Kohler v. Social Security Administration

Filing 25

REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez. Objections to R&R due by 2/1/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

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

RUSTY D. KOHLER,
Plaintiff,

v.

No. CIV-16-0170 MCA/LAM

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

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Plaintiff’s Opening Brief (Doc. 19) filed on
August 2, 2016, which this Court construes as a motion to reverse and remand this case to the
Commissioner (hereinafter “motion”). On October 31, 2016, Defendant filed a response to the
motion (Doc. 23) and, on November 15, 2016, Plaintiff filed a reply (Doc. 24). On July 28, 2016,
United States District Chief Judge M. Christina Armijo issued an order referring this case to the
undersigned to hold hearings, perform legal analysis, and prepare proposed findings and a
recommended disposition, if necessary.
response, reply, and relevant law.

1

[Doc. 17].

The Court has reviewed the motion,

Additionally, the Court has meticulously reviewed and

Within fourteen (14) days after a party is served with a copy of these proposed findings and
recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2), file
written objections to such proposed findings and recommended disposition. A party must file any objections
with the clerk of the United States District Court for the District of New Mexico within the fourteen-day period
allowed if that party wants to have appellate review of the proposed findings and recommended disposition.
If no objections are filed, no appellate review will be allowed. Pursuant to Fed. R. Civ. P. 72(b)(2), a party
may respond to another party’s objections within fourteen (14) days after being served with a copy of the
objections.

considered the entire administrative record. [Doc. 10]. For the reasons set forth below, the
Court recommends that Plaintiff’s motion (Doc. 19) be DENIED and the decision of the
Commissioner of Social Security (hereinafter “Commissioner”) be AFFIRMED.

I. Procedural History
On August 17, 2012, Plaintiff protectively filed an application for Disability Insurance
Benefits (hereinafter “DIB”) (Doc. 10-9 at 2-5), alleging the onset of his disability to be
September 12, 2010 (id. at 4). Plaintiff claimed disability due to spinal issues that necessitated
several vertebral fusions. [Doc. 10-10 at 16]. Plaintiff’s application was denied at the initial
level on November 14, 2012 (Doc. 10-6 at 2), and at the reconsideration level on March 12, 2013
(id. at 23).

Pursuant to Plaintiff’s request (Doc. 10-7 at 12-13), Administrative Law Judge

Douglas S. Stults (hereinafter “ALJ”) conducted a hearing on December 2, 2013 (Doc. 10-5
at 6-53). Plaintiff appeared at the hearing, represented by attorney M. Scott Ash,2 and testified.
Id. at 10-43. Vocational Expert Margaret Kelsay (hereinafter “VE Kelsay”) also testified. Id.
at 43-52. On March 24, 2014, the ALJ issued his decision, finding that, under the relevant
sections of the Social Security Act, Plaintiff was disabled from January 12, 2012 through
January 13, 2013, but that, beginning on January 14, 2013, Plaintiff had “medically improved” and
was no longer disabled from that date until the date of the decision. [Doc. 10-4 at 25-26]. On
April 23, 2014, Plaintiff requested that the Appeals Council review the ALJ’s decision.
[Doc. 10-3 at 18]. On August 24, 2015, the Appeals Council denied review on the ground that it

2

Mr. Ash was appointed to represent Plaintiff on August 20, 2012. [Doc. 10-7 at 2]. He was not identified
by name at the hearing. Beginning on November 3, 2015, attorney Timothy M. White was appointed to represent
Plaintiff. [Doc. 10-3 at 5].

2

had “found no reason under our rules to review the [ALJ]’s decision. Id. at 12. This was the
final decision of the Commissioner. On March 9, 2016, pursuant to an extension of time to file a
civil action granted by the Appeals Council on February 3, 2016 (Doc. 10-3 at 2), Plaintiff filed his
complaint in this case (Doc. 1).

II. Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards were applied.
Maes v.

Astrue,

522 F.3d

1093,

1096

(10th Cir. 2008)

(citing

Sec’y of Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)).

Hamilton v.
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.

See 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).

Courts should

meticulously review the entire record but should neither re-weigh the evidence nor substitute its
judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118 (citation and quotation marks
omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d
at 760 (citation and quotation marks omitted). 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 (citation and quotation marks omitted);
Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted).
3

While a court may not

re-weigh the evidence or try the issues de novo, its examination of the record as a whole must
include “anything that may undercut or detract from the ALJ’s findings in order to determine if the
substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005)
(citations omitted). “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent [the ALJ]’s findings from being supported by substantial evidence.” 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)).

