Barber v. Social Security Administration
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen denying 15 Plaintiff's MOTION to Remand to Agency. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALLEN KENT BARBER,
CIV 16-0280 KBM
NANCY A. BERRYHILL,1
Acting Commissioner of Social
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand
for a Rehearing with Supporting Memorandum (Doc. 15) filed on November 2, 2016.
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to
me serving as the presiding judge and entering final judgment. See Docs. 5, 8, 9.
Having considered the record, submissions of counsel, and relevant law, the Court finds
Plaintiff’s motion is not well-taken and will be DENIED.
On November 6, 2012, Mr. Allen Kent Barber (Plaintiff) protectively filed
applications with the Social Security Administration for Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social
Effective January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social
Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill is therefore substituted for former Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.
Security Act. Administrative Record2 (AR) at 211-24, 239. Plaintiff alleged a disability
onset date of April 29, 2011.3 AR at 15, 279. Disability Determination Services
determined that Plaintiff was not disabled both initially (AR at 70-87) and on
reconsideration (AR at 88-116). Plaintiff requested a hearing with an Administrative Law
Judge (“ALJ”) on the merits of his SSI application. AR at 133-34.
Plaintiff appeared pro se and testified at the de novo hearing. See AR at 15, 3756. ALJ Christopher H. Juge issued an unfavorable decision on August 6, 2014. AR at
12-35. Plaintiff requested that the Appeals Council review the ALJ’s decision (AR at 10);
the Appeals Council denied the request for review on February 11, 2016 (AR 1-5).
Consequently, the ALJ’s decision became the final decision of the Commissioner. Doyal
v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
Applicable Law and the ALJ’s Findings
A claimant seeking disability benefits must establish that he 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); see also 20 C.F.R. § 404.1505(a). The Commissioner must use a fivestep sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
Documents 12-1 through 12-20 comprise the sealed Administrative Record. See Doc. 12. The
Court cites the Administrative Record’s internal pagination, rather than the CM/ECF document
number and page.
Originally, Plaintiff alleged an onset date of June 15, 2010 (see AR at 211, 218) but modified
the date to April 29, 2011, because he received wages for substantial gainful activity after his
alleged onset date (see AR at 279, 319).
The claimant has the burden at the first four steps of the process to show: (1) he
is not engaged in “substantial gainful activity”; (2) he 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 (3) his impairment(s) meet or equal one of the
listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant’s residual functional capacity (RFC), he is unable to perform
his past relevant work. 20 C.F.R §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); see also
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a
multidimensional description of the work-related abilities [a claimant] retain[s] in spite of
[his] medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2
(D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R.
§ 404.1545(a)(1)). If the claimant meets “the burden of establishing a prima facie case
of disability[,] . . . the burden of proof shifts to the Commissioner at step five to show
that” Plaintiff retains sufficient RFC “to perform work in the national economy, given his
age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v.
Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
At Step One of the process,4 ALJ Juge found that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date of April 29, 2011. AR at 17 (citing
20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.). At Step Two, the ALJ concluded that
Plaintiff “has the following severe impairment[s]: large Hill-Sachs lesion and labral tear
of the left shoulder status post arthroscopic Bankart repair, and degenerative disc
ALJ Juge first found that Plaintiff’s “earning records shows that [he] has acquired sufficient
quarters of coverage to remain insured through December 31, 2014.” AR at 15, 17.
disease . . . .” AR at 18 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The ALJ
discussed Plaintiff’s history of anxiety, depression, and the psychiatric treatment he
received from various providers and found that any “medically determinable mental
impairments cause[d] no more than [a] ‘mild’ limitation in any of the first three functional
areas and ‘no’ episodes of decompensation which have been of extended duration in
the fourth area . . . .” AR at 18-21. Consequently, the ALJ determined Plaintiff’s mental
impairments are non-severe. AR at 21 (citing 202 C.F.R. §§ 404.1520a(d)(1),
At Step Three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 . . . .” AR at 21 (citing
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). At Step
Four, the ALJ found that while Plaintiff “has severe impairments that could reasonably
be expected to produce some of the symptoms he alleges and which would affect his
ability to perform work related activities[,]” the ALJ did not find Plaintiff’s “allegations that
he is incapable of all work activity to be credible.” AR at 25. The ALJ considered the
evidence of record, including a thoughtful and well-reasoned discussion of the treatment
notes and impressions of Dr. Paul Mattox (treating psychiatrist) and the examination
and Mental RFC Assessment performed by Dr. John Koewler (consultative
psychologist), as well as the treatment notes and Physical RFC Assessment of
Plaintiff’s treating physician, Dr. Carletta Thompson, along with records and evaluations
from other medical providers. AR at 18–27. Ultimately, the ALJ found that Plaintiff “has
the residual functional capacity to perform the full range of light work . . . .” AR at 21
(citing 20 C.F.R. §§ 404.1567(b) and 416.967(b)).
