Law v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: 1) Plf's MOTION for Summary Judgment DE# 10 be and the same hereby is DENIED; 2) Dft's MOTION for Summary Judgment DE# 11 be, and the same hereby is GRANTED. Signed by Judge Joseph M. Hood on 11/6/13.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
DONALD RAY LAW,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil Case No.
0:13-cv-50-JMH
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court upon cross-motions for
Summary Judgment [D.E. 10, 11] on Plaintiff’s appeal of the
Commissioner’s

denial

of

his

application

for

Social

Security

Disability Insurance and Supplemental Security Insurance. [Tr.
66-83].1

The

Court,

having

reviewed

the

record

and

being

otherwise sufficiently advised, will deny Plaintiff’s motion and
grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The

Administrative

Law

Judge

("ALJ"),

in

determining

disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.

1

These are not traditional Rule 56 motions for summary
judgment. Rather, it is a procedural device by which the parties
bring the administrative record before the Court.

2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
3.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
other factors.
4.
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant's residual functional capacity
and the physical and mental demands of the claimant's
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work.
If he cannot, the claimant is
disabled.
Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).

"The

burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled." Id.

"If

the analysis reaches the fifth step without a finding that the
claimant

is

Secretary."

not

disabled,

the

burden

transfers

to

the

Id.

In the instant matter, the ALJ determined that Plaintiff
did

not

engage

in

substantial

gainful

activity

during

the

relevant time period under step one. [Tr. 71]. Under step two,
the

ALJ

found

that

Plaintiff’s
2

medically

determinable

impairments of degenerative disc disease of the lumbar spine,
pain disorder, and shoulder arthritis were “severe” as defined
by the agency’s regulations. [Tr. 72]; 20 CFR §§ 404.1520(c),
416.920(c). The ALJ further found that Plaintiff’s impairments
of Hepatitis C, Gastroesophageal Reflux Disease, and right sided
diverticulitis were “non-severe” impairments. [Tr. 72].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr. 7274].

After

further

review

of

the

entire

record,

the

ALJ

concluded at step four that Plaintiff had a residual functional
capacity (“RFC”) to perform less than the full range of light
work,

but

that

he

could

frequently

climb

ramps

or

stairs,

occasionally climb ladders, ropes, or scaffolds, occasionally
stoop,

kneel,

bilaterally.

crouch,

[Tr.

74].

or

crawl,

Additionally,

and

frequently

the

ALJ

found

reach
that

Plaintiff should avoid concentrated exposure to vibration, the
operational

controls

of

moving

machinery,

and

unprotected

heights. [Tr. 74]. Furthermore, Plaintiff would be limited to
simple, routine tasks with only occasional changes in the work
setting, with no interaction with the public and only occasional
interaction

with

co-workers,

including

74].

3

no

tandem

tasks.

[Tr.

The ALJ found that Plaintiff was unable to perform any of
his past relevant work. [Tr. 78]. However, there were jobs in
the relevant national economy that Plaintiff could perform. [Tr.
78]. Thus, the ALJ determined that Plaintiff is not disabled
under the Social Security Act. [Tr. 79].
In this appeal, Plaintiff argues that the ALJ failed to
consider all of Plaintiffs severe, non-severe, exertional, and
non-exertional impairments and that the ALJ failed to accurately
describe the claimant when presenting the hypothetical questions
to the vocational expert.
II. Standard of Review
In

reviewing

the

ALJ's

decision

to

deny

disability

benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted).

Instead, judicial review of the

ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
4

reasonable

mind

conclusion."

might

accept

as

adequate

to

support

a

Cutlip, 25 F.3d at 286 (citations omitted).