III. Applicable Law and Sequential Evaluation Process
For purposes of DIB, a person establishes a disability when he or 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);

20 C.F.R. § 404.1505(a). In light of this definition for disability, a five-step sequential evaluation
process (SEP) has been established for evaluating a disability claim. 20 C.F.R § 404.1520;
Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has
the burden to show that: (1) the claimant is not engaged in “substantial gainful activity;” and
(2) the claimant has a “severe medically determinable . . . impairment . . . or a combination of
impairments” that has lasted or is expected to last for at least one year; and either (3) the claimant’s
impairment(s) either meet(s) or equal(s) one of the “Listings” of presumptively disabling
impairments; or (4) the claimant is unable to perform his “past relevant work.” 20 C.F.R.
§ 404.1520(a)(4)(i–iv); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the
burden of proof shifts to the Commissioner to show that the claimant is able to perform other work
4

in the national economy, considering his residual functional capacity (hereinafter “RFC”), age,
education, and work experience. Grogan, 399 F.3d at 1261.

IV. Plaintiff’s Age, Education, Work Experience,
and Medical History; and the ALJ’s Decision
Plaintiff was born on August 20, 1964, and was 47 years old, which is defined as a
“younger person” aged 18-49 (20 C.F.R. § 404.1563(c)), on the alleged disability date of
September 12, 2011. [Doc. 10-9 at 4]. Plaintiff has a high school education and completed an
Associate of Arts degree in animal science, as well as a carpentry certificate from a
vocational-technical school. [Doc. 10-5 at 11]. Prior to filing his disability claim, Plaintiff had
worked as: a funeral attendant and an apprentice embalming technician, which were medium and
heavy work, respectively; a flooring sales representative, which was light work; a manufactured
housing salesman, which is typically light work; and a retail store manager, which is typically light
work, but was described by Plaintiff as heavy work, as he performed it. Id. at 44-45. Plaintiff
claims disability due to an extensive history of lumbar and cervical spine disorders that resulted in
a series of fusion surgeries, beginning in 1997. [Doc. 19 at 1-2]. Plaintiff’s medical records
include: orthopedic reports dated October 27, 2010 through October 7, 2011, by Michael H.
Wright, M.D. and Khalid Khan, M.D. (Doc. 10-13 at 2-15, 18-19); examination report, dated
May 7, 2013 by Andrew C. John, M.D. (Doc. 10-17 at 11-21); treatment records for the period
from September 8, 2011 through February 25, 2013, from Robert L. Remondino, M.D.
(Doc. 10-18 at 5 through Doc. 10-19 at 37); and examination report, dated January 11, 2012, by
Robert Wienecke, M.D. (Doc. 10-18 at 41-42). Where relevant, Plaintiff’s medical records are
discussed in more detail below.

5

At step one of the five-step SEP, the ALJ found that Plaintiff had engaged in substantial
gainful activity from the alleged onset date of September 12, 2010, through January 5, 2011, when
he stopped working as a store manager for Family Dollar Store. [Doc. 10-4 at 9-10]. Therefore,
the ALJ found that Plaintiff was not disabled during that time period. Id. at 10. Also at step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity from January 6, 2011
until he became disabled on January 11, 2012. Id. At step two, for the same period, the ALJ
found that Plaintiff had the following severe impairments: “disorders of the cervical and lumbar
spine, discogenic and degenerative, September 2001 fusion L3-4, December 2000 fusion L4-5,
and fusion C5-7; and, obesity.” Id. In addition, the ALJ found that, although Plaintiff had been
treated for mild coronary artery disease in March 2011, there was no evidence of any ongoing
treatment of that condition, and no continued diagnosis of that condition after the alleged disability
date. Id. The ALJ found that Plaintiff’s hypertension and restless leg syndrome were well
controlled by medication, and that other treatments Plaintiff had received were minimal and the
conditions were temporary. Id. at 10-11. Finally, the ALJ found that Plaintiff had medically
determinable, but non-severe, mental impairments of depression and anxiety. Id. at 11.
At the third step, for the same January 6, 2011 through January 11, 2012 period, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. § 404,
Subpt. P, Appx. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). Id. at 12. In so finding, the
ALJ considered Listing 1.04 with respect to spine disorders, Soc. Sec. Rep. 02-01 with respect to
obesity, and the musculoskeletal impairment listings generally. Id. at 12-13.

6

Before step four, the ALJ determined Plaintiff’s RFC for the period from January 6, 2011
through January 11, 2012, concluding that he had the residual functional capacity to:
perform a range of “light work,” as defined in 20 CFR 404.1567(b), except that
[Plaintiff] could only: perform no work overhead; use his upper extremities
frequently (as opposed to constantly) for reaching, handling, fingering, and feeling;
occasionally climb ramps and stairs, balance, and stoop; never kneel, crouch, crawl,
and climb ropes, ladders, or scaffolds; must avoid concentration [sic] exposure to
vibration; have no more than occasional exposure to workplace hazards, such as
dangerous moving machinery and unprotected heights; and occasionally operate
foot pedals or controls with his bilateral lower extremities.
Id. at 13 (footnote omitted).
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work
from January 6, 2011 through January 11, 2012. Id. at 19. The ALJ based this conclusion on the
fact that the demands of all of Plaintiff’s past relevant work exceeded his current RFC. Id.
Based on that determination, the ALJ proceeded to step five, where he found, based on both
VE Kelsay’s testimony and an assessment by Vocational Expert Christy V. Wilson-Wiles
(hereinafter VE Wilson-Wiles”) (Doc. 10-11 at 3-8), concluding that Plaintiff “had acquired work
skills from past relevant work that were transferable to other occupations with jobs existing in
significant numbers in the national economy” (Doc. 10-4 at 19-20). Based on VE Kelsay’s
testimony, the ALJ found that Plaintiff’s past work skills were transferable to the job of merchant
patroller (DOT3 372.667-038), which is considered to be light semiskilled work. [Doc. 10-4
at 20]. The ALJ also found that Plaintiff would be able to perform light unskilled jobs, such as
gas island cashier (DOT 211.462-010), ticket seller (DOT 211.467-030), and parking lot attendant