ALJ Juge found that Plaintiff is unable to perform his past relevant work as an
automobile mechanic. AR at 28. The ALJ considered Plaintiff’s “age, education, work
experience, and residual functional capacity,” and upon application of the MedicalVocational Guidelines (colloquially known as the “Grids”), found “there are jobs that
exist in significant numbers in the national economy that [Plaintiff] can perform . . . .” AR
at 28 (citing 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)). The ALJ
ultimately determined that Plaintiff “has not been under a disability, as defined in the
Social Security Act, from April 29, 2011, through the date of the [ALJ’s] decision . . . .”
AR at 28 (citing 20 C.F.R. §§ 404.1520(g), 416.920(g)).
The Court must “review the Commissioner’s decision to determine whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal
quotation omitted)). “It ‘requires more than a scintilla, but less than a preponderance.’”
Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation
omitted) (alteration in original)). The Court will “consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of evidence in
disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the
Commissioner’s.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and
“The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The
Court “may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even
though the court would justifiably have made a different choice had the matter been
before it de novo.’” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotations
Plaintiff asserts that the ALJ: (1) improperly rejected the medical opinion of
treating physician Carletta Thompson, M.D., and (2) ignored findings from
Administrative Examining Psychologist John Koewler, Ph.D. and Non-Examining State
Agency Medical Consultant, Renate Wewerka, Ph.D. Doc. 15 at 15-25.
Treating Physician Carletta Thompson, M.D.
Plaintiff first argues that the ALJ improperly rejected the opinion of Plaintiff’s
treating physician, Dr. Carletta Thompson. Doc. 15 at 15-21. Specifically, Plaintiff
argues first that ALJ Juge did not perform the two-step treating physician analysis as
required by law, and second that the ALJ’s reasoning for rejecting Dr. Thompson’s
opinion is conclusory and fails to reference the portions of the record with which the ALJ
found the opinion was inconsistent. Doc. 15 at 17.
ALJs must follow a two-step inquiry when evaluating a treating
An ALJ must consider all medical opinions found in the record. Padilla v. Colvin,
No. CV 14-495 CG, 2015 WL 10383109, at *4 (D.N.M. June 29, 2015) (citing 20 C.F.R.
§§ 404.1527(b), 416.927(b)). “Medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about” a
plaintiff’s impairments. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An opinion from a
treating physician is generally entitled to more weight than either an examining or an
agency physician. Padilla, 2015 WL 10383109, at *4 (citing Robinson v. Barnhart, 366
F.3d 1078, 1084 (10th Cir. 2004) (internal citations omitted)).
“The ALJ should accord opinions of treating physicians controlling weight when
those opinions are well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record;
this is known as the ‘treating physician rule.’” Id. (citing 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal
citations omitted)). “A treating physician’s opinion is accorded controlling weight
because the treating physician has a ‘unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations.’” Id. (quoting Doyal, 331
F.3d at 762 (internal quotation omitted)).
Where the “treating physician’s opinion is not supported by medical evidence or
consistent with the record,” id. (citation omitted), it is “still entitled to deference and must
be weighed using all of the factors provided in 20 C.F.R. [§§] 404.1527 and 416.927.”
