dr. Bartlett checked a marked limitation to respond
appropriately to usual work conditions and to changes in a routine work
setting with moderate limitations on interacting with others in the workplace.
Id. at 352. He further noted other impairments, “concentration, retention,
and focus are poor.” Id.
ARGUMENT AND ANALYSIS
The claimant points out that this case has been remanded three
times for the ALJs to weigh properly the medical opinions on mental
disability. The ALJ’s written decision now on appeal addressed each medical
opinion, including the most recent opinion given by the psychological
consultative examiner, Dr. Bartlett. The claimant’s argued issue on appeal is
that the ALJ afforded “some weight” to Dr. Bartlett’s opinion, rejected a

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marked limitation on the claimant’s inability to respond to usual work
situations or changes, and then failed to incorporate Dr. Bartlett’s other
noted limitations into the RFC determination without explaining their
omission from the RFC. In short, the plaintiff contends the ALJ’s decision
fails to resolve the inconsistencies between the limitations expressed by Dr.
Bartlett and the mental RFC determination.
Because this issue turns on the ALJ’s handling of Dr. Bartlett’s
opinion, the court will set out from the ALJ’s narrative discussion those
relevant paragraphs:
Lastly, in October 2019, the claimant underwent a psychological
consultative examination with Dr. Bartlett . . . . Consistent with the
claimant’s report of a depressed mood, Dr. Bartlett reported the
claimant came across as depressed and irritable, impatient, and
annoyed. Dr. Bartlett reported the claimant exhibited marginal eye
contact and social skills, but that they were not inappropriate. He
reported the claimant exhibited difficulty with two tasks that
demanded mental control. In addition, on the WAIS-IV, his general
cognitive ability, as estimated by the WAIS-IV, was in the borderline
range (FSIQ=72). His general verbal comprehension abilities were in
the borderline range (VCI=76), and his general perceptual reasoning
abilities continued to be in the low average range (PRI=73). Based on
his examination and review, Dr. Bartlett diagnosed the claimant with
ADHD predominantly inattentive presentation and persistent
depressive disorder with anxious distress . . . . Notably, Dr. Bartlett
reported the claimant displayed a wide variety of behaviors, but
reported he had only been treated with “Zoloft and one other pill” “for
about two years” . . . . He also reported activities of daily living
including the ability to drive, to perform basic computer skills, to use a
cell phone and social media, to manage his own finances, and to
perform all personal care tasks independently. In addition, he reported
helping to care for his two year old daughter. He also reported hobbies

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and interests including playing basketball, watching his daughter, and
writing music. Moreover, he reported working in a barber shop
averaging about forty-hours per month.
While these clinical findings support some mental limitations, the level
of treatment he underwent is not suggestive of him having disabling
limitations. Prior to March 2010, the claimant admitted that he had not
received any treatment for depression or ADHD . . . . Notably, the
record does not show any evidence of ADHD medication prescribed to
the claimant during the relevant period. Moreover, the record shows
that he has not required any inpatient care because of mental health
crisis. Nor has he exhibited any significant symptoms regularly such as
panic attacks, suicidal ideations with plan, or psychosis. One would
expect objective abnormalities in a least some of these areas if the
claimant were truly experiencing anxiety or panic.
....
As noted above, the claimant was most recently evaluated by a
psychological consultative examiner in October 2019 . . . . Based on
his evaluation and review of the record, Dr. Bartlett opined the
claimant had moderate limitations in understanding, remembering,
carrying out, and making simple judgment on simple instructions. He
further opined the claimant had marked limitation in these areas for
complex instructions and work-related decisions. He also opined the
claimant had mostly moderate limitations in his ability to interact with
others, but that he had marked limitations in his ability to respond
appropriately to usual work situations and to changes in routine. Dr.
Bartlett’s opinion is afforded some weight. The undersigned notes that
Dr. Bartlett opinion that the claimant can complete simple instructions
is generally consistent with the objective evidence of record, including
Dr. Bartlett’s own evaluation and test results, which indicate the
claimant is generally functioning in the borderline range. His opinion,
and the test results, are also consistent with the claimant’s ability to
perform a range of daily activities independently. However, his marked
limitation in responding to usual work situations and to changes in
work settings is not completely supported by the record. For example,
he based some of his limitations due to a “negative attitude”, not
clinical findings and also indicated that the testing may not have been
fully reliable. While there are reports by the claimant’s employer