3

“DOT” stands for Dictionary of Occupational Titles,
http://www.occupationalinfo.org/contents.html (site last visited on January 6, 2017).

which

is

available

at

(DOT 915.473-010).

Id.

The ALJ determined that the VE’s testimony was “not entirely

consistent with the information contained in the [DOT] in that she supplemented her testimony at
the hearing with her own research, knowledge, and experience of these occupations.”4 Id. at 21.
The ALJ concluded that, “although [Plaintiff]’s additional limitations did not allow [him] to
perform the full range of light work from January 6, 2011, through January 11, 2012, considering
[his] age, education and transferable work skills, a finding of ‘not disabled’ was appropriate under
the framework of Medical-Vocational Rules 202.21 and 202.22 [in 20 C.F.R. § 404,
Subpt. P, Appx. 2].” Id.
The ALJ next found that, while Plaintiff was not disabled prior to January 12, 2012, he
“became disabled on that date and continued to be disabled through January 13, 2013. Id. at 21.
The ALJ found that Plaintiff had the same severe impairments during this time period as in the
previous one, and that none of them were of listing severity. Id. The ALJ determined Plaintiff’s
RFC for the period from January 12, 2012 through January 13, 2013, concluding that he had the
residual functional capacity to:
perform "light work," as defined in 20 CFR 404.1567(b), except that [Plaintiff]
required an average of at least one additional, unscheduled work break daily, of at
least 30 minute duration, at random and unpredictable times, over and above the
morning and afternoon breaks and lunch period as traditionally given; and would
have been absent from the workplace an average of l day every 2 weeks.
Id. at 22. The ALJ found that Plaintiff was unable to perform his past relevant work during this
time period. Id. at 24. Additionally, based on VE Kelsay’s testimony, the ALJ concluded that
there were no jobs in the national economy that Plaintiff could perform with this RFC, and that he
4

VE Kelsay supplemented her testimony by reducing the numbers for the representative jobs that were
available in the United States, based on Plaintiff’s specific RFC. See [Doc. 10-5 at 47].

8

was therefore disabled for the period from January 12, 2012 through January 13, 2013. Id. at 25.
The ALJ then entered findings regarding the period of time from January 14, 2013 through
the date of the decision, March 24, 2014. The ALJ again found that, during this time period,
Plaintiff had the same severe impairments he had had in the preceding periods, and that none of
those impairments, or combination of impairments, was of listing level severity. Id. However,
the ALJ found that Plaintiff’s severe impairments had medically improved as of January 14, 2013,
when Plaintiff’s treating neurosurgeon released him to return to work activity, with limitations.
Id. at 26. The ALJ found that, due to that medical improvement, Plaintiff’s RFC had increased.
Id. at 27. As of January 14, 2013, the ALJ found that Plaintiff had the residual functional capacity
to:
perform “light work,” as defined in 20 CFR 404.1567(b), except [Plaintiff] is able
to stand and/or walk for up to 4 hours total in an 8-hour workday; sit the remainder
of the workday, at least 4 hours; maintain either posture (seated or on his feet) for,
at least, 1 hour at a time; perform no work overhead; use his upper extremities
frequently (as opposed to constantly) for reaching, handling, fingering, and feeling;
occasionally climb ramps and stairs, balance, and stoop; never kneel, crouch, crawl,
and climb ropes, ladders, or scaffolds; must avoid concentration [sic] exposure to
vibration; have no more than occasional exposure to workplace hazards, such as
dangerous moving machinery and unprotected heights; and occasionally operate
foot pedals or controls with his bilateral lower extremities.5
Id. at 27 (hereinafter “RFC 3”). The ALJ then found that Plaintiff was still unable to perform his
past relevant work, but that he could perform the same representative occupations that he had been
able to perform until January 12, 2012, which were merchant patroller, gas island cashier, ticket

5

With the exception of the sit, stand, and walk restrictions, this RFC is identical to the RFC assessed for
Plaintiff in the period from January 6, 2011 to January 11, 2012.

9

seller, and parking lot attendant. Id. at 32-34. Therefore, the ALJ found that Plaintiff’s period of
disability ended on January 14, 2013. Id. at 34.