Robinson, 366 F.3d at 1082 (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003) (quoting Soc. Sec. Ruling, SSR 96-2p, Policy Interpretation Ruling Titles II &
XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188,
at *4 (July 2, 1996))). The 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. (quoting Watkins, 350 F.3d at 1300 (internal quotations omitted)). “When evaluating
any medical opinion in the record, the ALJ must give good reasons – reasons that are
‘sufficiently specific to make clear to any subsequent reviewers’ – for the weight that he
ultimately assigns to” those opinions. Padilla, 2015 WL 10383109, at *4 (quoting
Langley, 373 F.3d at 1119 (internal quotations omitted)). The ALJ’s “determination, like
all of his findings, must be supported by substantial evidence.” Id.
The ALJ’s analysis sufficiently follows the treating physician
rule and does not provide a basis for remand.
Dr. Thompson, a licensed medical doctor, is an acceptable medical source under
the regulations. 20 C.F.R. § 404.1513(a)(1). “As explained above, the ALJ must follow
two steps if he wishes to accord a treating physician's opinion less than ‘controlling
weight.’” Padilla, 2015 WL 10383109, at *5. “First, the ALJ must find the opinion to be
unsupported by medical evidence or inconsistent with substantial evidence in the
record.” Id. If the opinion is not well-supported by the medical evidence or if it is
“inconsistent with other substantial evidence in the record[,]” the ALJ will not give the
opinion controlling weight. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011)
(citing Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188, at *2); 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). At the second step of the analysis of a
treating physician’s opinion, the ALJ “must determine what deference he will accord the
opinion after considering the six deference factors listed above, and state sufficiently
specific reasons for that determination.” Padilla, 2015 WL 10383109, at *5; see also 20
C.F.R. §§ 404.1527, 416.927.
Plaintiff’s primary contention is that the ALJ erred by collapsing the two steps of
the “inquiry into a single point, contrary to law.” Doc. 15 at 17 (citing Chrismon v. Colvin,
531 F. App’x 893, 901 (10th Cir. 2013)). Plaintiff cites Krauser to support the proposition
that the ALJ must “reference those portions of the record that are allegedly inconsistent
with the treating source’s opinion.” Doc. 15 at 17 (quoting 638 F.3d at 1331 (internal
quotation marks and quotation omitted)); Doc. 22 at 3. Unlike in Krauser, however,
where the ALJ found the treating physician’s opinion was not entitled to controlling
weight and then “simply stopped[,]” 638 F.3d at 1330, ALJ Juge did explain his decision.
While the Court agrees that the ALJ did not provide an ideal model of what an analysis
under the treating physician rule should look like, his decision was sufficiently clear that
the Court can determine why he chose not to give Dr. Thompson’s opinion controlling
weight. In other words, the Court is “not troubled by the substance of the ALJ’s
determination.” Andersen v. Astrue, 319 F. App’x 712, 721 (10th Cir. 2009); see also
Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014) (finding that “[b]ecause [the court]
can tell from the decision that the ALJ declined to give controlling weight to [the
physician’s] opinion, [the court did] not reverse on” the ground that “the ALJ did not
expressly state whether he had given [the physician’s] opinion ‘controlling weight’”).
At the first step, ALJ Juge concluded that “the medical statement by Dr.
Thompson dated March 5, 2014, in which she stated [Plaintiff’s] lumbar degenerative
disc disease caused moderate pain and” determined specific limitations, was
“inconsistent with the examination findings of Dr. Lucas[,]” another treating physician,
“not supported by her own examination notes[,]” “not supported by the objective
evidence or abnormal clinical findings as discussed” previously in the ALJ’s opinion, and
“not consistent with the record as a whole . . . .” AR at 27 (citing 20 C.F.R. §§
404.1527(c), 416.927(c), SSR 96-2p). The ALJ also found that Dr. Thompson “provided
little relevant evidence in the form of medical signs and findings to support her opinion
of extreme restrictions . . . .” AR at 27.
Plaintiff first contends that the ALJ’s findings are conclusory and do not reference
the record. Doc. 15 at 17. The Court notes, however, that in the portion of the ALJ’s
opinion immediately preceding these conclusions, the ALJ painstakingly detailed those
records relevant to Dr. Thompson and Dr. Lucas, as well as the other record evidence
regarding Plaintiff’s physical impairments. AR at 22-27. As the Court discusses below,
the ALJ’s conclusions are well-supported by other portions of his opinion and the
evidence of record.