III. Factual and Procedural Background
Plaintiff is currently forty-nine years of age [Tr. 13],
with a GED. [Tr. 16]. Plaintiff has past work experience as a
forklift

operator,

assistant.
disability

[Tr.

laborer,

185].

benefits

for

manufacturer,

Plaintiff
a

closed

was

and

previously

period

of

welder’s
awarded

disability

from

August 30, 2004 to May 8, 2006. [Tr. 69]. Plaintiff has now
filed

for

a

period

of

disability

and

disability

insurance

benefits under Title II, and for supplemental security income
(SSI)

under

September
initially

3,
and

Title

XVI,

2008.

[Tr.

upon

alleging
69].

The

disability
claims

reconsideration.

[Tr.

beginning

were

denied

69].

on
both

Plaintiff

requested a hearing with the ALJ, which took place on May 16,
2012. [Tr. 69]. The ALJ issued an unfavorable decision denying
disability insurance benefits and SSI on May 24, 2012. [Tr. 79].
According to Plaintiff, the pain in his lower back, neck,
and shoulder is constant. [Tr. 228]. Plaintiff fell off a moving
truck in 1990, sustaining injuries to his head, neck, and back.
[Tr. 501]. Plaintiff treats the pain with Lortab and Valium, as
well as alternating ice and heat. [Tr. 229; 23-24]. Plaintiff
also suffers from diverticulitis, which he treats with over-thecounter medications, such as Imodium. [Tr. 24]. Additionally,
5

Plaintiff complains of problems concentrating and remembering
[Tr. 20, 31], picking up small items due to numbness in his
fingers [Tr. 26], and chest pains [Tr. 30-31]. Plaintiff also
takes amitriptyline, ibuprofen, nitroglycerin, and Effexor. [Tr.
27, 186].
An MRI of Plaintiff on February 28, 2008 revealed a disc
bulge at the L4-L5 level, which causes a moderate degree of
central canal stenosis, and minimal disc bulging at the L5-S1
level, which causes a mild degree of central canal stenosis.
[Tr.

273].

After

this

diagnosis,

Plaintiff

received

physical

therapy for spinal stenosis of the lumbar region. [Tr. 260].
Plaintiff made recurring trips to St. Claire Regional Medical
Center for various problems. On March 16, 2008, he complained of
back pain [Tr. 275]; on April 11, 2008 he was diagnosed with
myocardial
October

infraction

13,

2008

and

chronic

Plaintiff

was

back

pain

treated

[Tr.
for

286];

on

right-sided

diverticulosis, internal hemorrhoids, and abdominal pain [Tr.
326]; on October 27, 2008 he was treated for back pain [Tr.
360]; on November 3, 2008 he was treated for back pain [Tr.
365];

on

September

1,

2009

he

was

treated

for

chest

pain,

chronic sinusitis, chronic low back pain, and anxiety [Tr. 374];
on December 11, 2009 he was treated for headaches [Tr. 431]; and
on March 3, 2010 he was treated for degenerative disc disease
[Tr. 445].
6

Plaintiff also made frequent trips to the Family Medicine
Center

of

St.

Claire

Medical

where

he

was

treated

for

such

problems as chest pain, hyperlipidemia, chronic pain syndrome
[Tr.

449],

degenerative

disc

disease

of

the

lumbar

region,

degeneration in the cervical disc [Tr. 452] and depression. [Tr.
458]. Plaintiff was treated by the Olive Hill Family Care Center
for chronic back pain, hyperlipidemia, MRSA, Gastroesophageal
reflux disease, and anxiety. [Tr. 552].
Plaintiff

was

analyzed

by

Dr.

Naushad

Haziq

for

a

Department of Disability Determination on June 2, 2010. [Tr.
501]. Dr. Haziq found that there was mild pain, tenderness and
movements of the cervical spine. [Tr. 506]. The right shoulder
exhibited

pain

and

tenderness

and

moderate

limitation

of

movements. Id. Examination of the lumbar region revealed pain
and tenderness and mild limitation of movement. Id. Dr. Haziq
also

found

that

Plaintiff’s

left

leg

was

three

centimeters

longer than the right. Id. Dr. Haziq analyzed Plaintiff a second
time on August 10, 2010. [Tr. 510]. At this time, Dr. Haziq
noted

that

antalgic.

