Montoya v. Social Security Administration

Filing 28

ORDER by Magistrate Judge Gregory J. Fouratt denying 24 Motion to Remand to Agency. IT IS FURTHER ORDERED that the Commissioner's final decision is HEREBY AFFIRMED and that the instant cause be DISMISSED. (kdj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
MARY LOUISE MONTOYA,
Plaintiff,
v.

Civ. No. 16‐116 GJF

CAROLYN COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER
THIS MATTER is before the Court on Plaintiff’s “Motion to Reverse and Remand to
Agency for Rehearing, With Supporting Memorandum” (“Motion”), filed on August 5, 2016.
ECF No. 24. The Commissioner responded on October 7, 2016. ECF No. 25. Plaintiff replied
on October 21, 2016. ECF No. 26. Having meticulously reviewed the entire record and the
parties’ pleadings, the Court finds that Plaintiff’s Motion is not well taken and that the
Administrative Law Judge’s (“ALJ’s”)’s ruling should be AFFIRMED. Therefore, and for the
following reasons, the Court will DENY Plaintiff’s Motion.
I.

BACKGROUND
Plaintiff was born on February 6, 1962, in Albuquerque, New Mexico. Administrative R.

(“AR”) 201-02. She graduated from high school and obtained additional vocational training as a
nurse’s assistant, phlebotomist, and teacher’s assistant. AR 239. In the last fifteen years, she
reported working as both a clerk and an educational assistant. AR 240. As a clerk, she assisted
individuals with completing food stamp applications, did computer checks to verify their
qualifications for food assistance, handled filing, and engaged in miscellaneous office work. AR

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254. As a teaching assistant, she spent her time entirely in the classroom assisting with the
instruction of students. AR 255.
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) alleging disability beginning on July 1, 2012, due to fibromyalgia, back
pain, and depression. AR 87. The Social Security Administration (“SSA”) denied Plaintiff’s
application initially on January 25, 2013, and upon reconsideration on May 9, 2013. AR 87-98,
125-36. At her request, Plaintiff received a de novo hearing before ALJ Ann Farris on March 25,
2014, at which Plaintiff, her non-attorney representative, and a vocational expert (“VE”)
appeared. AR 61-84. On September 26, 2014, the ALJ issued her decision, finding that Plaintiff
was not disabled within the meaning of the Social Security Act (“the Act”). AR 42-56. Plaintiff
submitted additional medical evidence to the SSA Appeals Council, but it declined review on
January 11, 2016. AR 8-33. As a consequence, the ALJ’s decision became the final decision of
the Commissioner. 20 C.F.R. § 422.210(a) (2016).
Plaintiff timely filed her appeal with the U.S. District Court on February 18, 2016. ECF
No. 1.
II.

PLAINTIFF’S CLAIMS
Plaintiff advances three grounds for relief. First, she argues that the ALJ failed to

develop the record. Pl.’s Mot. 8-9, ECF No. 24. Next, she avers that the ALJ failed to properly
weigh the opinion of three different health providers. Id. at 10-14. Lastly, she contends the
ALJ’s “step five” decision is not supported by substantial evidence. Id. at 14-17.
III.

APPLICABLE LAW
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision

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becomes the final decision of the agency. 1 The Court’s review of that final agency decision is
both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”)
The factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373
F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004);
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ’s decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
Substantial evidence does not, however, require a preponderance of the evidence. See Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d
at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the Court reviews “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
1

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2016); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).

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Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2016).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App’x 1. If a claimant’s
impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to
the first of three phases of step four and determines the claimant’s residual functional capacity
(“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the
ALJ determines the physical and mental demands of the claimant’s past relevant work, and in the
third phase, compares the claimant’s RFC with the functional requirements of her past relevant
work to determine if the claimant is still capable of performing her past work. See Winfrey, 92
F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f).

If a claimant is not prevented from

performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
claimant bears the burden of proof on the question of disability for the first four steps, and then
the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137,
146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to her past work, then the Commissioner bears the burden at
the fifth step of showing that the claimant is capable of performing other jobs existing in
significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams

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v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation
process in detail).
IV.