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through Dr. Suderman’s observations that the claimant is routinely
late for work and has had some clients not return due to poor haircuts,
the fact remains that the claimant continues to work as a barber for
approximately five hours per day, five days per week (See Exhibit 44F
and hearing testimony). Moreover, the CDI Investigative report shows
that the claimant has been able to maintain his license, and perform
skilled artistic designs (See 45F/15-22).
....
In summary, the claimant’s allegations of total disability are out of
proportion with the medical and other evidence of record.
Nevertheless, the undersigned finds the claimant’s impairments
require a reduction of the residual functional capacity. The
undersigned has determined the claimant’s residual functional capacity
based on the entire record, including the objective medical findings in
the record, the clinical signs and findings on examination and the
claimant’s partially consistent testimony. Weighing all relevant factors,
the undersigned finds that claimant’s subjective complaints did not
warrant any additional limitations beyond those established in the
residual functional capacity previously outlined in this decision.
ECF# 15-9, pp. 19-20, 23-24.
In assessing a claimant’s RFC, the ALJ is to consider all medical
opinions of record and make an RFC determination based on the record as a
whole. Paulsen v. Colvin, 665 Fed. Appx. 660, 663-64 (10th Cir. Nov. 1,
2016). Under SSR-96-8p, “[t]he RFC assessment is a function-by-function
assessment based upon all of the relevant evidence of an individual’s ability
to do work-related activity.” SSR 96-8P, 1996 WL 374184, at *3 (July 2,
1996). Requirements for the RFC determination include:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical

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facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations). In assessing RFC, the adjudicator must
discuss the individual's ability to perform sustained work activities in
an ordinary work setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
SSR 96-8P, 1996 WL 374184, at *7 (footnote omitted). In reviewing the
ALJ’s evaluation of the medical evidence, it is enough if the court can follow
the ALJ’s reasoning and “can determine that correct legal standards have
been applied.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir.
2012). The court must rely on its “common sense” and not “insist on
technical perfection” in the ALJ’s decision even though a more detailed
explanation would make judicial review “easier.” Id.
The plaintiff concedes the ALJ’s decision “summarized much of
Dr. Bartlett’s medical opinion.” ECF# 17, p. 12. He understands the ALJ to
have accepted the opinion in finding the plaintiff could “complete simple
instructions” and to have rejected the opinion in not finding a marked
limitation in the plaintiff’s ability for responding to routine work situations or
to changes in work environment. The plaintiff, however, faults the ALJ in
simply giving “some weight” to Dr. Bartlett’s opinion without addressing how
the RFC accounts for Dr. Bartlett’s other opinions, specifically:

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moderate limitation on the plaintiff’s ability to understand and remember
simple instructions and to make judgments on simple work-related
decisions; ECF# 15-14, p. 351; and 2) the claimant’s “depression is likely to
interfere with his ability to perform in a consistent and ongoing manner in a
full-time occupational setting,” id. at 356. Finally, the plaintiff contends the
ALJ’s failure to incorporate Dr. Bartlett’s other limitations caused harm as
the vocational expert testified to the unavailability of work if the claimant
had difficulty with keeping up punctuality, attending work and missing less
than two days a month, or in consistently understanding, remembering, and
carrying out decisions based on simple instructions.
The court does not find the plaintiff’s arguments persuasive.
Instead, the court finds it can track from the ALJ’s decision how he
reasonably afforded “some weight” to Dr. Bartlett’s opinion and how he
accounted for Dr. Bartlett’s other limitations at issue here consistent with the
governing law. The ALJ gave weight to Dr. Bartlett’s opinion that the plaintiff
can complete simple instructions as being “generally consistent with
objective evidence of record” and with Dr. Bartlett’s evaluation results which
showed the plaintiff to function generally in the borderline range. ECF# 159, p. 23. Earlier in the ALJ’s decision, he summarized Dr. Bartlett’s clinical
findings and then observed that the “level of treatment” received was not