V. Analysis
In his motion, Plaintiff contends that the ALJ failed to: (1) make proper assessments at
steps four and five of the SEP; (2) properly evaluate medical and “other source” evidence;
(3) protect Plaintiff’s Fifth and Fourteenth Amendment rights; and (4) properly evaluate Plaintiff’s
credibility. [Doc. 19 at 3]. Defendant disputes Plaintiff’s contentions and argues in response
that: (1) Plaintiff’s assertion that the ALJ inappropriately found Plaintiff capable of “light work”
is invalid, and the ALJ properly found that Plaintiff could perform a limited range of light work
(Doc 23 at 13-15); (2) the ALJ reasonably assessed the opinions of Dr. Glass and
VE Wilson-Wiles (id. at 15-16); (3) the ALJ reasonably discounted Plaintiff’s credibility based on
daily activities that were inconsistent with his claims of disabling pain (id. at 16-17); and
(4) Plaintiff’s Constitutional rights were not violated by the VE’s reliance on a journal article to
form her opinion (id. at 17-18). In his reply, Plaintiff states that: (1) Defendant ignores that the
ALJ’s hypothetical RFC “was for a person who can ‘perform light work as defined by the
Regulations’” (Doc 24 at 1); (2) the opinions of both the state agency reviewer and the ALJ result
in a maximum ability to perform only sedentary work, yet no sedentary jobs were discussed, and
the ALJ did not weigh the state agency reviewer’s opinion (id. at 2); (3) Plaintiff did not request
the journal article because he “could not know that access to the article referenced by the VE
would be available to only certain members of a certain organization” (id. at 2-3); and (4) Plaintiff
“cannot be ‘generally credible’ during one period of time with the same [activities of daily living]
that make him not credible during another period of time” (id. at 3).
10

A. Plaintiff’s Ability to Perform a Limited Range of Light Work
In assessments of a claimant’s residual functional capacity (“RFC”), work is classified in
terms of “exertional level,” which represents the range of primary strength activities that it
requires.6 The following activities are considered to be exertional: “sitting, standing, walking,
lifting, carrying, pushing, and pulling.”7 Exertional levels may be classified as sedentary, light,
medium, heavy, or very heavy.8 An RFC that provides that a claimant can provide a “full range of
work” means that he or she can perform “[a]ll or substantially all of the unskilled occupations
existing at an exertional level.”9 In this case, the ALJ assessed Plaintiff capable of light work,10
with varying additional limitations, during all three periods under consideration:

(1) from

September 10, 2010 through January 11, 2012 (“first non-disability period”); (2) from January 12,
2012 through January 13, 2013 (“disability period”); and (3) from January 14, 2013 to the date of
6

POMS DI 25001.001B.21 available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001 (site last
visited January 9, 2017. The Social Security Administration’s Program Operations Manual System (“POMS”) is a
primary source of information used by Administration employees with respect to the processing of claims for Social
Security benefits. POMS DI specifically relates to claims for Title II Disability Insurance Benefits (DIB).
7

Id. at B.20.

8

Id. at B.21.

9

Id. at B.36.

10

“Light work” requires the ability to occasionally lift or carry up to 20 pounds, and frequently lift or carry
up to 10 pounds (POMS DI 25001.001B.21), where “occasionally” means the activity occurs at least once during, and
up to one third of, an eight–hour workday (POMS DI 25001.001B.34), and “frequently” means one-third to two thirds
of an eight-hour workday (POMS DI 25001.001B.54). Light work also “[u]sually requires walking or standing for
approximately 6 hours of the day. Many unskilled light jobs are performed primarily in one location, with the ability
to stand being more critical than the ability to walk. Even though the weight lifted may be only a negligible amount,
an occupation is rated as light when it requires walking or standing to a significant degree, sitting most of the time
while pushing or pulling arm or leg controls, or working at a production rate pace while constantly pushing or pulling
materials even though the weight of the materials is negligible. Usually requires only occasional, rather than frequent
stooping and no crouching. Usually involves grasping, holding and turning objects, but does not require use of the
fingers for fine activities to the extent required in much sedentary work. Generally includes the functional capacity to
perform sedentary work.” POMS DI 25001.001B.44.

11

the decision (“second non-disability period”). [Doc. 10-4 at 13, 22, 27]. However, the ALJ did
not find that Plaintiff was capable of the “full range” of light work for any of those time periods.
Plaintiff contends that the ALJ erred at steps four and five of the SEP because the
hypothetical presented to VE Kelsay at the hearing indicated that the hypothetical person could
“perform light work as defined by the regulations,” even though his own assessment of Plaintiff’s
RFC would not qualify Plaintiff for “light work.”

[Doc. 19 at 3-4].

