Anchondo v. Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen denying 18 Motion to Remand to Agency. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

PATRICIA ANCHONDO,
Plaintiff,
v.

CIV 15-0893 KBM

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reverse and
Remand for Rehearing with Supporting Memorandum (Doc. 18), filed June 20, 2016.
Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties
have consented to me serving as the presiding judge and entering final judgment.
Doc. 9. Having reviewed the parties’ submissions, the relevant law, and the relevant
portions of the Administrative Record, the Court will deny the Motion.
I.

Procedural History
Plaintiff protectively filed applications with the Social Security Administration for

disability insurance benefits and supplemental security income under Titles II and XVI of
the Social Security Act on August 11, 2011. AR at 81-84, 177-89.1 Plaintiff alleged a
disability onset date of December 21, 2008, due to “back pain; arthritis on right leg;
sleep apnea; breathing problems; high cholesterol; high blood pressure; acid reflux
disease; [and] thyroid problems.” AR at 85. Prior to claiming disability, Plaintiff worked
1

Documents 13-1 through 13-14 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.

as a cashier at a gas station, a laundry attendant, a cashier at a grocery store, a cashier
checker at a Family Dollar,2 and again as a laundry attendant. AR at 68-73. Plaintiff
testified that she stopped working at this final position because she could not walk
anymore or do any lifting due to back pain. AR at 50-51.
The agency denied Plaintiff’s claims initially and upon reconsideration, and she
requested a hearing. AR at 81-108, 132-33. After a de novo hearing, Administrative Law
Judge Myriam C. Fernandez Rice (“the ALJ”)3 issued an unfavorable decision on March
28, 2014. AR at 20-36. Plaintiff submitted a Request for Review of the ALJ’s Decision to
the Appeals Council, which the Council declined on August 11, 2015. AR at 1-13, 15-16.
As such, the ALJ’s decision became the final decision of the Commissioner. Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court has jurisdiction to review the
decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that she is unable to engage
in “any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Commissioner must use a five-step sequential evaluation process to determine eligibility
for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009).

2

Plaintiff was actually an assistant manager in title at Family Dollar. Because she did not hire or
fire and did not handle employee scheduling, however, the Vocational Expert (Judith Beard)
testified that the job would more closely resemble that of a cashier checker. AR at 71-73.
3

Although Plaintiff’s Motion repeatedly refers to ALJ Farris, it is later clear from the record and
Reply Brief that ALJ Fernandez Rice presided.

2

At Step One of the process, the ALJ found that Plaintiff had not engaged in
substantial gainful activity during the relevant time period. AR at 23. At Step Two, she
determined that Plaintiff had the severe impairments of “obesity, obstructive sleep
apnea, chronic right knee (sic), low back and right hip pain, myofascial pain syndrome,
hypertension, hypothyroidism, chronic obstructive pulmonary disease, urinary
incontinence, and depression. . . .” AR at 23. At Step Three, the ALJ concluded that
Plaintiff’s impairments, individually and in combination, did not meet or medically equal
the regulatory “listings.” AR at 24-25.
When a claimant does not meet a listed impairment, the ALJ must determine the
claimant’s residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e),
416.920(a)(4). RFC is a multidimensional description of the work-related abilities a
plaintiff retains in spite of her medical impairments. 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). In this case, the ALJ determined that Plaintiff retained the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except that she can never climb ladders, ropes or scaffolds; can
occasionally climb ramps and/or stairs; can occasionally stoop, crouch,
kneel and crawl; is limited to jobs which can be performed while using a
hand held assistive device required for prolonged ambulation; should
avoid concentrated exposure to environmental irritants such as fumes,
odors, dusts, and gases; should avoid concentrated exposure to
chemicals; and can understand, carry out, and remember detailed but not
complex instructions, make decisions, attend and concentrate for
extended periods, accept instructions, and respond appropriately to
changes in a routine work setting.
AR at 26. Employing this RFC at Steps Four and Five, the ALJ determined that Plaintiff
was unable to perform her past relevant work. AR at 34. However, the ALJ found that
there were jobs that exist in significant numbers in the national economy that Plaintiff
can perform; specifically, the ALJ determined that Plaintiff maintains the RFC to work as

3

a food checker and check cashier. AR at 35. Accordingly, the ALJ determined that
Plaintiff was not disabled from her alleged onset date through the date of her decision,
and denied benefits. AR at 47.
II.

Legal Standard
This Court “review[s] the Commissioner's decision to determine whether the

factual findings are supported by substantial evidence and whether the correct legal
standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting
Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
III.

Analysis
A) Treatment of Dr. Vigil’s Opinion
After reviewing the medical records, John R. Vigil, M.D., examined Plaintiff on

December 20, 2013, at the request of her attorney. AR at 756. Dr. Vigil concluded that
Plaintiff’s “disabilities, including her chronic pain, fatigue, and COPD, severe depression
and anxiety, as well as her severe physical deconditioning preclude her from performing
even sedentary work on a full-time and sustained basis from at least 2012.” AR at 763.
The ALJ “accord[ed] little weight to Dr. Vigil’s opinion regarding as to (sic) the nature
and severity of [Plaintiff’s] impairments and resulting limitations.” AR at 33. In other
words, the ALJ effectively rejected Dr. Vigil’s opinion. Chapo v. Astrue, 682 F.3d 1285,
1291 (10th Cir. 2012) (equating “according little weight to” an opinion with “effectively
rejecting” it); Crowder v. Colvin, 561 F. App’x 740, 742 (10th Cir. 2014) (unpublished)
(citing Chapo for this proposition); Ringgold v. Colvin, 644 F. App'x 841, 844 (10th Cir.
2016) (unpublished) (same). Plaintiff argues that the ALJ erred in giving Dr. Vigil’s