THE ALJ’S DECISION
The ALJ issued her decision on September 26, 2014. AR 56. At step one, she found that

Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of
July 1, 2012. AR 44. Although Plaintiff worked for sixty-eight (68) days as a lunch server in the
summer of 2013, the ALJ found the endeavor to be an “unsuccessful work attempt” and
proceeded to step two. AR 44. There, she found that Plaintiff suffered from the following
severe impairments: (1) somatoform disorder; (2) major depressive disorder; and (3)
fibromyalgia. AR 44. In tandem with these findings, the ALJ also found Plaintiff’s dyshydrotic
eczema and anxiety to be non-severe and provided her rationale for finding them so. AR 44-47.
At step three, the ALJ found that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 47-49. This finding included an analysis of Plaintiff’s mental
impairments, which the ALJ found did “not meet or medically equal the criteria of Listing
Sections 12.04 (affective disorders) and/or 12.07 (somatoform disorders).” AR 47-49.
Because none of Plaintiff’s impairments satisfied an applicable Listing, the ALJ moved
on to step four and assessed Plaintiff’s RFC. AR 49-54. “After careful consideration of the
record,” the ALJ determined that “[Plaintiff] has the residual functional capacity to perform light
work. [Plaintiff] can frequently handle and finger. [Plaintiff] can make simple decisions with
few workplace changes.” AR 49. In reaching this conclusion, the ALJ accorded great weight to
the “State agency” and its “non-treating, non-examining medical sources,” who uniformly
opined:

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[Plaintiff] is limited to lifting 10 pounds frequently and 20 pounds
occasionally. Standing and walking can be performed for up to six hours a
day. Work can be performed where interpersonal contact is routine but
superficial. Tasks should be no more complex than those learned by
experience, with several variables and judgment within limits. Supervision
required is little for routine tasks but detailed for non-routine.
AR 54. The ALJ found “these opinions [to be] internally consistent and well supported by a
reasonable explanation and the available evidence.” AR 54. Additionally, the ALJ assigned
“some weight” to Dr. Paula Hughson, a consultative psychiatric examiner. AR 54. See AR 37074. Following her examination, Dr. Hughson assigned Plaintiff a Global Assessment of
Functioning (“GAF”) score of fifty-five (55), which indicates “moderate symptoms and a
moderate difficulty in social, occupational, or school functioning.” AR 54. Furthermore, she
opined that Plaintiff possessed multiple, mild mental limitations and one moderate limitation in
her “ability to carry out instructions.” AR 54, 370-74. The ALJ concurred with Dr. Hughson’s
conclusions, giving weight to the GAF score only “in relation to [Plaintiff’s] concentration,” and
finding “that all other facets of [Plaintiff’s] psychological impairments are mild.” AR 54.
Lastly, the ALJ ascribed “little weight” to certified nurse practitioner Myrna Gallegos, because
Ms. Gallegos is not a doctor, her opinion “is vague as to what amount [Plaintiff] can lift, carry,
push and or pull,” and her opinion “is not consistent with the overall medical record or the above
residual functional capacity.” AR 54.
At step four, the ALJ found that Plaintiff could not perform any past relevant work, based
on the VE’s testimony that Plaintiff “would not be able to perform all of the requirements of her
past work given the limitations of her residual functional capacity.” AR 55. Accordingly, the
ALJ proceeded to step five. Based on Plaintiff’s age, education, work experience, and RFC, the
ALJ found that Plaintiff could perform other jobs that exist in significant numbers in the national
economy. AR 55-56. These jobs, as described by the VE, Ms. M. Diane Weber, included retail
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counter clerk, garment bagger, and office helper. AR 55-56. Finally, the ALJ found that
Plaintiff had not been under a disability, as defined by the Act, during the relevant time period
and she denied the claim. AR 56.
V.

ANALYSIS
As set forth below, Plaintiff fails to marshal sufficient support from facts or case law to

establish that the ALJ applied incorrect legal standards or that her decision is unsupported by
substantial evidence. Consequently, her Motion must be denied. The Court’s reasoning as to
each of Plaintiff’s three claims will be discussed seriatim.
A. The ALJ Adequately Developed the Record
As her first ground for remand, Plaintiff contends that the ALJ failed in her duty to
develop the record. Pl.’s Mot. 8-10 (citing Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir.
1993); Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999)). She reasons that during her
direct examination, “she revealed she had been getting trigger point injections with Dr. Cisneros
at First Choice.” Id. at 8 (citing AR 72). Accordingly, the ALJ urged Plaintiff’s representative
to transmit the records to her both during Plaintiff’s direct examination and at the conclusion of
the hearing. Id. (citing AR 72-73, 82-83). Yet, Plaintiff opines, “[t]here are no records from Dr.
Cisneros or First Choice in the record.” Id. (citation omitted).
The Commissioner responds that “[a]n ALJ’s duty to develop the record is not
unqualified.” Def.’s Resp. 11, ECF No. 25 (citing Wall v. Astrue, 561 F.3d 1048, 1063 (10th
Cir. 2009)). She explains that “[w]hile the agency is obligated to develop a claimant’s complete
medical history for at least the 12 months preceding her application for disability benefits, 20
C.F.R. § 404.1512(d), it is the claimant who holds the burden to furnish the agency sufficient
medical evidence to support her allegations of disability.”