Plaintiff argues that

“[w]alking and standing four hours a day and sitting four hours a day ‘seems’ inconsistent with
light work.” Id. at 4 (citing Payden v. Astrue, 2010 WL 5392613, *3 (D. Kan. December 21,
2010) (unpublished)).11
In this case, the ALJ assessed Plaintiff capable of “light work,” as that term is defined in
the regulations, but specifically qualified that defined term with added limitations, as he is allowed
to do. See, e.g., Soc. Sec. Rep. 83-12 (when an individual’s RFC “does not coincide with the
definition of any one of the ranges of work as defined in . . . the regulations,” the ALJ “will
consider the extent of any erosion of the occupational base” caused by the departure from the
defined work range). A VE may be tasked with finding jobs that a claimant could perform when
the RFC assessed by the ALJ restricts the claimant to “less than the full range of” work in a
specific category (see id. at *1-2) (where the occupational base is significantly affected, the ALJ
may need to consult a vocational resource), just as it is typically a VE who finds jobs that will
11

The Payden case is completely distinguishable from the present case, and simply repeats a reviewing
consultant’s statement regarding a doctor’s RFC assessment, which was missing one of its pages, to the effect that
“Dr. says [claimant] is capable of returning to light work but says he can walk, stand 4 hours and sit 4 hours which is
not totally consistent with light work.” Payden, 2010 WL 5392613 at *4. At issue in that case was whether or not
the reviewing consultant, who assigned “considerable weight” to the doctor’s opinion, had determined that the
plaintiff was capable of sedentary or light work. Id. at *4-5.

12

allow for a claimant’s non-exertional limitations.

Appendix 2 of the disability insurance

regulations (20 C.F.R. Pt. 404, Subpt. P, Appx. 2) provides “medical-vocational guidelines,”
based on a claimant’s exertional capacity, age, education, and previous work experience, for ALJs
to use in their ultimate determination of disability. However, by necessity those guidelines apply
only where a claimant can perform the full range of work in a particular exertional category, and
thus caution that, where a claimant’s RFC “falls between the ranges of work indicated in the rules
(e.g., the individual who can perform more than light but less than medium work),” the specific
rules within those guidelines will not apply. Appx. 2 § 200.00(d) (where “an individual’s specific
profile is not listed within this appendix,” disability must be determined “on the basis of the
principles and definitions in the regulations, giving consideration to the rules for specific case
situations in this appendix 2”) (emphasis added). See also 20 C.F.R. §§ 404.1569 (“The rules in
appendix 2 do not cover all possible variations of factors,” and do not apply “if one of the findings
of fact about the [claimant]’s vocational factors and [RFC] is not the same as the corresponding
criterion of a rule”); SSR 83-12 at *1 (identifying its purpose as “set[ting] out the process of using
the numbered rules [in Appendix 2] in adjudicating those claims in which the exertional
components of the RFC are less or greater than those of a specifically defined exertional range of
work”).
In RFC 3, the ALJ added a sit/stand restriction to Plaintiff’s capacity to perform “light
work,” as follows: “[Plaintiff] is able to stand and/or walk for up to 4 hours total in an 8-hour
workday; sit the remainder of the workday, at least 4 hours; maintain either posture (seated or on

13

his feet) for, at least, 1 hour at a time.” [Doc. 10-4 at 27].12 That limitation required VE Kelsay
to find jobs that were not only listed in the DOT as “light,” but also would not require Plaintiff to
stand/walk or sit more than four hours in a normal workday. There is no evidence, nor any reason
to suspect, that VE Kelsay did not understand that to be her assignment. By finding that Plaintiff
could not perform the full range of light work jobs, the ALJ also decreased the probability that
VE Kelsay would find sufficient jobs available that Plaintiff could perform.

The sit/stand

limitation also required VE Kelsay to consider sources other than the DOT, as the DOT does not
include a sit/stand characterization.13 [Doc. 10-5 at 47]. Thus, VE Kelsay indicated that the
research publication she relied on “identified percentages of jobs” within the entire occupational
base that could be considered when a sit/stand option was included, and that total job numbers
were reduced based on those percentages. Id.
Nonetheless, Plaintiff asserts that the ALJ erred because “[t]o perform light work, a person
must be able to walk and/or stand for at least six hours in an eight-hour work day,” and “must be
able to sit up to six hours in eight,” and, therefore, Plaintiff “cannot perform . . . light work with the
[] hypothetical and RFC” assigned to him by the ALJ. 14

[Doc. 19 at 4].

This argument

completely ignores the reality that the ALJ found Plaintiff to be capable of only a limited range of
12

This limitation was included only in the ALJ’s RFC 3 assessment of Plaintiff pertaining to non-disability
period 2, which began on January 14, 2013. See [Doc. 10-4 at 27].
13

This fact is evidence that VE Kelsay understood that Plaintiff’s RFC did not allow him to perform the “full
range” of light work.
14

Plaintiff also asserts that he similarly could not perform sedentary work since even those jobs would
require him to sit for about six hours in a workday. [Doc. 19 at 4]. However, since this Court has concluded that
Plaintiff’s objections to the ALJ’s assessment of “light work” to be without merit, this claim need not be addressed.
See 20 C.F.R. § 404.1567b (the capacity to perform light work generally includes the capacity to perform sedentary
work as well).