4

opinion little weight because “[t]he ALJ failed to supply adequate reasons for rejecting
Dr. Vigil’s assessment.” Doc. 18 at 12.
Dr. Vigil’s findings are considered an “examining medical-source opinion.”
Ringgold, 644 F. App’x at 843 (citing Chapo, 682 F.3d at 1291; 20 C.F.R. §§
404.1527(c)(1), 416.927(c)(1)). “An examining medical-source opinion ‘may be
dismissed or discounted, of course, but that must be based on an evaluation of all of the
factors set out in the . . . regulations and the ALJ must provide specific, legitimate
reasons for rejecting it.’” Id. The relevant factors include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ's
attention which tend to support or contradict the opinion.
Id. (citing Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.2003); Chapo, 682 F.3d at
1291; 20 C.F.R. §§ 404.1527(c), 416.927(c)). “The ALJ is not required to mechanically
apply all of these factors in a given case. . . . It is sufficient if [s]he ‘provide[s] good
reasons in [her] decision for the weight [s]he gave to the [physician’s] opinions.’” Id.
(quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)).
The ALJ gave the following reasons for giving Dr. Vigil’s opinion little weight:
[1] Dr. Vigil is not a treating physician and saw the claimant on only one
occasion. [2] Although the claimant alleges that she became unable to
work in December 2008, Dr. Vigil indicated that his limitations applied only
as of 2012. [3] Many of the claimant’s statements to Dr. Vigil are
inconsistent with statements that she made to other providers, including
claims that she could walk only 10 yards and did no housework. [4] All
abnormalities noted by Dr. Vigil on his examination of the claimant can be
within the claimant’s voluntary control, including walking slowly, using a
cane, declining to walk on toes or heels or to squat or hop, and limiting

5

motion of the spine. [5] Other physicians have observed the claimant to
walk without a cane, walk on toes and heels, squat, hop, and move her
lumbar spine fully. [6] Dr. Vigil did not report neurological deficits such as
impaired reflexes, decreased sensation, or muscle weakness or atrophy.
[7] The claimant told Dr. Vigil that she stopped working in 2009 due to
“pain issues and her depression and anxiety issues” but five years of
regular doctor visits show no ongoing complaints of depression or anxiety.
[8] Dr. Vigil noted on examination that the claimant's affect and mood
appeared normal although she did appear moderately anxious (Ex.
14F/6). This is scant evidence to support his opinion that the severity of
the claimant's depression meets the requirements of section 12.04 of the
listed impairments (Ex. l 7F). [9] Further, Dr. Vigil is not a psychiatrist.
AR at 33. The question is whether these reasons comport with the regulations and
relevant case law.
The Court finds little fault with the ALJ’s first reason. As noted above, the
regulations explicitly permit an ALJ to discount an examiner’s opinion on the basis of the
length of and nature and extent of the treatment relationship. Here, Dr. Vigil saw Plaintiff
only once. True, an ALJ may not disregard an examining source’s opinion solely on the
basis of this factor, Chapo, 682 F.3d at 1291, but this was not the only reason that the
ALJ provided.
As to the ALJ’s second reason, “Dr. Vigil’s indicat[ion] that that his limitations only
applied as of 2012,” AR at 33, Plaintiff points out that “Dr. Vigil actually opined that the
claimant was disabled ‘from at least 2012.” Doc. 18 at 13 (emphasis in original) (citing
AR at 763). The Court agrees that the ALJ failed to include “at least” in stating this
reason. However, Plaintiff does not explain why this makes a difference. Plaintiff goes
on to argue that “it is unclear how an onset date that is different from the claimant’s
alleged onset date could justify ALJ Fernandez Rice’s total rejection of Dr. Vigil’s
opinion.” Doc. 18 at 14. The Court agrees in principle that if this was the ALJ’s only
reason for discounting Dr. Vigil’s opinion, then she might have committed reversible

6

error.4 Again, however, this was not the ALJ’s only reason for discounting the opinion,
and the ALJ could correctly consider it as an “other factor” which tends to detract from
the opinion.
Plaintiff takes issue with the ALJ’s third reason, related to her representations
to Dr. Vigil that she could only walk 10 yards and did no housework, because the ALJ
“conveniently fails to cite to any evidence of record regarding the allegation that Ms.
Anchondo reported differently to other providers.” Doc. 18 at 14. It is true that the ALJ
did not cite specific medical evidence at this point in the decision. However, elsewhere
in the decision the ALJ notes that Plaintiff reported to her primary care provider that she
walks “about a mile twice a week.” AR at 28 (citing AR at 400). Likewise, elsewhere in
the decision the ALJ references Plaintiff’s function report in which she reported that that
she “does housecleaning, laundry and meal preparation with her daughter’s help.” AR at
25 (citing AR at 252-255). Moreover, the Commissioner correctly notes that Plaintiff
indeed reported doing housecleaning to other providers. See, e.g., AR at 647. In sum,
the Court finds that this reason comports with the ALJ’s duty to consider the opinion in
light of the record as a whole.
The Court agrees that the ALJ’s fourth reason essentially accuses Plaintiff of
malingering, but if it is compared with the ALJ’s fifth reason, one can see why the ALJ
reached that conclusion. As the ALJ notes, Plaintiff was able to walk on her heels and
toes at different points in her medical treatment. AR at 27 (discussing claimant’s
appointment with Dr. Mladinich, AR at 479). Likewise, when she was examined by
consultative examiner Harry Burger, D.O., Plaintiff “could walk on her heels, walk on her
4

Plaintiff was only required to prove that her disability would last for a period of 12 months, 42
U.S.C. § 423(d)(1)(A), and Dr. Vigil examined her in December, 2013. AR at 756. Thus, even if
she only became disabled in 2012, Plaintiff would still meet the statutory definition.