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Id. at 9 (citing 42 U.S.C. §

423(d)(5)(A)). Turning to the proceeding itself, the Commissioner recounts that the ALJ twice
requested the Dr. Cisneros records from Plaintiff’s representative and even agreed to review
them, once submitted, before rendering her opinion. Id. at 10. Only after allowing Plaintiff’s
case to remain pending for six months while awaiting the records -- and yet never receiving them
-- did the ALJ ultimately issue her unfavorable decision. Id. The Commissioner notes that even
after hiring her present counsel of record, Plaintiff has never submitted the Dr. Cisneros records
to the SSA. Id. at 11. Alternatively, the Commissioner argues that treatment records from Dr.
Cisneros would not have influenced the ALJ’s disability determination. Id. at 10-11.
“The burden to prove disability in a social security case is on the claimant, and to meet
this burden, the claimant must furnish medical and other evidence of the existence of the
disability.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004). Nonetheless, “[t]he ALJ
has a basic obligation in every social security case to ensure that an adequate record is developed
during the disability hearing consistent with the issues raised.” Henrie v. U.S. Dep’t of Health &
Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993) (citation omitted). That duty, however, “is
one of inquiry and factual development. The claimant continues to bear the ultimate burden of
proving that she is disabled under the regulations.” Westbrook v. Massanari, 26 F. App’x 897,
903 (10th Cir. 2002) (unpublished) (citing Henrie, 13 F.3d at 361).
Here, Plaintiff clearly attempts to have it both ways. On the one hand, Plaintiff pleads
reversible error for the lack of medical records that she contends would support a finding of
disability. On the other, neither her representative at the administrative hearing nor her present
counsel, in their several combined years of representing Plaintiff, have ever submitted these
purportedly critical records for review.

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The Commissioner properly argues, in contrast to what Plaintiff would have this Court
find, that the ALJ’s duty to develop the record “is not absolute.” See Def.’s Resp. 11 (citing
Wall, 561 F.3d at 1063). Rather, “[t]he key inquiry is whether the ALJ developed the record
sufficiently to reflect the nature of the claimant’s impairments, the on-going treatments and
medications the claimant is receiving, and the impact of the impairments on the claimant’s daily
activities.” Sparks v. Chater, 107 F.3d 21 (10th Cir. 1997) (citing Thompson v. Sullivan, 987
F.2d 1482, 1492 (10th Cir. 1993)). In this case, the ALJ did all these things. First, she
developed the record sufficiently to describe and evaluate each of Plaintiff’s impairments. See
AR 44-54. Moreover, she specifically mentioned Plaintiff’s trigger point injection treatment as
part of that evaluation. See AR 50. Most importantly, even without the Dr. Cisneros records,
she was able to competently analyze the minimal impact of Plaintiff’s impairments on her
activities of daily living. See AR 49-54.
Ultimately, Plaintiff’s failure to produce the Dr. Cisneros records cannot be attributed to
the ALJ. The ALJ diligently sought the records from Plaintiff, through her representative, and
held the record open to review them before rendering her decision. To now fault the ALJ for not
including the records in her decision is tantamount to the scenario the Tenth Circuit confronted
in Maes v. Astrue, where the court held that “[a]lthough the ALJ has the duty to develop the
record, such a duty does not permit a claimant, through counsel, to rest on the record - indeed, to
exhort the ALJ that the case is ready for decision - and later fault the ALJ for not performing a
more exhaustive investigation.”

522 F.3d 1093, 1097 (10th Cir. 2008).

Based on Maes,

Plaintiff’s failure to adduce the records as requested now precludes her from claiming legal error
based on their omission from the ALJ’s decision. Therefore, this claim must be denied.

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B. The ALJ Properly Evaluated Opinion Evidence from Medical Providers
Next, Plaintiff argues that the ALJ improperly evaluated the opinions of three separate
medical providers. For the reasons detailed below, the Court will deny each of these claims.
1. Myrna M. Gallegos, Certified Nurse Practitioner (“CNP”)
To begin, Plaintiff alleges that “Nurse Gallegos’s opinions were improperly rejected.”
Pl.’s Mot. 10. Her argument is two-fold. First, she believes “[t]he ALJ’s reasoning for rejecting
Nurse Gallegos’s opinion is contrary to the regulations and rulings,” and specifically, Social
Security Ruling (“SSR”) 06-03p.

Id. at 10-11.

Additionally, she challenges the ALJ’s

underlying rationale for rejecting Nurse Gallegos’s opinion, faulting the ALJ both for finding
Nurse Gallegos’s opinion “vague as to what amount [Plaintiff] can lift, carry, push and or pull,”
AR 54, and for being “not consistent with the overall medical record or the above residual
functional capacity.” Pl.’s Mot. 11-12.
The Commissioner responds that the ALJ advanced “a number” of permissible reasons
for allocating Nurse Gallegos’s opinion little weight.