Plaintiff’s

[Tr.

512].

gait

There

appeared

was

pain

slow,
and

cautious,

tenderness

in

and
the

cervical spine, but no limitation in range of motion. [Tr. 513].
There was pain, tenderness, and crepitations in the shoulders,
with moderate limitations in the range of motion, the right
being worse than the left. [Tr. 513]. Plaintiff also exhibited
7

pain and tenderness in the lumbar back with mild limitation of
movements. [Tr. 514]. Based on this physical assessment, Dr.
Haziq

found

that

Plaintiff

had

possible

degenerative

disc

disease and possible arthritis in his shoulders. [Tr. 514].
Plaintiff saw Dr. Geraldo C. Lima on February 28, 2011 for
a

disability

evaluation.

[Tr.

518].

Dr.

Lima

found

that

Plaintiff was able to understand instructions, but would have
trouble

recalling

them.

[Tr.

521].

Further,

he

believed

Plaintiff could perform tasks in a normal amount of time and
would work well with supervisors and co-workers. Id. However,
his ability to manage stressors in the workplace was reduced.
Id.
Dr. James C. Owen performed a disability examination on
February 15, 2012. [Tr. 575]. Dr. Owen found that Plaintiff had
persistent low back pain with known old compression fractures
and radicular nonverifiable symptomatology, persistent neck pain
with

diminished

range

of

motion

and

nonverifiable

radicular

symptomatology, and numbness of the feet. [Tr. 577]. Based on
this

assessment,

moderate-to-severe

Dr.

Owen

difficulty

found

that

lifting,

Plaintiff
handling,

would
and

have

carrying

objects. Id.
Vocational

expert

Gina

Baldwin

testified

at

the

hearing

before the ALJ. [Tr. 33]. Ms. Baldwin testified that a person
with an RFC equivalent to the ALJ’s RFC finding for Plaintiff
8

would not be able to return to Plaintiff’s past work. [Tr. 38].
However, Ms. Baldwin determined that there were jobs in the
relevant economy that someone with that RFC assessment could
perform. [Tr. 38-39]. Ms. Baldwin found there would be no jobs
in the national economy if an individual was limited to lightlevel

work,

standing

and

walking

less

than

two

hours

in

an

eight-hour day, sitting about two hours in an eight-hour day,
could never climb, could occasionally balance, scoop, crouch,
kneel, and crawl, could only use his right hand, and should
avoid heights and moving machinery. [Tr. 39-40].
Plaintiff is able to drive [Tr. 14], walk fifteen minutes
at a time [Tr. 25], can sit twenty minutes at a time [Tr. 26],
watches television [Tr. 29], is able to perform his own personal
hygiene [Tr. 29], no longer shops on his own [Tr. 231, 234], and
is able to perform some household chores, although it takes a
long time. [Tr. 231].
IV. Analysis
I. The ALJ did not err by failing to discuss obesity
and depression as impairments of Plaintiff.
Plaintiff contends that the ALJ failed to consider all of
the impairments of Plaintiff because the ALJ did not discuss
obesity

or

depression

in

her

opinion

denying

benefits.

When

faced with a similar argument in the past, this Court stated:
“There is no diagnosis of obesity in the record, nor has any
9

medical

source,

treating

or

otherwise,

suggested

functional

limitation as a result of obesity. Therefore, the Court finds
that the ALJ did not err in this regard.” Land v. Astrue, No.
12-1-HRW, 2013 WL 1145888 at *5 (E.D. Ky. Feb. 22, 2013); see
also

Jones

v.

Comm’r

of

Soc.

Sec.,

No.

11-14430,

2012

WL

6757248, at *8 (E.D. Mich. Dec. 17, 2012) (citations omitted)
(“[T]he ALJ was not obligated to discuss Plaintiff’s obesity
because

neither

Plaintiff

nor

the

medical

evidence

suggested

that her obesity was a significant impairment.”).
This is the first time Plaintiff has claimed that he is
disabled due to obesity. This was not an issue addressed at the
hearing [Tr. 6-42], and the Court can find no mention of obesity
being

a

disabling

impairment

in

the

medical

records.