14

light work, and that those additional limitations were conveyed to, and considered by, VE Kelsay.
Therefore, the Court finds this claim of error by Plaintiff to be without merit.
B. The ALJ’s Consideration of the Evidence
Plaintiff’s second claim of error is premised on a similar misreading of the law as was his
first, which is that “the best” that an RFC with exertional limitations of four hours of standing or
walking and six hours of sitting allows “is a sedentary exertional level of work.”15 [Doc. 19 at 5].
Specifically, Plaintiff contends that, while the ALJ assigned “great weight” (Doc. 10-4 at 31-32) to
the opinion of non-examining physician Kenneth Glass, M.D., who assessed such limitations at the
reconsideration level of Plaintiff’s claim (Doc. 10-6 at 32), the assessment given by Dr. Glass
would not allow Plaintiff to perform light work (Doc. 19 at 5). This Court has already determined
that RFC 3, which includes an even more restrictive sitting limitation, appropriately limited the
exertional category of “light work.” As such, this argument does not present a valid challenge to
RFC 3.
Plaintiff also contends that the ALJ failed to explain how he determined the weight to be
assigned to Dr. Glass’ opinion and, consequently, failed to “make it clear to reviewers how he
arrived at his conclusions regarding the weight of the evidence.” Id. at 5-6 (citation omitted). In
this argument, Plaintiff asserts that the ALJ erred by assigning weight to medical opinions while
failing to “apply or mention” the regulatory factors he is required to consider. Id. These factors
(20 C.F.R. § 404.1527(c)) are used to evaluate the weight to be given to “any medical opinion,”

15

In his first argument, Plaintiff claimed that the ALJ’s RFC 3 would not allow him to “perform sedentary
work.” [Doc. 19 at 4]. The reason for this difference is that RFC 3 limited Plaintiff to only 4 hours of sitting,
whereas sedentary work requires that “one must be able to sit for about six hours.” Id. (citations omitted).

15

unless a treating source's opinion is given “controlling weight” (id.). See also, Robinson v.
Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (“an ALJ must give good reasons for the weight
assigned to a treating physician's opinion, that are sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's medical opinions and
the reason for that weight”) (internal punctuation and citation omitted).
In this case, the ALJ did not give controlling weight to any treating physician’s opinion,
nor did he expressly address the § 404.1527(c) factors with respect to any of the weights he did
assign to the numerous medical sources. Significantly, however, the ALJ gave at least “some
weight” to every medical opinion he reviewed (see Doc 10-4 at 17-19 and 31-32_, and Plaintiff
does not argue that the ALJ’s assignment of weight to any particular source was “wrong” or that
the ALJ rejected an opinion that he should not have, based on the regulatory factors. Effectively,
Plaintiff’s argument is that the ALJ’s decision should be remanded because he did not discuss each
of the § 404.1527(c) factors with respect to his assignment of “great weight” to Dr. Glass.16
Plaintiff further claims to have been prejudiced by that failure because “[a] reasonable ALJ would
have properly evaluated the source opinions and could have altered the course of this case by
finding [Plaintiff] disabled and paying the claim.” [Doc. 19 at 6] (citation omitted). Without
identifying a medical opinion that is more restrictive than the RFC assigned by the ALJ and was
rejected without discussion of the § 404.1527(c) factors, this argument is pure speculation.

16

The ALJ also assigned great weight to Plaintiff’s treating physicians, orthopedic surgeon Michael H.
Wright, M.D. (Doc.10-4 at 17) and neurosurgeon Robert Remondino, M.D. (id. at 18, 31), as well as to examining
physicians Andrew John, M.D. (id. at 31) and Robert Wienecke, M.D. (id. at 18). Apparently, Plaintiff does not
specifically disagree with the opinion of any of these doctors, only with the ALJ’s characterization of them and his
failure to consider each of the 20 C.F.R. § 404.1527(c) factors prior to assigning weight to their opinions.

16

Indeed, the only opinion that Plaintiff specifically discussed, that of Dr. Glass, was actually less
restrictive than the RFC that was assessed by the ALJ. Therefore, any error by the ALJ in failing
to discuss the § 404.1527(c) factors was harmless. See Mays v. Colvin, 739 F.3d 569, 578-79
(10th Cir. 2014) (“an ALJ’s failure to weigh a medical opinion involves harmless error if there is
no inconsistency between the opinion and the ALJ's assessment of residual functional capacity”).17
C. The Fifth and Fourteenth Amendments
Plaintiff’s third claim of error is that “[t]he ALJ failed to properly protect [Plaintiff’s] Fifth
and Fourteenth Amendment rights.” [Doc. 19 at 7]. This argument is based on VE Kelsay’s
reliance on a journal article during her testimony that Plaintiff claims is “available only to
members of the International Association of Rehabilitation Profession members.” Id. Plaintiff
contends that “[t]he ALJ “should have made sure that this article was submitted into evidence, and
in failing to do so [the ALJ] failed to properly develop the record, which is his duty.” Id. (citation
omitted). Again, Plaintiff claims to be prejudiced by that failure because “[a] reasonable ALJ
would have properly required the submission of the VE’s authority into evidence and could have
altered the course of this case by finding Claimant disabled and paying the claim.” Id. (citation
omitted).
As Defendant points out, Plaintiff neither requested a copy of the article at the hearing, nor
made any attempt to obtain it afterward from Defendant or the ALJ. [Doc. 23 at 18]. An ALJ is
not required to intuit Plaintiff’s needs and provide for them.