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“suggestive” of disabling limitations by noting the lack of ongoing care,
limited prescribed medications, no incidents of inpatient care, and limited
significant symptoms. Id. at 20. The ALJ also found the evidence of the
plaintiff’s range of daily activities to be consistent with Dr. Bartlett’s opinion
that the claimant could complete simple instructions. Id. at 23. Earlier in his
decision, the ALJ summarized what Dr. Bartlett had recorded as plaintiff’s
range of daily activities to include driving, basic computer skills, using cell
phone and social media, managing his own finances, maintaining personal
care tasks, helping to care for his two-year-old daughter, working parttime
in the barber shop, and keeping up his hobbies of playing basketball and
writing music. Id. at 20.
The court disagrees with the plaintiff that this case is like Sowers
v. Astrue, 2013 WL 172866 (D. Kan. Jan. 16, 2013). The only medical
evidence of RFC there came from one medical opinion which the ALJ gave
“some” weight but, “in fact rejected all of his opinions.” Id. at *4. That did
not happen here. The plaintiff does not take issue with ALJ’s discussion and
weighing of the numerous medical opinions here. Nor does the court agree
that this case is one where the ALJ’s narrative discussion of the RFC
assessment fails to consider and resolve inconsistencies or conflicts in the
medical record. See Booker v. Berryhill, 2018 WL 531188, at *4 (D. Kan.

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Oct. 26, 2018). The ALJ repeatedly evaluates the medical evidence and
clinical findings against the level of medical care and treatment prescribed
and received, the plaintiff’s living activities, and the lack of objective
abnormalities. See, e.g., ECF# 15-9, pp. 17-18, 20-24. Moreover, the ALJ
expressly found that his RFC determination had “accommodated the
claimant’s moderate difficulties in understanding, remembering, or applying
information, interacting with others, maintaining concentration, persistence,
or maintaining pace, and adapting or managing himself by limiting him
accordingly.” Id. at 20-21.
The ALJ provided a sufficient explanation for not giving weight to
all of Dr. Bartlett’s opined limitations. He said the record did not support the
marked limitation for responding to typical work situations or to work-setting
changes. The ALJ also noted that “some” limitations found in Dr. Bartlett’s
opinion were not based on “clinical findings” but on a “negative attitude.” Id.
at 23. The ALJ also noted that Dr. Bartlett had acknowledged his testing of
the plaintiff may not be “fully reliable.” Id. Dr. Bartlett in his report noted
that the plaintiff appeared not only “irritable” but also as not taking “the
testing seriously” with “marginal” effort. ECF# 15-14, p. 357. Thus, Dr.
Bartlett wrote he was unsure “how accurate of a picture the current results
are.” Id. As far as the expressed limitations on the plaintiff’s ability to

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perform work in a timely and consistent manner, the ALJ observed:
While there are reports by the claimant’s employer through Dr.
Suderman’s observations that the claimant is routinely late for work
and has had some clients not return due to poor haircuts, the fact
remains that the claimant continues to work as a barber for
approximately five hours per day, five days per week (See Exhibit 445
and hearing testimony). Moreover, the CDI Investigative report shows
that the claimant has been able to maintain his license, and perform
skilled artistic designs . . . .
ECF# 15-9, pp. 23-24. Thus, the ALJ’s decision can be read as affording only
some weight to Dr. Bartlett’s opinion in that the plaintiff’s other nonexertional limitations such as, the ability to perform in a consistent and
ongoing manner, was contradicted by objective evidence of the plaintiff’s
current level of vocational activities.
The court agrees with the Commissioner that the ALJ’s RFC
determination can be read as incorporating moderate limitations on the
ability to understand and remember simple instructions and making workrelated decisions. The ALJ found the plaintiff was “limited to simple, routine,
repetitive tasks that have limited stressors, such as slow-paced work, do not
require multi-tasking, few changes in task performed and locations of work.”
ECF# 15-15, p. 73; #15-9, p. 16. The vocational expert understood the RFC
as applying to a range of unskilled jobs. ECF# 15-15, p. 73. It is not
necessary that the ALJ repeat the moderate limitations in the RFC, because
it is enough to incorporate “these limitations by stating how the claimant