Furthermore, Plaintiff has cited to nothing in the record where
he asserts he is obese or where someone has indicated he cannot
perform a job function due to obesity.
Plaintiff does point to several instances in the record
where

his

weight

was

mentioned

in

medical

examinations.

Plaintiff was noted as “well developed” and “obese” on at least
four different occasions. [Tr. 336, 455, 460, 469]. Plaintiff is
also correct in his assertion that Plaintiff’s weight was over
250 pounds at several medical visits. E.g., [Tr. 450]. However,
similar arguments have been rejected by the Sixth Circuit. In
Cranfield v. Commissioner of Social Security, the plaintiff
10

assert[ed] that because her doctors’ reports indicated
her obesity, the ALJ was required to consider it as a
possible impairment. The problem with this argument is
the ALJ never received evidence suggesting [plaintiff]
or her doctors regarded her weight as an impairment.
In fact, [plaintiff] provided no evidence that obesity
affected her ability to work.
79 F. App’x 852, 857-58 (6th Cir. 2003).
Similarly,
obesity

was

in

an

this

case,

impairment

that

it

was

kept

never

Plaintiff

suggested
from

that

working.

Rather, Plaintiff now contends the ALJ should have considered
obesity an impairment merely because he stated his weight was
250 pounds when he testified and because similar weights were
recorded

in

his

medical

history.

This

is

the

same

argument

rejected by the Sixth Circuit. Accordingly, the ALJ did not err
by failing to discuss Plaintiff’s obesity.
Plaintiff’s assertion that the ALJ failed to even discuss
his claimed impairment of depression is simply incorrect. The
ALJ

explicitly

found

that

“[t]he

severity

of

the

claimant’s

mental impairment does not meet or medically equal the criteria
of listing 12.04.” [Tr. 73]. Listing 12.04 applies to “affective
disorders” which are defined as “a disturbance of mood . . .
generally involv[ing] either depression or elation.” 20 CFR pt.
404, subpt. P, app. 1. The ALJ properly conducted an analysis of
Plaintiff’s medical record in assessing whether paragraph B or C
of 20 CFR Part 404 Appendix 1 § 12.04 were met. See id. § 12.04
(“The required level of severity for these disorders is met when
11

the requirements in both A and B are satisfied, or when the
requirements of C are satisfied.”).
Thus, as Plaintiff challenges the ALJ’s determination as to
his

depression,

determination

the

that

Court

must

Plaintiff’s

determine

depression

if

was

the

ALJ’s

non-severe

is

supported by substantial evidence. See Long v. Apfel, 1 F. App’x
326, 333 (6th Cir. 2001) (“[W]e hold that substantial evidence
supports the ALJ’s finding that Long does not suffer a severe
impairment

within

regulations.”).

To

the
find

meaning
that

of

the

Plaintiff’s

Social

depression

Security
met

the

requirements of Paragraph B, the ALJ was required to find that
Plaintiff’s

depression

met

two

of

the

following:

marked

restriction of activities of daily living; marked difficulties
in

social

functioning;

concentration,

marked

persistence,

or

difficulties
pace;

or

in

repeated

maintaining
episodes

of

decompensation, each of extended duration. See 20 CFR pt. 404,
subpt. P, app. 1 § 12.04(B). A marked limitation is one that is
“more than moderate but less than extreme.” Id. § 12.00(C). “A
marked limitation may arise when several activities or functions
are impaired, or even when only one is impaired, as long as the
degree of limitation is such as to interfere seriously with your
ability to function independently, appropriately, effectively,
and on a sustained basis.” Id.