17

See, e.g., Cowan v. Astrue,

Plaintiff also makes an argument regarding the ALJ’s reliance on VE Wilson-Wiles (Doc. 19 at 6), which
is not only difficult to understand, but again fails to establish any prejudice as a result. The Court therefore will not
specifically address that claim.

17

552 F.3d 1182, 1187-88 (10th Cir. 2008) (ALJ has no need to develop the record where the ALJ
had sufficient evidence to make a decision, especially when Plaintiff’s counsel did not identify
anything

needing

further

development)

(relying,

in

part,

on

Glass

v.

Shalala,

43 F.3d 1392, 1394-96 (10th Cir. 1994) for the proposition that “refusing to remand for further
development of the record where the ALJ had carefully explored the applicant’s claims and where
counsel representing claimant failed to specify the additional information sought” is appropriate).
Of even more significance in this case is that the document Plaintiff claims requires remand
actually benefitted him by reducing the available jobs he could perform based on his sit/stand
limitations. Thus, whether or not the Plaintiff was “entitled” to a copy of that document, he was
not prejudiced by his failure to receive it.
D. The ALJ’s Credibility Assessment
Plaintiff argues that the ALJ “failed to perform a proper credibility determination.”
[Doc. 19 at 7]. Plaintiff contends that the ALJ made an “unfavorable credibility determination”
for both the first and second non-disability periods18 (id. at 8-10 and 11-14, respectively). The
ALJ found that, during both non-disability periods, Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of [his] symptoms are not entirely credible.” [Doc. 10-4
at 16 and 30]. In challenging this finding, Plaintiff employs what is sometimes characterized as a

18

In its definition of the “first non-disability period,” this Court included a period of time after the alleged
onset of disability when Plaintiff was still working. See p. 11-12, supra. However, Plaintiff only contests the ALJ’s
finding of non-disability from January 6, 2011, the day after he stopped working, to the last day of the first
non-disability period, January 11, 2012. See [Doc. 19 at 2, 8]. The difference between Plaintiff’s four time periods
and the Court’s three has no significance, however, since Plaintiff was found not disabled during the entire period, and
only one credibility determination was assessed by the ALJ for any period prior to January 12, 2012. See [Doc. 10-4
at 16].

18

“shotgun approach,”19 which consists of spraying projectiles in as wide an area as possible in an
effort to obtain one fatal blow. Thus, Plaintiff states that: the ALJ “ignores [that] a claimant
need not be completely helpless, bedfast, or at death’s door in order to be disabled” (Doc. 19
at 12); Plaintiff’s numerous activities of daily living (“ADLs”) upon which the ALJ relied are
actually “minimal” (id.); the ALJ engages in “unacceptable speculation” (id. at 13); information
upon which the ALJ relied “comes almost exclusively from [Plaintiff]’s Disability ReportAdult”20 that “was completed in the time period when [Plaintiff] was considered to be ‘generally
credible’ and unable to work” (id. at 13-14); the ALJ “inconsisten[tly]” used the “same
information” both to impeach Plaintiff’s credibility and to find him credible (id. at 14); the ALJ’s
comments about a missing report “sully” his counsel’s reputation, are not a legitimate basis for
rejecting it, and constitute “disfavored speculation” (id.); the ALJ “consider[ed] only the evidence
supporting his decision while ignoring evidence helpful to [Plaintiff]” (id. at 15); by “consistently
den[ying]” that Plaintiff has “memory difficulties,” the ALJ “ignored” that Plaintiff “needed
reminders for his treatments” (id. at 16); and the ALJ’s credibility determination resulted from
“repeated errors of fact and selective omission of evidence supporting [Plaintiff]” (id.).

19

“Shotgun approach” is “the hasty use of a wide range of techniques that are nonselective and haphazard.”
http://www.dictionary.com/browse/shotgun-approach. See also https://en.wiktionary.org/wiki/shotgun_approach
(“Shotgun approach” is “[a]n approach in which the subject is indiscriminate and haphazard, using breadth, spread, or
quantity in lieu of accuracy, planning, etc.”) (sites last visited January 16, 2017).
20

As Plaintiff did not provide a record citation for this document, the Court can only assume he refers here to
the document by the same name in the record (Doc. 10-10 at 15-23), although that document is both unsigned and
undated. It appears more likely that Plaintiff meant to reference the “Function Report – Adult” (id. at 25-32), which
is signed, dated, and hand-written. In any event, the “information” to which Plaintiff refers in the ALJ’s decision (see
Doc. 10-4 at 17) is followed by the ALJ’s own citation to several documents, including the Function Report, two
Reports of Contact (Doc. 10-10 at 33, 50), and a Vocational Evaluation by VE Wilson-Wiles (Doc. 10-11 at 3-8).