7

toes, squat, and do heel-to-toe walking.” AR at 28; see also AR at 360. In contrast,
when she was examined by Dr. Vigil, Plaintiff was unable to walk on toes or heels and
was unable to squat or hop. AR at 762. Thus, the ALJ rightly pointed out an
inconsistency between Dr. Vigil’s findings and the record as a whole, one of the
regulatory factors she was to consider.
Finally, Plaintiff complains that the ALJ wrongfully discredited the mental
limitations assessed by Dr. Vigil. Doc. 18 at 14. But every reason the ALJ gave for
discounting Dr. Vigil’s conclusions as to Plaintiff’s mental limitations is consistent with
the regulations and the record as a whole. For example, the ALJ noted that despite
reporting to Dr. Vigil that they were part of the reason she was disabled, Plaintiff had no
ongoing complaints of depression or anxiety. See 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4) (consistency with the record). Likewise, the ALJ discounted the opinion
on the basis of its internal inconsistency – noting that Plaintiff’s affect and mood did not
support Dr. Vigil’s finding that her depression was severe enough to meet a listing. See
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (supportability of the decision). Finally, the
ALJ discounted Dr. Vigil’s finding as to the severity of Plaintiff’s mental limitations
because he is not a psychiatrist. See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5)
(specialization).
In sum, the Court finds that, on the whole, the ALJ gave adequate reasons for
according Dr. Vigil’s opinion little weight.
B) Duty to Develop the Record
Plaintiff argues that the ALJ failed in her duty to develop the record by denying
her counsel’s requests that she be sent for a consultative examination to address the

8

effects of her “psychological and developmental learning impairments.” Doc. 18 at 2.
The Court disagrees.
Plaintiff, through counsel, requested on three occasions “a consultative
psychological evaluation with WAIS testing to ascertain the extent and severity of [her]
depression, anxiety, and limitations.” AR at 352. First, Plaintiff wrote a letter to the ALJ
on December 20, 2013. AR at 352. Then, Plaintiff renewed her request for a
consultative examination at her hearing before the ALJ. AR at 46. Finally, Plaintiff wrote
the ALJ a second letter on January 28, 2014. AR at 355. In Plaintiff’s letters, she refers
to a third-party statement from her daughter detailing her inability to read and write,
Dr. Vigil’s findings that she suffers from anxiety, depression, and panic attacks, the fact
that she was in special education, and her inability to graduate high school or pass the
GED. See AR at 352, 355. Plaintiff’s testimony at the hearing was consistent with her
letters. See AR at 50, 60-64.
The ALJ denied Plaintiff’s request in her written opinion. AR at 21. In so doing,
the ALJ reasoned:
This claimant has been seen by her primary care physicians on a regular
basis, and all complaints have been thoroughly evaluated. She has been
referred to specialists for evaluation of many complaints and has
undergone numerous tests; notably, she did not complain of anxiety or
depression until a few weeks before the hearing. Further, treatment notes
show that she has discussed complicated medical issues, such as
surveillance versus biopsy of pulmonary nodules, with her physicians with
no indication of any limitation in understanding.
AR at 21. The question is whether the ALJ abused her discretion in denying Plaintiff’s
request for a consultative psychological evaluation.
While “[i]t is beyond dispute that the burden to prove disability in a social security
case is on the claimant[,] . . . [n]evertheless, because a social security disability hearing

9

is a nonadversarial proceeding, the ALJ is ‘responsible in every case to ensure that an
adequate record is developed during the disability hearing consistent with the issues
raised.’” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quoting Hawkins v.
Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)). The ALJ’s “duty to develop the record
pertains even if the claimant is represented by counsel.” Flaherty v. Astrue, 515 F.3d
1067, 1071 (10th Cir. 2007) (quoting Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th
Cir. 1993)).
The Court begins with the proposition that the Commissioner “has broad latitude
in ordering a consultative examination.” Diaz v. Sec’y of Health and Human Servs., 898
F.2d 774, 778 (10th Cir. 1990). The regulations permit an ALJ to order a consultative
examination if the medical sources do not provide sufficient evidence about an
impairment for the agency to determine whether a claimant is disabled. 20 C.F.R.
§§ 404.1517, 416.917. Before purchasing a consultative examination, the agency
considers existing medical reports, the disability interview form, and any other pertinent
information in the record. 20 C.F.R. §§ 404.1519a(a), 416.919a(a). After considering
this evidence, the agency “may purchase a consultative examination to try to resolve an
inconsistency in the evidence or when the evidence as a whole is insufficient to support
a determination or decision on your claim.” 20 C.F.R. §§ 404.1519a(b), 416.919a(b);
see also Hawkins, 113 F.3d at 1166.
“When a claimant contends that the ALJ erred in failing to obtain a consultative
examination, [the Court is] presented with the difficult issue of ‘deciding what quantum
of evidence a claimant must establish of a disabling impairment or combination of
impairments before the ALJ will be required to look further.’” Barrett v. Astrue, 340 F.

10

App'x 481, 486 (10th Cir. 2009) (quoting Hawkins, 113 F.3d at 1169). “As is usual in the
law, the extreme cases are easy to decide . . . [t]he difficult cases are those where there
is some evidence in the record or some allegation by a claimant of a possibly disabling
condition, but that evidence, by itself, is less than compelling.” Hawkins, 113 F.3d at
1167.
Thus, the Tenth Circuit has explained that “the starting place must be the
presence of some objective evidence in the record suggesting the existence of a
condition which could have a material impact on the disability decision requiring further
investigation.” Id. “Isolated and unsupported comments by the claimant are insufficient,
by themselves, to raise the suspicion of the existence of a nonexertional impairment.”
Id. (citation omitted). Rather, “[o]rdinarily, the claimant must in some fashion raise the
issue sought to be developed . . . which, on its face, must be substantial.” Id. (citations
omitted). “[T]he claimant has the burden to make sure there is, in the record, evidence
sufficient to suggest a reasonable possibility that a severe impairment exists. When the
claimant has satisfied his or her burden in that regard, it then, and only then, becomes
the responsibility of the ALJ to order a consultative examination if such an examination
is necessary or helpful to resolve the issue of impairment.” Id.
Plaintiff has not met her initial burden as to her claimed “developmental learning
impairments.” Doc. 18 at 15. There is an absolute dearth of evidence in the record
concerning Plaintiff’s cognitive functioning, aside from her own statements and the thirdparty statement of her daughter. However, “isolated comments about [Plaintiff’s]
possible limited intelligence, when viewed as part of the entire record, do not sufficiently
raise a question about [her] intelligence.” Sneed v. Barnhart, 88 F. App’x 297, 301 (10th