Def.’s Resp. 13.

Furthermore, she

contends that these reasons comport with the provisions of SSR 06-03p. Id. The Commissioner
explains, “[the ALJ] reasonably noted that [Nurse Gallegos’s] opinion was vague, noting that it
did not provide limitations on what Plaintiff could lift, carry, push, or pull.” Id. (citing AR 54).
The Commissioner then describes, through citations to the record, how Nurse Gallegos’s opinion
concerning Plaintiff’s impairments conflicted with the medical records compiled by Nurse
Gallegos. Id. at 14. In so doing, the Commissioner avers “the ALJ provided specific and
supportable reasons to place only little weight on Nurse Gallegos’s opinion.” Id.
SSR 06-03p was promulgated to resolve how the Social Security Administration would
consider opinions from sources who are not “acceptable medical sources.” The Ruling clarifies

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that the distinction between “acceptable medical sources” and other health care providers is
important for three reasons: first, evidence from “acceptable medical sources” is needed to
establish the existence of a medically determinable impairment; second, only “acceptable
medical sources” can provide medical opinions; and third, only “acceptable medical sources” can
be considered treating sources whose medical opinions may be entitled to controlling weight.
SSR 06-03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006).

The Ruling identifies nurse

practitioners as “other sources” whose evidence may be used “to show the severity of the
individual’s impairment(s) and how it affects the individual’s ability to function.” Id. at *2
Information from “other sources,” however, cannot establish the existence of an impairment. Id.
SSR 06-03p provides that the factors set forth in 20 C.F.R. §§ 404.1527(d) and
416.927(d) (2016) can be applied to opinion evidence from “other sources.” Id. These factors
include:
how long the source has known and how frequently the source has seen
the individual; how consistent the opinion is with other evidence; the
degree to which the source presents relevant evidence to support an
opinion; how well the source explains the opinion; whether the source has
a specialty or area of expertise related to the individual’s impairment(s);
and any other factors that tend to support or refute the opinion.
Id. An adjudicator “generally should explain the weight given to opinions from these ‘other
sources’” or should otherwise discuss the evidence in a manner that permits a claimant or
subsequent reviewer “to follow the adjudicator’s reasoning.” Id. at *6.
The undersigned finds that the ALJ did not err in her treatment of Nurse Gallegos’s
opinions. The Tenth Circuit has held that all that is required from an ALJ are “good reasons”
when discussing the weight afforded to an opinion from a nurse practitioner. See Nichols v.
Astrue, 341 F. App’x 450, 454 (10th Cir. 2009) (unpublished) (citing Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007)). Further, these “good reasons” may properly derive from the
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application of the §§ 404.1527(d) and 416.927(d) factors to a nurse practitioner’s opinions. “It is
not necessary, however, for the ALJ to address each factor expressly or at length.” Nichols, 341
F. App’x. at 453 (quoting SSR 06-03p).
In this case, the ALJ explained that she gave Nurse Gallegos’s opinions “little weight”
primarily because she “is a nurse practitioner and not a doctor.” AR 54. This evaluation was
appropriate, as it explained why the ALJ discredited Nurse Gallegos’s assessment that Plaintiff
had “chronic medical conditions” including “major depression, fibromyalgia, osteoarthritis of
multiple joints and back problems,” which the ALJ had detailed in the two preceding sentences.
AR 53-54. For purposes of the Act, Nurse Gallegos was not a competent medical source to
diagnose these impairments. See SSR 06-03p, 2006 WL 2329939, at *2. Additionally, the ALJ
faulted Nurse Gallegos’s opinion for being “vague as to what amounts [Plaintiff] can carry, push
and or pull.” AR 54. Although Plaintiff asserts “[t]he ALJ could have also re-contacted Nurse
Gallegos for additional information,” Pl.’s Reply 3, ECF No. 26, that contact would only have
been necessary if the ALJ had “insufficient evidence to determine” whether Plaintiff was
disabled. See 20 C.F.R. § 404.1520b(c) (2016). That was not the case here, as the ALJ turned to
Nurse Gallegos’s own treatment notes, in tandem with Plaintiff’s statements about her activities
of daily living, to determine Plaintiff was not disabled. In fact, the ALJ’s review of those
treatment notes led to the third basis for discrediting Nurse Gallegos opinion, in that the notes
did not support Nurse Gallegos’s opinion concerning Plaintiff’s impairments. See Castellano v.
Sec’y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (discounting treating
physician opinion which was unsupported by his own notes). Each of the above represents a
“good reason” for discounting Nurse Gallegos’s opinion, and, under Tenth Circuit precedent,

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“[n]othing more was required.” See Oldham, 509 F.3d at 1258. Therefore, the Court will deny
this claim.
2. Dr. Paula Hughson, M.D., Agency Consultative Examiner
Next, Plaintiff argues that the ALJ improperly accorded only “some weight” to the
opinions of Dr. Paula Hughson, the consultative psychiatrist. Pl.’s Mot. 13-14. Following an
evaluation of Plaintiff on January 3, 2013, Dr. Hughson completed both a “Consultative
Psychiatric Examination Report” and a separate checkbox-style form entitled “Statement of
Opinion of Abilities (Psychiatric Only).”