Plaintiff argues the ALJ incorrectly concluded that Dr. Thompson’s opinion was
inconsistent with Dr. Lucas’s examination findings. Doc. 15 at 20-21. Plaintiff notes Dr.
Lucas’s findings that Plaintiff has “a slight narrowing across the acromioclavicular
joint[,]” “a 6% impairment for some slight subluxation[,]” “a large Hill-Sachs lesion . . .
consistent with [acute trauma and some findings of instability,]” “stiffness to his shoulder
with some slight popping and clicking[,]” and his conclusions that Plaintiff has an “8%
upper extremity impairment, due to his pain and discomfort, with a 5% whole person
impairment.” Doc. 15 at 20 (quoting AR at 399, 400). Plaintiff maintains that Dr. Lucas’s
findings are consistent with Dr. Thompson’s opinion. Doc. 15 at 20. Plaintiff fails to
demonstrate, however, exactly how Dr. Lucas’s findings are consistent with Dr.
Thompson’s very extreme restrictions. As the Commissioner points out, Dr. Lucas noted
that the click and pop in Plaintiff’s shoulder was mild, there were no “signs of gross
dislocation or subluxation[,]” Plaintiff retained overall shoulder strength of “4+/5 on
supraspinatus testing” and “5/5 on infraspinatus and subscapularis testing.” Doc. 19 at
11 (citing AR at 399). Dr. Lucas further noted that Plaintiff “has a negative impingement
and Hawkins impingement5[,] . . . is nontender to palpation across the acromioclavicular
joint[,]” his “elbow and wrist have a full range of motion[,]” and his “left shoulder [has]
good alignment of the glenohumeral joint without any signs of sclerosis or bone spur
formation.” Doc. 19 at 11 (quoting AR at 399). The Court finds that the ALJ’s conclusion
that Dr. Thompson’s restrictive opinion was inconsistent with Dr. Lucas’s findings is
The Court further finds that ALJ Juge was entitled to give Dr. Thompson’s March
5, 2014 medical statement less than controlling weight, and that the ALJ’s analysis at
Step One of the inquiry was sufficient. See Andersen, 319 F. App’x at 721 (citation
A positive Hawkins impingement provides objective evidence to help diagnose a supraspinatus
tendon tear. See The accuracy of “subacromial grind test” in diagnosis of supraspinatus rotator
cuff tears, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4410470/ (last visited
March 20, 2017).
The Tenth Circuit has “held that it is not necessary for the ALJ to address each
factor expressly or at length” at the second step of the inquiry, provided that the ALJ
offers “‘good reasons in his decision for the weight he gave to the’” medical opinion.
Mounts v. Astrue, 479 F. App'x 860, 866-67 (10th Cir. 2012) (quoting Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007) (internal citation omitted)). “What matters is that
the decision is ‘sufficiently specific to make clear to any subsequent reviewer[ ] the
weight the adjudicator gave to the . . . opinion and the reasons for that weight.’” Id.
(quoting Oldham, 509 F.3d at 1258 (internal quotation omitted)). Here, ALJ Juge did not
address the six deference factors expressly, but he did provide sufficiently specific
reasoning for his decision that the Court can understand why he assigned Dr.
Thompson’s opinion limited weight.
First, the ALJ noted Plaintiff’s three visits with Dr. Thompson in May, July, and
October 2013. AR at 24-25 (citing 514-18, 528-33, 537-42); see also 20 C.F.R.
§§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (“Length of the treatment relationship and the
frequency of examination”).
Second, the ALJ thoroughly summarized those three visits. AR at 24-25. Dr.
Thompson evaluated Plaintiff for pain management for left shoulder and low back pain.
AR at 24 (citing AR at 537). At the initial visit in May 2013, Plaintiff reported “left arm
fatigue, numbness and tingling in the hand, that he sloped to the left, achy and
occasionally sharp low back pain, leg fatigue, and restlessness at night.” AR at 24, 537.