11

Cir. 2004); Hawkins, 113 F.3d at 1167; see also Wall v. Astrue, 561 F.3d 1048, 1063
(10th Cir. 2009) (“in the context of the entire record, Claimant failed to present evidence
of a cognitive impairment that was substantial on its face.”). As the ALJ notes, Plaintiff
has not been diagnosed with a learning disorder, AR at 23, and here, as in Sneed, no
doctor has recommended that she undergo intelligence testing. Moreover, the evidence
before the ALJ supports her conclusion that Plaintiff’s cognitive functioning did not
substantially interfere with her ability to work. See AR at 25 (discussing Plaintiff’s mental
functioning). Finally, the ALJ rightly noted that Plaintiff’s “treatment notes show that she
has discussed complicated medical issues, such as surveillance versus biopsy of
pulmonary nodules, with her physicians with no indication of any limitation of
understanding.” AR at 21; see AR at 564, 573.
The same is not true as to Plaintiff’s anxiety and depression. The ALJ found
Plaintiff’s depression to be “at least severe,” AR at 32, and dozens of entries in
Plaintiff’s treatment notes make amply clear that she has a history of anxiety and
depression which has been treated with outpatient medication. See AR at 381, 387,
389-90, 393-94, 397-98, 400-01, 403-04, 406-08, 410-11, 414-15, 417-18, 420-21, 42324, 429-30, 432-3, 437-8, 440-41, 443-44, 447-48, 450-52, 455-56, 459, 461-62, 46465, 467-68, 470-71, 474-75, 482, 495-96, 515, 523, 527-28, 533-35, 543-45, 547, 550,
559, 563, 567-68, 647-48, 658-59, 686-87, 699-701, 706-07, 711-12, 730-31, 739-40,
783-84, 787-89, 813, 856. Thus, the question is whether a consultative would have
been necessary or helpful to resolve the issue of the degree to which Plaintiff’s
depression and anxiety affect her functioning. Hawkins, 113 F.3d at 1167.

12

The Commissioner argues that “the record contained sufficient evidence for the
ALJ to assess the limitations caused by Plaintiff's depression.” Doc. 20 at 5. Case law
supports the notion that when the record contains sufficient evidence to evaluate a
claimant’s mental impairment, further development of the record is unnecessary. See
Barrett, 340 F. App’x at 487 (finding no duty to order a consultative psychological
examination where “[t]he evidence indicated that claimant's depression was controlled
by his medication and resulted in only mild restrictions and difficulties related to his
activities of daily living, social functioning, and maintaining concentration, persistence,
and pace.”); Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008) (finding no duty to
order a consultative psychological examination “because sufficient information existed
for the ALJ to make her disability determination” including, evidence of the claimant’s
daily activities and a PRT form). The Court agrees with the Commissioner that the ALJ
had sufficient evidence to evaluate the limiting effects of Plaintiff’s mental impairments
in this case.
For one thing, Plaintiff’s treatment notes contain little in the form of substantive
complaints or treatment related to these diagnoses besides the continuance of
outpatient medication. See, e.g., AR at 529 (noting that Plaintiff was not tearful, did not
have a flat affect and was smiling). There were even some instances where no
depression or anxiety was reported or where the same were denied. AR at 478, 539
(denying both anxiety and depression), 544 (denying anxiety), 568 (no depression or
anxiety), 572 (same), 678 (same), 813 (denying both). And some providers noted that
Plaintiff’s depression “is well treated” or “controlled” with medication. AR at 752, 820.
Thus, while the medical evidence establishes that Plaintiff has a long-standing

13

diagnosis of depression and/or anxiety which has been treated with medication, none of
Plaintiff’s treating providers appeared to be overly concerned with her mental health.
The ALJ summarizes this information when formulating Plaintiff’s RFC. AR at 31. The
ALJ further notes that Plaintiff “did not complain of anxiety or depression until January 2,
2014, a few weeks before her hearing” and “has not sought treatment from a
psychiatrist, psychologist, or other mental health professional.” AR at 31. In light of this
scant evidence of any functional limitations from anxiety or depression, it is unsurprising
that the ALJ determined that a consultative examination would not be necessary or
helpful in determining the severity of Plaintiff’s depression and anxiety.
Furthermore, evidence in the record provided the ALJ with ample cause to
conclude that Plaintiff’s mental impairments do not render her disabled. In addition to
Plaintiff’s treatment notes the ALJ considered and weighed two medical opinions which
evaluated the nature and severity of Plaintiff’s mental functioning – one by nonexamining state agency consultant, Scott Walker, M.D., and another by Dr. Vigil. AR at
32-33.
Dr. Walker reviewed Plaintiff’s medical records at reconsideration, on October
11, 2012, and determined that any limitation Plaintiff has as a result of her anxiety or
depression is not severe. AR at 90, 102. Dr. Walker’s noted Plaintiff’s history of
depression and anxiety as well as a prescription for Zoloft. AR at 90, 102. However, he
pointed out that Plaintiff “is not currently seen by a mental health provider, no therapy or
counseling, no psych admits.” AR at 90, 102. Dr. Walker further explained that in some
of the medical records, Plaintiff denied anxiety or depression at the time of exam and
that her family practice records “do not address any mental health concerns.” AR at 90,

14

102. Dr. Walker completed a Psychiatric Review Technique for Plaintiff and considered
whether Plaintiff’s condition could qualify under Listing 12.04 (Affective Disorders). AR
at 90, 102. He concluded that it did not because, in his opinion, Plaintiff demonstrated
no restrictions of her activities of daily living and only mild difficulties in maintaining
social functioning and in maintaining concentration, persistence, and pace. AR at 90,
102. Dr. Walker also noted that Plaintiff suffered no episodes of decompensation. AR at
90, 102. Ultimately Dr. Walker concluded that
[w]hile clmt does appear to have some depression over her physical
impairments and possibly some bereavement, current medical evidence
does not support a severe limitation. The clmt is not participating in any
psych TX other than RX use. Her ADLs appear to be only limited by her
physical pain, not by psych issues.
AR at 90, 102. The ALJ gave Dr. Walker’s opinion limited weight, stating “[w]hile I am
influenced by the rationale of the state agency consultants, I find that the claimant's
depression is at least severe.” AR at 32.
As noted above, Plaintiff was examined by Dr. Vigil on December 20, 2013. See
AR at 759. Among her primary disabling complaints, Plaintiff reported “severe
depression and anxiety.” AR at 759. During the examination Plaintiff told Dr. Vigil that
she could not continue her work as a laundry attendant in part due to her “depression
and anxiety issues.” AR at 761. Dr. Vigil noted that Plaintiff’s affect and mood were
normal although she did appear “moderately anxious.” AR at 761.
Dr. Vigil found Plaintiff to be moderately limited in her abilities to remember
locations and work-like procedures, to maintain attention and concentration for
extended periods of time, to perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerance, to sustain an ordinary routine