AR 370-75.

On the form, Dr. Hughson noted

numerous mild mental limitations, and one moderate limitation in Plaintiff’s “ability to carry out
instructions.” AR 375. From that singular limitation, Plaintiff suggests the ALJ “supplie[d]
flawed reasoning to support her findings . . . [and] did not explain how Dr. Hughson’s opinion or
other medical evidence of record supports her RFC that [Plaintiff] can make simple decisions
with few workplace changes.” Id. at 13. Indeed, by her account, “the ALJ’s failure to evaluate
properly the opinion of Dr. Hughson requires reversal and remand.” Id. at 14.
The Commissioner attacks this claim on two grounds. First, she posits that alongside the
opinion of Dr. Hughson, the ALJ accorded “great weight” to the non-examining state agency
consultants, Dr. Dan Cox, M.D., and Dr. Susan Daugherty, Ph.D., AR 54, both of whom opined
that “Plaintiff was capable of understanding, remembering, and carrying out simple and detailed
instructions.”

Def.’s Resp. 15 (citing AR 90-92 (Dr. Cox), AR 121-22 (Dr. Daugherty)).

Further, the Commissioner highlights how the ALJ “only gave ‘some weight’ to Dr. Hughson’s
opinion[,] noting that she only gave Dr. Hughson’s GAF score of 55 weight in relation to
Plaintiff’s concentration.” Id. (citing AR 54). Thus, she reasons, albeit obliquely, that the RFC
ultimately crafted by the ALJ is “[c]onsistent with Dr. Hughson’s opinion.”

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Id.

In the

alternative, the Commissioner argues that the one moderate limitation identified by the ALJ was
ascribed in “the context of considering whether Plaintiff’s impairments met or equaled a listing.”
Id. at 16. As a consequence, she contends “it was not inconsistent for the ALJ to find Plaintiff
had moderate limitations in concentration, persistence, and pace when considering whether her
impairments met or equaled a listing, but then assess [a] residual functional capacity limiting
Plaintiff only to simple decisions with few workplace changes.” Id. (internal citations omitted).
The ALJ committed no error here, despite the parties’ inability to identify why.

The

Tenth Circuit’s decision in Smith v. Colvin makes clear that “an administrative law judge can
account for moderate limitations by limiting the claimant to particular kinds of work activity.”
821 F.3d 1264, 1269 (10th Cir. 2016) (citing Vigil v. Colvin 805 F.3d 1199, 1204 (10th Cir.
2015)). In Smith, the non-examining state physician assessed a similar “moderate limitation” in
the claimant’s ability to “accept instructions and respond appropriately to criticism by
supervisors.” Id. at 1268. The ALJ omitted that limitation in the claimant’s RFC and found
instead that the claimant “(1) could not engage in face-to-face contact with the public and (2)
could engage in only simple, repetitive, and routine tasks.” Id. at 1269.

“Through these

findings,” the Tenth Circuit held that “the [ALJ] incorporated the functional limitations of [the
claimant’s] moderate nonexertional limitations.” Id.
Under the rule in Smith v. Colvin, the ALJ’s RFC finding in the present case accounts for
the moderate limitation identified by Dr. Hughson. Moreover, on a functional level, by limiting
Plaintiff to light work, simple decisions, and few workplace changes, the RFC limits Plaintiff to
unskilled work, see AR 55-56, where a claimant need only understand, remember, and carry out
“simple instructions.” SSR 96-9P, 1996 WL 374185, at *9 (July 2, 1996). This only reinforces
the wisdom of Smith v. Colvin, and lends credence to this Court’s decision to deny this claim.