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was limited in the ability to perform work-related activities.” Smith v. Colvin,
821 F.3d 1264, 1269 (10th Cir. 2016). The Tenth Circuit in Smith held:
This approach is acceptable in our circuit, for we have held in a
published opinion that an administrative law judge can account for
moderate limitations by limiting the claimant to particular kinds of
work activity. See Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir.2015)
(“[T]he [administrative law judge] accounted for [the claimant's]
moderate concentration, persistence, and pace problems in his
[assessment of residual functional capacity] by limiting [the claimant]
to unskilled work.”). In Lee v. Colvin, [631 Fed. Appx. 538 (10th
Cir.2015) (unpublished)], we applied this approach, concluding that
the administrative law judge did not err by incorporating the moderate
limitations in restricting the claimant in jobs involving complex tasks,
close supervision, or meaningful interaction with supervisors or peers.
Based on the reasoning in Lee v. Colvin, we reject Ms. Smith's
argument that the administrative law judge should have assessed
additional nonexertional impairments.
821 F.3d at 1269. The court is satisfied that the RFC determination here
adequately incorporates moderate limitations by spelling out that the simple
work was limited to routine and repetitive work that involved limited
stressors, that was slow-paced, that had no multi-tasking, and that had few
if any changes in tasks performed or in locations for work.
As the court discussed above, the ALJ’s decision can be read to
explain not relying on those medical opinions limiting the plaintiff’s ability to
perform in a consistent and ongoing manner. First, the ALJ noted that the
Dr. Bartlett had attributed “some limitations” to a negative attitude and not
to clinical findings. Second, Dr. Bartlett’s report conceded he had questions

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about the reliability of his testing results because of the plaintiff’s marginal
efforts. This point necessarily reflects upon Dr. Bartlett’s choice to opine
vaguely that the plaintiff’s “depression is likely to interfere.” ECF# 15-14, p.
359. Third, the ALJ acknowledged other evidence from the plaintiff’s
employer through Dr. Suderman pointing to the plaintiff being routinely late
and giving poor haircuts. The relevance of this evidence is that it coincides
with Dr. Bartlett’s opinion that “depression is likely to interfere with . . .
ability to perform in a consistent and ongoing manner in a full-time
occupational setting.” ECF# 15-14, p. 359. The ALJ found that despite this
evidence, and apparently the opinions consistent with it, “the fact remains
that the claimant continues to work as a barber for approximately five hours
per day, five days per week” and “has been able to maintain his license, and
perform skilled artistic designs.” ECF# 15-9, pp. 23-24. The ALJ earlier
observed in the same vein, “[w]hile the claimant’s employer reported
attendance and punctuality issues, the record shows that the claimant has
remained employed for a significant amount of time despite these issues.”
Id. at 21. The ALJ may appropriately rely on the plaintiff’s ability to work
part-time at skilled labor as evidence that his non-exertional limitations do
not result in disabling symptoms for unskilled work. See 20 C.F.R. §
404.1571 (“Even if the work you have done was not substantial gainful

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activity, it may show that you are able to do more work than you actually
did.”); Franklin v. Chater, 1996 WL 731591, at *3 (10th Cir. Dec. 20, 1996)
(“20 C.F.R. § 404.1571 (any work performed during a period of claimed
disability may demonstrate an ability to perform substantial gainful
activity)”). Finally, the court recognizes some merit to the Commissioner’s
argument that Dr. Bartlett’s final opinion about the claimant’s depression
being “likely to interfere” fails to express a limitation within the workplace
context. Because of this deficiency, the ALJ would not be required to
consider that opinion in formulating the RFC. See Paulsen v. Colvin, 665 Fed.
Appx. 660, 666 (10th Cir. Nov. 1, 2016).
The court’s scope of review is limited to the issues properly
raised and briefed. See Allman v. Colvin, 1329 (10th Cir. 2016). The failure
to present arguments to this court waives review. Id. The court need only
“consider and discuss . . . those . . . contentions that have been adequately
briefed for . . . review.” Keyes-Zachary v. Astrue, 695 F.3d at 1161 (citation
omitted). The plaintiff’s sole challenge on appeal is with the ALJ’s
consideration of the consultative medical opinion of Dr. Bartlett. Finding no
reversible error in that regard, the court affirms.
IT IS THEREFORE ORDERED that the Commissioner’s final
decision that the claimant was not disabled from November 8, 2008, through

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December 19, 2019, is affirmed.
Dated this 17th day of November, 2021, Topeka, Kansas.

_/s Sam A. Crow____________________________
Sam A. Crow, U.S. District Senior Judge

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