15

without special supervision, to interact appropriately with the general public, to accept
instructions and respond appropriately to criticism from supervisors, to maintain socially
appropriate behavior and adhere to basic standards of neatness and cleanliness, to
respond appropriately to changes in the workplace, to travel in unfamiliar places or use
public transportation, and to set realistic goals or make plans independently of others.
AR at 766-67. Dr. Vigil further found Plaintiff to be markedly limited in her abilities to
understand and remember detailed instructions, carry out detailed instructions, to work
in coordination with/or in proximity to others without being distracted by them, and to
complete a normal workday and workweek without interruption from psychological
based symptoms and to perform at a consistent pace without unreasonable number and
length of rest periods. AR at 766.
Overall, Dr. Vigil concluded that Plaintiff’s physical and psychological conditions
combined precluded even sedentary work, AR at 763, and that Plaintiff’s conditions met
Listing 12.04. AR at 768. As explained above, however, the ALJ “accord[ed] little weight
to Dr. Vigil's opinion regarding as to the nature and severity of the claimant’s
impairments and resulting limitations.” AR at 33.
Drs. Walker and Vigil’s findings provided the ALJ with sufficient evidence
concerning Plaintiff’s mental health diagnoses to make a decision in this case. See
Barrett, 340 F. App’x at 487; Cowan, 552 F.3d at 1187. The doctors’ opinions examined
the severity of Plaintiff’s mental impairments and provided overviews of how each
thought Plaintiff could perform in the work setting. Compare AR at 89-90 with AR at
756-70. It was the ALJ’s prerogative to weigh these opinions and to reach conclusions
about the severity of Plaintiff’s mental impairments. This is exactly what the ALJ did by

16

affording little weight to the opinions of Dr. Walker and Dr. Vigil, and by reaching the
conclusion that while Plaintiff’s depression is at least severe, it is not disabling.
Therefore, the ALJ did not err in refusing to develop the record as to Plaintiff’s anxiety
and/or depression “because sufficient information existed for the ALJ to make her
disability determination.” Cowan, 552 F.3d at 1187.
Plaintiff argues that by effectively rejecting Dr. Vigil’s opinion, the ALJ was left
without sufficient evidence by which to evaluate her RFC. Doc. 23 at 6. In other words,
Plaintiff argues that Dr. Walker’s opinion cannot form the basis of her mental RFC. Id.
(“The fact that a stale, non-examining consultant’s assessment remained does not
change the fact that the record contained insufficient evidence for the ALJ to determine
Ms. Anchondo’s mental RFC.”) (citing Fleetwood v. Barnhart, 211 F. App’x 736, 739-40
(10th Cir. 2007) (unpublished)). The Court is not persuaded. In Fleetwood, the Tenth
Circuit held that check-the-box forms filled out by agency physicians “standing alone,
unaccompanied by thorough written reports or persuasive testimony are not substantial
evidence.” Id. at 740 (quoting Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987)). Dr.
Walker’s opinion in this case does not run afoul of this rule. As detailed above, Dr.
Walker’s conclusions as to Plaintiff’s abilities are supported by a written explanation.
Thus, Fleetwood is inapplicable in this case.
To summarize, there is insufficient evidence in the record to trigger the ALJ’s
duty to order a consultative examination to assess Plaintiff’s learning impairments.
While there is evidence in the record that she suffered from anxiety and depression,
there was sufficient evidence for the ALJ to assess the degree of limitation these

17

impairments caused. Therefore, the ALJ acted within her discretion by refusing to order
a consultative psychological evaluation in this case.
C. Plaintiff’s Urinary Frequency and her RFC
Next, Plaintiff challenges the ALJ’s treatment of her urinary incontinence when
formulating her RFC. Specifically, Plaintiff argues that “[n]othing contained in the RFC
describes for or accounts for the effects of Ms. Anchondo’s heavily documented, severe
urinary incontinence.” Doc. 18 at 19 (emphasis omitted).
The regulations require an ALJ to consider “limitations and restrictions imposed
by all of an individual’s impairments” when formulating a claimant’s RFC. SSR 96-8P at
*5, 1996 WL 374184; see also 20 C.F.R. §§ 404.1545, 416.945. The ALJ did so in this
case. First, the Court notes that the ALJ stated that she “considered all symptoms and
the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence” when formulating Plaintiff’s RFC. AR at
26. The Court starts with the proposition that it should take the ALJ at her word when
she declares that she has considered this matter. See Hackett v. Barnhart, 395 F.3d
1168, 1173 (10th Cir.2005) (“[O]ur general practice ... is to take a lower tribunal at its
word when it declares that it has considered a matter.”).
However, the Court does not merely have to take the ALJ at her word in this
case, as the ALJ then went on to specifically discuss Plaintiff’s urinary incontinence
when formulating her RFC:
With regard to the claimant's bladder and urinary related symptoms,
treatment notes show that the claimant was prescribed Ditropan for
overactive bladder in July 2011 (Ex. 3F/111-112). Due to ongoing
complaints of stress and urinary incontinence, the claimant underwent
urodynamic testing on October 1, 2013, which showed mixed incontinence
(stress and urge) (Ex. 20F/32). Her gynecologist prescribed a pessary for