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3. Ms. Charlene Chavez, Vocational Rehabilitation Counselor
Lastly, Plaintiff claims “[t]he ALJ erred by failing to discuss” the opinion of Ms.
Charlene Chavez, a vocational rehabilitation counselor. Pl.’s Reply 4. She claims “the ALJ
indicated she knew” that Plaintiff had been to the Division of Vocational Rehabilitation, but
failed to discuss Ms. Chavez’s opinion that Plaintiff had “been unsuccessful in securing her
employment due to her disability being too severe.” Pl.’s Mot. 14. Plaintiff insists that this
opinion should have been evaluated under SSR 06-03p as an “other source,” and further, that the
ALJ’s failure to do so necessitates remand.
The Commissioner responds that Ms. Chavez’s letter represents an impermissible
intrusion into the province of the ALJ to determine disability. See Def.’s Resp. 17. Further, she
argues the ALJ “is not required to explicitly discuss a non-medical opinion so long as it is
evident she considered it.” Id. (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 11663 (10th Cir.
2012)). Finally, the Commissioner believes “this Court should take her word for it” when the
ALJ states she considered the entire record. Id. (citing Flaherty v. Astrue, 515 F.3d 1067, 1071
(10th Cir. 2007)).
Although the Court declines the Commissioner’s invitation to merely “take the ALJ’s
word for it,” the Court still cannot find reversible error here. Under SSR 06-03p, information
from “other sources” like Ms. Chavez “cannot establish the existence of a medically
determinable impairment,” but rather, may only “provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p, 2006 WL
2329939, at *2. Nonetheless, Ms. Chavez’s letter clearly goes beyond providing insight about
Plaintiff’s impairments and how they affect her. See AR 402. In fact, the letter not only
concludes that Plaintiff has limitations - including depression, fibromyalgia, osteoarthritis, and

15

back problems - but goes so far as to state that Plaintiff has been unsuccessful in securing
employment as a direct result of these limitations. AR 402. And yet, the letter goes even
further. Prior to its conclusion, the letter communicates that Plaintiff’s case could be closed
because her disability is “too severe.” AR 402. Notwithstanding Ms. Chavez’s obvious opinion
regarding Plaintiff’s disability, the ultimate issue of disability is not for a vocational
rehabilitation counselor to determine. Governing regulations allocate that authority exclusively
to the ALJ. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Beyond her comments regarding
Plaintiff’s disability, Ms. Chavez’s letter provided nothing for the ALJ to review under the
relevant “other source” standard. The record makes clear that the ALJ considered Ms. Chavez’s
letter, 2 and based on its non-medical, non-relevant content, regulations required nothing more.
See Keyes-Zachary, 695 F.3d at 1163-67. The Court denies this claim.
C. The ALJ’s Step Five Finding Is Supported by Substantial Evidence
Lastly, Plaintiff contends that the ALJ’s step five finding is not supported by substantial
evidence. She frames the challenge by noting that, at step five of the sequential evaluation, the
Commissioner carries the burden “to show that the claimant is able to perform other work
existing in significant numbers in the national economy.”

Pl.’s Mot. 14.

By Plaintiff’s

assessment, “[t]he numbers cited by the ALJ in the decision do not correspond to the jobs of
counter clerk, garment bagger, and office helper, but rather a larger group of occupations those
jobs fall into.” Id. at 16. Thus, she reasons, “[w]hen the ALJ concluded that the number of jobs
was significant, she was relying on incorrect figures.” Id. (citing AR 55-56). Consequently, she

2

On direct examination, the ALJ asked Plaintiff, “And you recently went to division of vocational rehabilitation; is
that correct?” AR 68. This question, asked by the ALJ on March 25, 2014, correlates to the letter drafted by Ms.
Chavez one week earlier, on March 18, 2014. Compare AR 61 (March 25, 2014 – date of hearing), with AR 402
(March 18, 2014 – date of Ms. Chavez’s letter). Had the ALJ not reviewed the letter, she would have no basis for
this unusual question.

16

claims “reversal and remand are required,” Pl.’s Mot. 17, and cites to Trimiar for an exposition
of the factors that should underpin the ALJ’s ultimate decision. Id. at 14-15 (citing Trimiar v.
Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992) (providing the following factors to consider at
step five in determining whether work exists in significant numbers: (1) the level of claimant’s
disability; (2) the reliability of the vocational expert’s testimony; (3) the distance claimant is
capable of travelling to engage in the assigned work; (4) the isolated nature of the jobs; and (5)
the types and availability of such work)).
The Commissioner contests Plaintiff’s claim, and adds that “the ALJ may rely upon
vocational expert testimony or information from various occupational sources” to determine
whether work exists in the national economy in significant numbers. Def.’s Resp. 18 (citing 20
C.F.R. § 404.1566(d) (2016)). She further explains that the Dictionary of Occupational Titles
(“DOT”) 3 “provides significant information about the exertional requirements of a job, but does
not contain information regarding the frequency of a job in the national economy.”

Id.