12

The ALJ’s finding that Plaintiff did not have a marked
restriction

of

daily

living

is

supported

by

substantial

evidence. Plaintiff stated that he was able to do some household
chores, albeit at a slow pace [Tr. 231], he is able to attend to
most of his own personal needs [Tr. 234, 239], makes his own
meals [Tr. 234, 240], can go shopping with assistance [Tr. 234,
241], and is able to drive a car. [Tr. 241]. Therefore, the
record presents “relevant evidence as a reasonable mind might
accept

as

adequate

Plaintiff

suffered

activities.

to
a

support”
mild

the

ALJ’s

limitation

in

conclusion

that

performing

daily

Cutlip, 25 F.3d at 286 (citations omitted).

The ALJ’s determination that Plaintiff did not have marked
difficulties

maintaining

social

functioning

is

supported

by

substantial evidence. Plaintiff claims that he “hangs out and
talks” two to three times a week. [Tr. 242]. Dr. Geraldo Lima, a
state-appointed examining psychiatrist found that Plaintiff was
“socially

appropriate

and

is

likely

to

do

well

in

social

contexts.” [Tr. 521]. Dr. Ed Ross, a state agency psychological
consultant,
“maintaining

found
social

only

mild

limitations

functioning.”

[Tr.

for

532].

Plaintiff
Therefore,

in
the

record provides substantial evidence for the ALJ’s finding that
Plaintiff did not have marked difficulties in maintaining social
functioning.

13

The ALJ’s finding that Plaintiff has moderate difficulties
with regard to concentration, persistence, or pace is supported
by

substantial

evidence.

Dr.

Ross

found

that

Plaintiff’s

difficulties in maintaining concentration, persistence, or pace
presented moderate limitations. [Tr. 532]. Dr. Lima found that
Plaintiff was “able to concentrate well and is likely to be able
to

complete

Plaintiff

tasks

in

reported

a

normal

that

amount

sometimes

of

he

time.”

cannot

[Tr.

520].

remember

what

happened “15 minutes ago” [Tr. 235], puts his medication out so
he remembers to take them [Tr. 240], and sometimes needs to be
reminded

to

evidence,

a

shave

and

reasonable

shower.
mind

[Tr.

might

240].

accept

Based

that

upon

Plaintiff

this
had

moderate limitations with regard to concentration, persistence,
or pace.
The ALJ’s determination that Plaintiff had no episodes of
decompensation of extended duration is supported by substantial
evidence.

“Episodes

of

decompensation

are

exacerbations

or

temporary increases in symptoms or signs accompanied by a loss
of

adaptive

performing

functioning,
activities

relationships,

or

of

as

manifested

daily

maintaining

living,

by

difficulties

maintaining

concentration,

in

social

persistence,

or

pace.” 20 CFR pt. 404, subpt. P, app. 1 § 12.00(C)(4). Plaintiff
points to no episodes of decompensation in the record, and the
Court can find no evidence of an episode of decompensation.
14

Furthermore, Dr. Ross found that Plaintiff had no episodes of
decompensation, each of extended duration. [Tr. 532]. Thus, the
record supports, by substantial evidence, the ALJ’s finding that
Plaintiff did not meet any of the criteria within Paragraph B.
See 20 CFR pt. 405, subpt. P, app. 1 § 12.04(B).
Alternatively, the ALJ could have found that Plaintiff had
a:
[m]edically documented history of a chronic affective
disorder of at least 2 years’ duration that has caused
more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently
attenuated by medication or psychological support, and
one of the following: 1. Repeated episodes of
decompensation, each of extended duration; or 2. A
residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to
function
outside
a
highly
supportive
living
arrangement, with an indication of continued need for
such an arrangement.
20 CFR pt. 404, subpt. P, app. 1 § 12.04(C). The record simply
fails

to

provide

evidence

that

Plaintiff

can

meet

these

conditions.
While Plaintiff made frequent trips to the emergency room,
and to consult with physicians, as is documented above, the
record