18

stress incontinence and oxybutynin for urge (Ex. 20F/29-30). I note that on
the Disability Report filed with her application in 2011, the claimant listed
oxybutynin for overactive bladder when stating her medications, but did
not mention overactive bladder as [a] work limitation (Ex. 2E). On a form
completed in November 2012, she indicated that she woke up twice a
night to go to the bathroom (Ex. 13F/61). It was not until a few months
before her disability hearing that she began complaining of a dramatic
increase in her symptoms (Ex. 20F/26 and 34). She testified at the hearing
that she needed to urinate every 3 to 5 minutes, even though her attorney
pointed out that the hearing had been proceeding for at least 20 minutes
at that point. Overall, I am persuaded that any urinary symptoms
experienced by the claimant would not prevent work within the
foregoing residual functional capacity, with the ameliorating
measures recommended by her gynecologist.
AR at 30 (emphasis added).
Notwithstanding this discussion, Plaintiff argues that “the objective medical
evidence of record supported some degree of environmental restriction related to
urinary frequency and incontinence,” especially considering the ALJ found urinary
incontinence to be one of Plaintiff’s severe impairments at Step Two. Doc. 18 at 20.
However, it is the ALJ’s prerogative to assess the degree to which an impairment will
restrict a claimant’s RFC. In this case, after reviewing the available evidence, the ALJ
concluded that Plaintiff’s urinary incontinence, though severe, would not impose
additional restrictions that are inconsistent with her RFC. Having considered the
evidence of record concerning Plaintiff’s urinary incontinence, the Court will not disturb
this finding. See Villalobos v. Colvin, 544 F. App'x 793, 797 (10th Cir. 2013)
(unpublished) (“The administrative law judge had no evidence of functional limitations
from the alleged incontinence. . . . As a result, the administrative law judge did not err
by assessing the residual functional capacity without incorporating limitations from
incontinence.”).

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D. Evaluation of Obesity
Plaintiff argues that the ALJ failed to incorporate the functionally limiting effects of
obesity into in her RFC, contrary to SSR 96-8p, SSR 02-01p and Listing 1.00Q. Doc. 18
at 20. The Commissioner counters that the ALJ indeed considered obesity when
formulating Plaintiff’s RFC. Doc. 20 at 12 (citing AR at 26, 29-30).
“Obesity is a risk factor that increases an individual’s chances of developing
impairments in most body systems. It commonly leads to, and often complicates,
chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems.”
SSR 02-01p, 2002 WL 34686281, at *3. For this reason, “Social Security Ruling (SSR)
02-1p requires an ALJ to consider the effects of obesity when assessing RFC, including
the fact that ‘the combined effects of obesity with other impairments can be greater than
the effects of each of the impairments considered separately.’” DeWitt v. Astrue, 381 F.
App’x 782, 785 (10th Cir. 2010) (quoting SSR 02-1p at *1). However, “an ALJ may ‘not
make assumptions about the severity or functional effects of obesity combined with
other impairments’ but rather, must ‘evaluate each case based on the information in the
case record.’” Id.
Plaintiff relies upon DeWitt, arguing that in this case the ALJ “made assumptions
about the effects of obesity and failed to include in the RFC any restrictions clearly
traceable to those effects.” Doc. 18 at 22. In DeWitt, the ALJ, as here, found obesity to
be a severe impairment at Step Two. Id. at 784. Although the Dewitt ALJ, again as here,
ultimately limited the claimant to sedentary work with additional restrictions, the Tenth
Circuit reasoned:
there [was] nothing in the [ALJ’s] decision indicating how or whether [the
claimant’s] obesity influenced the ALJ in setting those restrictions. Rather,

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it appear[ed] that the ALJ’s RFC assessment was based on “assumptions
about the severity or functional effects of [DeWitt’s] obesity combined with
[her] other impairments” – a process forbidden by SSR 02-1p.
Id. at 785. Accordingly, the Tenth Circuit remanded for proper consideration of the
claimant’s obesity in relation to her other impairments and her RFC. Id.
Unfortunately for Plaintiff, Dewitt is distinguishable from this case. There, the ALJ
gave “considerable weight” to a physician’s testimony (Dr. Brahms) when formulating
the claimant’s RFC. Id. at 785. “But in doing so, the ALJ mistakenly believed that Dr.
Brahms had identified obesity as one of DeWitt’s medical conditions. In fact, Dr. Brahms
offered no opinion about the functional effects of DeWitt’s obesity . . . [h]e simply never
mentioned obesity.” Id. Thus, the Tenth Circuit concluded that the ALJ could not rely on
Dr. Brahms’ testimony to “satisfy the duty to consider the effects of DeWitt’s obesity on
her other severe impairments.” Id.
In this case, however, the ALJ did not rely on a single medical opinion in
determining the limiting effects of Plaintiff’s obesity. Rather, she reviewed the entire
record and “considered the effects of claimant’s obesity in combination with her other
impairments, as required by SSR 02-1p.” AR at 24. The ALJ further considered the
effects of Plaintiff’s obesity on her musculoskeletal, respiratory and cardiovascular
systems. AR at 24. The ALJ summarized her findings as follows:
The claimant is obese, at a height of 62 to 63 inches and weight of 213
pounds in July 2011 and 220 pounds in December 2013, with her body
mass index calculated at 38.4 in August 2011 and 35 in April 2013 (Ex.
3F/133 and 152, Ex. 13F/6, and Ex. 14F/6). She has obesity related
diagnoses of hypertension, joint pain, and obstructive sleep apnea. The
claimant was hospitalized from June 2, 2011 to June 4, 2011, for workup
and evaluation of chest pain, but cardiac catheterization was negative,
and her chest pain was determined to be noncardiac in origin (Ex. 3F/3-5).
Her medical providers have repeatedly recommended that she follow a