(emphasis added). Accordingly, she states, “the vocational expert identified the number of jobs
within the national economy based upon the [O]ccupational [E]mployment [S]urvey, 4 but then
carved out the number of jobs for each position that were full-time.” Id. (citing AR 80). Lastly,
the Commissioner notes the VE “provided a third number for each job identified that she stated
represented the DOT number for the job,” but challenges Plaintiff’s notion that the ALJ could
3

The DOT includes detailed descriptions of jobs (classified by their exertional and skill requirements) that exist in
the national economy. 20 C.F.R. § 220.134 (2016). Regulations require the Commissioner to take administrative
notice of job information provided by the DOT. 20 C.F.R. § 404.1566 (2016).
4

The Occupational Employment Statistics (“OES”) Survey is a federal-state cooperative program between the U.S.
Department of Labor’s Bureau of Labor Statistics and the state workforce agencies that provides national
occupational employment and wage rate estimates. See Anders v. Colvin, No. 2:14-CV-00610-EJF, 2015 WL
5555745, at *13 (D. Utah Sept. 18, 2015) (unpublished) (citation and internal quotation marks omitted); Guidry v.
Astrue, No. 08-CV-01846-PAB, 2009 WL 4884282, at *5 (D. Colo. Dec. 10, 2009) (unpublished). Job data in the
OES naturally varies from the DOT, as the OES classifies jobs by census codes, known as Standard Occupational
Classification (“SOC”) codes, rather than DOT codes. McDonald v. Colvin, No. CIV-14-220-SPS, 2015 WL
5749392, at *2 (E.D. Okla. Sept. 30, 2015) (unpublished).

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only rely on that third data set. Id. Rather, she contends Plaintiff has cited “no authority for that
proposition,” and instead, she urges that case law “supports a more common sense approach” to
deciding these issues. Id. at 18-19.
At its core, this claim arises from the testimony of VE Weber, who testified that someone
with Plaintiff’s assigned RFC could perform three separate jobs. See AR 79-81. The first she
identified was “counter clerk,” DOT number 249.366-010. She stated, “[w]ithin the national
economy there are 434,000 jobs within the [O]ccupational [E]mployment [S]urvey; 246,000 of
those are considered full time; and 1,600 are representing the DOT number for the counter
clerk.” AR 80 (emphasis in original). She then advanced the position of “garment bagger,”
DOT number 920.687-018. She observed, “[w]ithin the national economy there are 660,600 jobs
within the [O]ccupational [E]mployment [S]urvey; 529,000 of those are considered full time;
and 800 are representing the garment bagger DOT.” AR 80 (emphasis in original). Lastly, she
suggested that Plaintiff could work as an “office helper,” DOT number 239.567-010. AR 80. As
to this occupation, she indicated that “[w]ithin the national economy there are 77,000 jobs within
the occupational employment group; 58,000 are full time; 3,900 are representing the office
helper.” AR 80. In sum, between the three jobs, the VE testified that there were 1,171,600 jobs
available to Plaintiff within the national economy, of which 833,000 were full time, and 6,300
represented jobs squarely within Plaintiff’s recommended DOT numbers. See AR 80.
The VE’s trifurcation between jobs within the national economy, full-time jobs in the
national economy, and jobs “representing” the specific DOT number is a peculiar break from the
customary terminology in these cases. Ultimately, whether by their oddity, or by the ALJ’s
desire to simplify the numbers, the VE’s delineations did not appear in the ALJ’s decision. AR
55-56. Instead, the ALJ recounted that Plaintiff could “work as a counter clerk in retail, SVP 2,

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unskilled DOT#249-366-010 (433,000), a garment bagger, SVP 1, unskilled, DOT#920-687-018
(660,000) and an office helper, SVP 2, unskilled DOT#239-567-010 (77,000).” This abbreviated
reference to full-time OES numbers, however, also deviates from the mean in cases filed in the
district courts across the Tenth Circuit, where both the ALJ and the reviewing court typically rely
on VE testimony about two categories of jobs: (1) those existing in the national economy, and
(2) those existing in the regional economy or the state of filing. See, e.g., Order, Sep. 29, 2016,
ECF No. 25, at 30, Ryan v. Colvin, Civ. No. 15-740 KBM (D.N.M. filed Aug. 24, 2015)
(unpublished) (describing VE testimony on jobs in the national economy and regional economy);
Pursley v. Colvin, No. CIV-15-276-SPS, 2016 WL 5408154, at *2 (E.D. Okla. Sept. 28, 2016)
(unpublished) (noting ALJ’s finding that claimant could perform other work in the regional or
national economy); Kummer v. Colvin, No. 2:15-CV-00318-DBP, 2016 WL 4691588, at *5 (D.
Utah Sept. 7, 2016) (unpublished) (discussing VE testimony of positions available nationally and
regionally); Wright v. Colvin, No. CIV-15-558-BMJ, 2016 WL 4077244, at *2 (W.D. Okla. July
29, 2016) (noting the ALJ’s reliance on VE testimony to find jobs existed in significant numbers
in the regional and national economies). The focus on jobs in either the national economy or
regional economy is a reflection of unique Tenth Circuit case law, which allows an ALJ to make
step five findings based on a determination of whether work exists in significant numbers in the
regional or national economy, while still acknowledging “that the controlling statutes, federal
regulations, and case law all indicate that the proper focus generally must be on jobs in the
national, not regional, economy.” Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009).
Notwithstanding the novelty of the way in which job numbers were calculated in this
case, the Court cannot accept Plaintiff’s position that the ALJ could only rely on the VE’s
testimony “representing” the specific DOT number. See Pl.’s Mot. 16-17. To the contrary, the