does

not

contain

a

medically

documented

history

of

depression of at least 2 years duration. In fact, on March 16,
2008, at an emergency room visit, Plaintiff was characterized as
“no . . . depression.” [Tr. 279]. As discussed previously, the
15

record does not support a finding that Plaintiff had repeated
episodes of decompensation, each of extended duration. Likewise,
there is no evidence that a change in Plaintiff’s environment
would cause Plaintiff to decompensate due to depression. Rather,
Dr. Ed Ross, a state agency psychologist found that Plaintiff
could “adapt to gradual change and appreciate work hazards on
the job described.” [Tr. 538]. Plaintiff has not shown a need
for a highly supportive living environment as he testified at
the hearing that “I actually don’t have a home right now. I
[sic] kind of homeless, and I just skip around right now. . . .
Right

now,

I’m

Therefore,

with

there

is

my

ex-wife

evidence

and

that

my

daughter.”

negates

a

[Tr

13].

finding

that

Plaintiff requires a highly supportive living arrangement and
the

ALJ’s

determination

that

Paragraph

C

does

not

apply

is

supported by substantial evidence. See 20 CFR pt. 404, subpt. P,
app. 1 § 12.04(C).
II. The ALJ accurately described the Plaintiff when
posing

hypothetical

questions

to

the

vocational

expert.
Plaintiff argues that the case should be remanded because
the ALJ failed to present the Vocational Expert with an accurate
hypothetical question. Plaintiff bases this argument on the fact
that the ALJ did not include Dr. Geraldo Lima’s restriction that
Plaintiff would have difficulty recalling instructions. See [Tr.
16

521]. When asking a hypothetical question, the ALJ “is required
to incorporate only those limitations accepted as credible by
the finder of fact.” Casey v. Sec. of Health & Human Servs., 987
F.2d 1230, 1235 (6th Cir. 1993) (citations omitted). The ALJ
specifically noted Dr. Lima’s finding that Plaintiff was “able
to

understand

simple

instructions

but

has

difficulty

in

recalling information.” [Tr. 76]. In not including Dr. Lima’s
conclusion

in

her

RFC

finding,

the

ALJ

stated

that

“the

undersigned is persuaded that the foregoing limitations contain
all

inferences

regarding

the

claimant’s

impairments

and

the

degree of severity thereof that are raised by the objective
medical evidence of record.” [Tr. 77]. Thus, while the ALJ did
not explicitly state that she found Dr. Lima’s finding that
Plaintiff

had

difficulty

understanding

simple

instructions

uncredible, from her discussion of Dr. Lima’s report and her
statement

that

she

reviewed

the

record

as

a

whole,

the

ALJ

likely considered the statement and found it unsupported by the
medical evidence. See Black v. Apfel, 143 F.3d 383, 386 (8th
Cir. 1998) (“Given the ALJ's specific references to the medical
findings

set

forth

in

Dr.

Guntharp's

letter,

it

is

highly

unlikely that the ALJ did not consider and reject Dr. Guntharp's
opinion

that

Black

was

disabled

scoliosis.”).

17

as

a

result

of

her

extreme

Furthermore,

the

ALJ

explicitly

found

“the

claimants

concentration, persistence or pace, moderately limited.” [Tr.
73]. This finding was based upon the report of the state agency
psychological
examination

consultants.

from

another

Id.

The

state

ALJ

agency

also

relied

psychologist

who

on

an

found

that “the claimant can understand and recall simple and some
detailed
Therefore,

work
the

procedures
ALJ

did

and
not

instructions.”
err

in

posing

[Tr.
the

77;

538].

hypothetical

question to the vocational expert because she included all of
the limitations that she found credible.
V. Conclusion
Accordingly, based on the foregoing, IT IS ORDERED:
(1)

that Plaintiff’s Motion for Summary Judgment [D.E. 10]

be, and the same hereby is, DENIED;
(2)

that Defendant’s Motion for Summary Judgment [D.E. 11]

be, and the same hereby is, GRANTED.
This the 6th day of November, 2013.

18