19

It is well-established that “[c]redibility determinations are peculiarly the province of the
finder of fact, and [courts] will not upset such determinations when supported by substantial
evidence.”

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v.

Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)). Thus, “the determination
of credibility is left to the observations made by the Administrative Law Judge as the trier of fact.
His determinations on this issue are generally considered binding on the reviewing court.”
Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983) (citations omitted). Here, Plaintiff
claims both that the ALJ’s credibility findings are not supported by substantial evidence and that
the ALJ relied on “evidence” that was actually “speculation.” Id. at 7-16. Principally, Plaintiff
attacks the ALJ’s reliance on Plaintiff’s own statements regarding his daily activities, on the
ground that, although his symptoms did not cause “total incapacity,” they are also “not indicative
of an ability to work on a full-time basis.” Id. at 12. The ALJ described Plaintiff’s testimony
regarding the severity of his pain and its impacts on his functionality during the non-disability
periods, in detail. [Doc. 10-4 at 16]. This included testimony that Plaintiff “had constant back
pain that extended into both legs from his hips down to his ankles,” that “he had to lie down during
the day for at least one and one-half hours out of eight hours for pain relief,” that he “could not
leave the house about two to three days per week,” and that his pain “interfered with his ability to
focus” during the first non-disability period. Id. The ALJ related that Plaintiff had also testified
that, until July 2012 (which includes part of the disability period), “he was able to lift twenty
pounds, sit twenty minutes, stand forty-five minutes, and walk half a mile without difficulty.” Id.
In addition, Plaintiff “speculated that he could have performed a sit/stand option at a workstation,
but would have needed to walk around about three times each hour,” and that “an ideal job would

20

allow him to alternate his sitting and standing positions as well as get up and walk around for three
to five minutes at a time.” Id. Noting that the issue during this period was “not the existence of
pain, but rather the degree of limitation incurred because of it,” the ALJ summarized Plaintiff’s
own testimony regarding his activities, as follows:
In particular, [Plaintiff] did not require assistance in his personal care. [Plaintiff]
was able to care for his three dogs. [Plaintiff] was able to prepare daily meals and
do laundry and light housework, such as taking out the trash and loading and
unloading the dishwasher. [Plaintiff] was able to drive and navigate a vehicle.
[Plaintiff] was able to shop in stores one to two times a week for up to at least one
hour. [Plaintiff] was able to count change, pay bills, and use bank accounts.
[Plaintiff] was able to read and watch television. [Plaintiff] was able to use a
computer. He was able to surf the internet, read internet news, check and send
email, and was active on social networking sites. The [Plaintiff] was able to use a
telephone. He was able to text. [Plaintiff] visited with others in person, by
telephone, by text, and via computer. He was able to go out to eat. [Plaintiff] was
able to do oil painting and woodworking. [Plaintiff] was able to do light
gardening. [Plaintiff] was able to attend church services. [Plaintiff] was able to
attend medical appointments.
Id. at 17. Significantly, Plaintiff does not challenge the accuracy of the ALJ’s recitation of these
matters, only his conclusion that Plaintiff’s statements regarding the “degree of limitation” caused
by his pain were “not entirely credible.” However, the ALJ did not simply disregard Plaintiff’s
claims of impairment. Indeed, he found from the evidence that Plaintiff has “severe” spinal
impairments that have rendered him unable to perform any of his past work, and have left him with
the capacity to perform only a limited range of light work.21 While Plaintiff insists that he is not
able to engage in substantially gainful employment, there is clearly room for disagreement
regarding whether his impairments are indeed as limiting as he claims. Where there is room to

21

It should be noted that this represents a substantial reduction of Plaintiff’s work capacity, as his most
recent job was considered to be in the “heavy” exertional category, as described by Plaintiff. [Doc. 10-5 at 45].

21

disagree, this Court will “defer to the ALJ, as trier of fact, the individual optimally positioned to
observe and assess witness credibility.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
801 (10th Cir. 1991). The ALJ gave reasons for his credibility findings, and based those finding
on medical evidence, as well as Plaintiff’s own statements. Although one could, as Plaintiff has,
argue that the evidence supports a different result, that does not render the ALJ’s findings without
substantial evidentiary support, as “[t]he possibility of drawing two inconsistent conclusions from
the evidence does not prevent [the ALJ]’s findings from being supported by substantial evidence.”
Lax, 489 F.3d at 1084.

VI. Recommended Disposition
IT IS HEREBY RECOMMENDED, for the reasons stated above, that Plaintiff’s
Opening Brief (Doc. 19), which the Court has construed as a motion to remand be DENIED for
the reasons set forth above, and the decision of the Commissioner be AFFIRMED.

_________________________________________
THE HONORABLE LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

22