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Commissioner has aptly noted that Plaintiff “cites to no authority for that proposition.” Def.’s
Resp. 18. In fact, what authority Plaintiff has cited to in her Reply does not support her position.
See Pl.’s Reply 2 (citing Carpenter v. Astrue, 537 F.3d 1264, 1270 (10th Cir. 2008)). The
Carpenter court was not concerned with an ALJ’s use of OES groupings data to support a
finding of sufficient jobs in the national economy, but rather, with the VE’s failure to identify
specific jobs, according to DOT numbers, that the claimant could perform in the national
economy. See Carpenter, 537 F.3d at 1270. This was particularly important in Carpenter,
because the ALJ had found the claimant to have mild mental retardation, id. at 1265, and the
court worried that “[a] proper determination of the combined impact of her impairments on her
ability to work underlies a proper finding of her mental and physical residual functional
capacities, which is necessary to correctly phrase the ALJ’s hypothetical questions to the VE.”
Id. at 1270. At no point does the opinion discuss job numbers in the national economy.
Plaintiff’s argument is further undercut by the fact that numbers approximating OES
groupings are routinely used throughout the Tenth Circuit to support step five findings. In fact,
each of the three jobs proposed by the VE – counter clerk, garment bagger, and office helper have appeared previously in scores of cases within the circuit, and in each, the testimony
concerning the relevant number of jobs in the national economy approximates the numbers for
the OES groupings in the case at bar. See e.g., Wendelin v. Astrue, 366 F. App’x 899, 903 (10th
Cir. 2010) (unpublished) (noting 44,591 counter clerk jobs nationally); Taylor v. Astrue, No. 11CV-01425-CMA, 2012 WL 1520179, at *7 (D. Colo. Apr. 30, 2012) (unpublished) (citing
50,600 counter clerk jobs nationally); Luttrell v. Astrue, No. 08-CV-357-TLW, 2010 WL
3824564, at *8 (N.D. Okla. Sept. 27, 2010) (unpublished), aff’d, 453 F. App’x 786 (10th Cir.
2011) (discussing 75,000 counter clerk jobs nationally); Order, Feb. 11, 2013, ECF No. 27, at 10,

20

Franco v. Colvin, Civ. No. 12-819 WPL (D.N.M. filed July 27, 2012) (unpublished) (identifying
467,010 garment bagger jobs in the national economy, and 1,110 jobs in the regional (State of
New Mexico) economy); Hernandez v. Colvin, 567 F. App’x 576, 581 (10th Cir. 2014)
(unpublished) (identifying 158,110 office helper jobs in the national economy); Long v. Colvin,
No. CIV-14-402-F, 2015 WL 5692318, at *13 (W.D. Okla. Sept. 11, 2015) (unpublished), report
and recommendation adopted, No. CIV-14-402-F, 2015 WL 5708388 (W.D. Okla. Sept. 28,
2015) (finding 140,000 office helper jobs in the national economy); Whalen v. Colvin, No. 14CV-01290-CBS, 2016 WL 1168485, at *2 (D. Colo. Mar. 23, 2016) (unpublished) (reporting
89,460 office helper jobs in the national economy). Thus, it stands to reason that courts in this
circuit routinely accept numbers correlating to OES groupings to substantiate job numbers in the
national economy. To conclude in the converse and accept Plaintiff’s argument, this Court
would have to discount findings from across both the district courts in the Tenth Circuit and from
the Tenth Circuit itself. This, the Court cannot and will not do.
The Court finds no fault in the VE using OES grouping data to describe quantities of jobs
in the national economy and no error in the ALJ using that data to support Plaintiff’s finding of
nondisability. The Court finds the ALJ’s step five analysis to be supported by substantial
evidence, and as a consequence, this claim must be denied.
VI.

CONCLUSION
For the reasons articulated above, the Court holds that the ALJ’s decision was supported

by substantial evidence and the correct legal standards were applied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand to
Agency for Rehearing, With Supporting Memorandum [ECF No. 24] IS HEREBY DENIED.

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IT IS FURTHER ORDERED that the Commissioner’s final decision is HEREBY
AFFIRMED and that the instant cause be DISMISSED.
IT IS SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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