21

diet and exercise regularly to reduce her weight and improve her overall
health.
AR at 24. The ALJ then discussed Plaintiff’s obesity-related diagnoses when formulating
her RFC. See AR at 27-31.
Yet when formulating her RFC, the ALJ never explicitly discusses any additional
limiting effects caused by Plaintiff’s obesity. See AR at 27-31. Plaintiff contends that this
is reversible error, arguing that “nothing in the RFC is apparently traceable to the
additional limiting effects of Ms. Anchondo’s obesity[.]” Doc. 18 at 23. However, Plaintiff
does not identify any further limitations her obesity causes. Post-DeWitt case law shows
this to be fatal to Plaintiff’s claim of error.
In Arles v. Astrue, 438 F. App’x 735, 740 (10th Cir. 2011) (unpublished), the
claimant argued that the ALJ “failed to include his obesity in the RFC determination.” Id.
While the Tenth Circuit found that “[t]he ALJ could have provided a more particularized
discussion of the effects of Mr. Arles’s obesity,” it ultimately deferred to the ALJ’s
assertion that the claimant’s obesity had been evaluated under the criteria set forth in
SSR 02-1p. Id. In addition to the deference it afforded to the ALJ, the Tenth Circuit
placed the burden on the claimant to show how his obesity further restricted his RFC.
Id. (“Moreover, Mr. Arles does not discuss or cite to any evidence showing that obesity
further limited his ability to perform a restricted range of sedentary work.”).
Next, in Jimison ex rel. Sims v. Colvin, 513 F. App’x 789, 798 (10th Cir. 2013)
(unpublished), the claimant “claim[ed] error by the ALJ in finding Ms. Sim’s obesity to be
a severe impairment at step two but not including it in his RFC at step five.” Id. The
Tenth Circuit rejected this argument because “there [was] no record indication of any

22

functional limitations from Ms. Sim’s obesity or of any impairments possibly caused or
exacerbated by her obesity that are inconsistent with the RFC” the ALJ assigned. Id.
Then, in Smith v. Colvin, 625 F. App’x 896, 899 (10th Cir. 2015) (unpublished),
the claimant argued, as claimant does here, that “other than noting her obesity was a
severe impairment, the ALJ never analyzed or discussed her obesity, including in his
RFC analysis.” Id. The Tenth Circuit disagreed. Emphasizing that an ALJ cannot
assume a functional deficit, the court addressed the claimant’s argument thusly:
We take this to mean that for each piece of evidence the ALJ discussed in
formulating her RFC (and there were several), he was also required to
note the absence of any evidence that her obesity resulted in additional
functional limitations or exacerbated any other impairment. We decline to
impose such a requirement on the ALJ.
Id. The Tenth Circuit then again placed the burden on the claimant to show that her
obesity resulted in further limitations than the ALJ assigned in her RFC: “Ms. Smith has
not shown that her obesity alone, or in combination with other impairments, resulted in
any further limitations.” Id.
Finally, in Rose v. Colvin, 634 F. App’x 632 (10th Cir. 2015) (unpublished), the
claimant argued, as claimant does here, that “although the ALJ found her obesity to be
a severe impairment, he failed to properly consider its effects in formulating her RFC.”
Id. at 637. The Tenth Circuit acknowledged that “[t]he ALJ did not specifically mention
obesity in the RFC determination,” but, instead, “included specific limitations and
restrictions for stooping, kneeling, and crouching.” Id. The court then placed the onus on
the claimant to show how the medical evidence supported further functional limitations.
Id. Observing that the claimant cited no such evidence, the Court held that “the factual
record does not support Ms. Rose’s position that her obesity, either alone or in

23

combination with other conditions, precludes her from performing a limited range of
sedentary work.” Id. (quoting Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004)).
In sum, recent case law mandates that a failure to properly consider obesity is
not reversible error where, as here, the claimant points to no evidence that obesity
imposes any additional limitations beyond those the ALJ found. In the absence of any
such evidence, and having carefully reviewed the record in this case, the Court is
confident that the ALJ adequately considered Plaintiff’s obesity when formulating her
RFC.
E. The ALJ’s Step Five Analysis
Plaintiff’s final argument takes issue with the ALJ’s finding that she acquired
transferrable skills working as a cashier/checker. See Doc. 18 at 23-27. As the
Commissioner correctly notes, “[i]n this case, the ALJ found Plaintiff turned 55
(advanced age) by the time the decision was issued, had a limited education, and could
perform a range of sedentary work.” Doc. 20 at 13 (citing AR at 34). The regulations
speak specifically to such a situation:
If you are of advanced age (age 55 or older), and you have a severe
impairment(s) that limits you to sedentary or light work, we will find that
you cannot make an adjustment to other work unless you have skills
that you can transfer to other skilled or semiskilled work. . .
20 C.F.R. § 404.1568(d)(4), 416.968(d)(4) (emphasis added); see also SSR 82-41,
1982 WL 31389 at *5 (“To find that an individual who is age 55 or over and is limited to
sedentary work exertion has skills transferable to sedentary occupations, there must be
very little, if any, vocational adjustment required in terms of tools, work processes, work
settings or the industry.”). Thus, by restricting Plaintiff’s RFC to a limited range of
sedentary work, the ALJ was compelled to identify transferrable skills in Plaintiff’s work

24

history in order to find her not disabled. See Dikeman v. Halter, 245 F.3d 1182, 1184
(10th Cir. 2001).
Relying on Vocational Expert testimony, the ALJ found that Plaintiff acquired
work skills from her past relevant work as a grocery store cashier/checker, D.O.T. No.
211.462-014. AR at 34. The Vocational Expert testified that Plaintiff acquired the
following skills working in this position: “operating a cash register; recording prices;
collecting cash, check or charge payments from customer; making change; recording
daily transactions; balancing cash drawer; [and,] providing assistance to customers.” AR
at 75.
Plaintiff argues that she could not have acquired transferrable skills as a
cashier/checker because that position was not “past relevant work,” Doc. 18 at 23, and
because she “failed to demonstrate proficiency in cashier/checker related tasks.” Id. at
25. Plaintiff’s arguments miss the mark for several reasons.
Most importantly, Plaintiff’s arguments focus upon the wrong job – her
employment with Family Dollar. There Plaintiff worked as an “assistant manager” from
July 2003 through March 2004, a period of eight months. AR at 226, 239,5 192-93
(showing earnings from Family Dollar in 2003-2004). But the Vocational Expert testified
that that because Plaintiff’s job duties were limited in this role, the position more closely
resembled that of a cashier checker, D.O.T. No. 211.462-010. AR at 73. It is this job on
which Plaintiff’s arguments hinge. Doc. 18 at 25. However, Plaintiff later worked as a
cashier checker at a grocery store. AR at 70, 192-93 (showing earnings from Hi-Lo
Market from 2004-2007). It was this job from which the ALJ determined that Plaintiff had
5

Plaintiff would later testify that she worked at this job for ten months to a year, but her listing of
her past relevant work shows that she only worked there for eight months. Compare AR at 70
with AR at 226, 239.

25

acquired transferrable skills. AR at 34. The two positions are distinct both as a matter of
their D.O.T. numbers, AR at 71-73; compare D.O.T. No. 211.462-010 (convenience
store cashier) with D.O.T. No. 211.462-014 (grocery store cashier), and in relation to the
length of Plaintiff’s employment and earnings received therefrom. See AR at 192-93.
Plaintiff further argues in her Reply brief that in connection with her job at the
Family Dollar, the ALJ “did not demonstrate that Plaintiff’s past work as a
Cashier/Checker was substantial gainful activity.” Doc. 23 at 9. “Past relevant work is
work that you have done within the past 15 years, that was substantial gainful activity,
and that lasted long enough for you to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1),
416.960(b)(1). Substantial gainful activity is defined as work activity that involves doing
significant physical or mental activities for pay or profit, whether or not a profit is
realized. 20 C.F.R. §§ 404.1572(a)-(b), 416.972(a)-(b). The amount of money earned
doing a particular job is a primary consideration in determining whether a person is
engaged in substantial gainful activity. 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1). The
POMS6 establish that minimum monthly earnings in 2003-2004 to be considered
substantial gainful activity ranged from $800.00 in 2003 to $810.00 in 2004. See POMS
DI 10501.015 available at https://secure.ssa.gov/poms.nsf/lnx/ 0410501015.
In connection with her employment with Family Dollar, Plaintiff made $2,175.40
in 2003 and $7,365.20 in 2004, for total earnings of $9,540.60. AR at 192-93. Dividing
this number by the eight months she worked results in total average monthly earnings of

6

“The POMS is ‘a set of policies issued by the Administration to be used in processing claims. .
. .’ We ‘defer to the POMS provisions unless we determine they are ‘arbitrary, capricious, or
contrary to law[.]’” Carver v. Colvin, 600 F. App’x 616, 619 (10th Cir. 2015) (quoting McNamar v.
Apfel, 172 F.3d 764, 766 (10th Cir. 1999); Ramey v. Reinertson, 268 F.3d 955, 964 n. 2 (10th
Cir. 2001)).

26

$1,192.57, well above the substantial gainful activity amounts established by the POMS.
In other words, Plaintiff’s work as a cashier/checker at Family Dollar was substantially
gainful. Plaintiff has not argued that her work as a cashier checker at the grocery store
from 2004-2007 did not qualify as substantial gainful activity.
Plaintiff next maintains that “she did not actually learn any skills as a cashier,”
Doc. 23 at 10, pointing out that she was terminated from Family Dollar. Doc. 18 at 2526. Plaintiff has pointed to no authority establishing the relevance of her termination
from a job she maintained for eight months. However, assuming for the sake of
argument that Plaintiff’s position has merit, she fails to explain how she could not have
gained these skills while working for three years as a grocery store cashier at the Hi-Lo
Market.
Perhaps conceding that her initial arguments do not apply to the grocery store
cashier position, Plaintiff shifts her focus in her reply brief, arguing that “it was improper
[for the ALJ] to transfer unskilled job activities from any level of work.” Doc. 23 at 10
(citing SSR 82-41). In other words, Plaintiff argues that “the job-related tasks of the
‘grocery cashier’ (semi-skilled work with SVP of 3) did not constitute transferrable skills.”
Id. The Court disagrees.
“Skills refer to experience and demonstrated proficiency with work activities in
particular tasks or jobs.” SSR 82-41, 1982 WL 31389 at *3.
A skill is knowledge of a work activity which requires the exercise of
significant judgment that goes beyond the carrying out of simple job duties
and is acquired through performance of an occupation which is above the
unskilled level (requires more than 30 days to learn). It is practical and
familiar knowledge of the principles and processes of an art, science or
trade, combined with the ability to apply them in practice in a proper and
approved manner.

27

SSR 82-41, 1982 WL 31389 at *2. “If you have acquired skills through your past work,
we consider you to have these work skills unless you cannot use them in other skilled or
semi-skilled work that you can now do.” 20 C.F.R. §§ 404.1565(a), 416.965(a).
“Skills, levels of skills and potential occupations to which skills from PRW may be
transferred are for the adjudicator or ALJ to determine (with the assistance, when
required, of a VS or occupational reference sources).” SSR 82-41, 1982 WL 31389 at
*4. “When an ALJ makes a finding that a claimant has transferrable skills, he must
identify the specific skills actually acquired by the claimant and the specific occupations
to which those skills are transferrable.” Dikeman, 245 F.3d at 1185.
Plaintiff correctly notes that when determining whether skills may be transferred
from semi-skilled occupations, “close attention must be paid to the actual complexities
of the job in dealing with data, people or objects and to the judgments required to do the
work” because “the content of work activities in some semiskilled jobs may be little more
than unskilled.” SSR 82-41, 1982 WL 31389 at *2. However, Plaintiff does not cite to
any authority establishing that the work activities identified by the ALJ in this case are
unskilled and therefore not transferrable. To the contrary, the ALJ appears to have
complied with the applicable regulations and precedent by relying on Vocational Expert
testimony establishing that Plaintiff has transferrable skills from her work as a grocery
store cashier. See Jensen v. Barnhart, 436 F.3d 1163 (10th Cir. 2005). Accordingly, the
Court will not disrupt this finding.
IV.

Conclusion
Plaintiff has failed to demonstrate that the ALJ committed reversible error in this

case.

28

Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand (Doc. 18) is denied
and a final order pursuant to Rule 58 dismissing this case will be entered.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

29