The ALJ noted that Dr. Thompson examined old MRIs and performed a physical
examination, finding “a normal heel-toe gait pattern, taut rhomboids on the left, a
negative [Spurling] maneuver (for cervical nerve root pain), taut/tender lower lumbar
paraspinals bilaterally, a positive straight leg raise test on the left for back pain only, a
stable left shoulder with left infrascapular tenderness, tenderness at the end range of
abduction and forward flexion, and a negative arm drop test (for tear in the
supraspinatus tendon).” AR at 24, 540-41. “Dr. Thompson diagnosed chronic left
shoulder pain, lumbar degenerative disc disease, and back pain and prescribed Ultram
50 mg three times a day, Gabapentin 300 mg three times a day, and physical therapy.”
AR at 24-25, 541-42.
Plaintiff showed improvement at the two follow-up visits. The ALJ summarized
Dr. Thompson’s treatment notes from July 2013, noting that Plaintiff “reported
improvement with physical therapy and Gabapentin but more pain all over” and at night,
had “taut bands in the rhomboid on the left, few tender paraspinals in the lower lumbar
region, tenderness of the left acromion-clavicular joint, and improved left shoulder
forward flexion and internal rotation.” AR at 25, 528, 531. Dr. Thompson changed
Plaintiff’s prescriptions to “Hydrocodone 5/325 mg four times a day as needed and
Gabapentin 400 mg four times a day,” along with continued physical therapy. AR at 25,
532. The ALJ noted from the October 2013 treatment notes that Plaintiff had “completed
physical therapy, his appetite was improved, he had stiffness in his low back and
shoulders, occasional sharp pain, and decreased tingling with Gabapentin 100 mg at
night.” AR at 25, 514 (citing AR at 514-18). Dr. Thompson’s “physical examination
showed improved left shoulder range of motion, normal heel-toe gait pattern, tender
paraspinals in the lower lumbar region, and a positive straight leg raise test on the left
for back pain only.” AR at 25, 517-18. Dr. Thompson continued the same Hydrocodone
and Gabapentin prescriptions and advised Plaintiff to perform home exercises. AR at
25, 518. The ALJ also noted that Plaintiff is still taking Hydrocodone (more frequently
than prescribed) and Gabapentin (less frequently than prescribed). AR at 26; see also
AR at 502-13, 519-27, 534 (reflecting regular prescription refills authorized by Dr.
Thompson); 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii) (“Nature and extent of the
Third, the ALJ found that Dr. Thompson “provided little relevant evidence in the
form of medical signs and findings to support her opinion of extreme restrictions[,]” and
her opinions are “not supported by her own examination notes . . . .” See AR at 27.
Thus, the ALJ’s discussion demonstrates that Dr. Thompson did not support her opinion
with relevant evidence. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (“Supportability.
The more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight [the ALJ] will give
that opinion.”). For example, the ALJ noted from Dr. Thompson’s examination notes that
Plaintiff had “improved left shoulder range of motion, normal heel-toe gait pattern,
tender paraspinals in the lower lumbar region, and a positive straight leg raise test on
the left for back pain only.” AR at 26; see also AR at 517-18. Based on these
improvements and other evidence from the record, the ALJ found that Dr. Thompson’s
restrictions are not supported by her own examination notes and Plaintiff “is able to
perform a full range of light exertional work.” AR at 26–27. Plaintiff disagrees, noting Dr.
Thompson examined two MRIs that revealed degenerative disc disease. See Doc. 22 at
3-4. While the evidence could possibly be construed to support Plaintiff’s conclusion,
there is substantial evidence to support the ALJ’s ultimate decision, and the Court will
not displace that decision simply because there are two conflicting views. See Lax, 489
F.3d at 1084 (quotation omitted).
It is also clear that ALJ Juge implicitly considered the fourth deference factor
regarding consistency between Dr. Thompson’s opinion and the record evidence. See
20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Consistency. Generally, the more
consistent an opinion is with the record as a whole, the more weight [the ALJ] will give
to that opinion.”). For example, while Dr. Thompson advocated for restrictive work
limitations, there is evidence that Plaintiff worked up to full-time hours at one point
before he showed improvement from his 2013 physical therapy sessions. See, e.g., AR
at 26, 232 (showing earnings in 2011 from Plaintiff’s employment at Jayco Customs),
379 (noting at an October 13, 2010 appointment that Plaintiff was “tolerating work
related activities satisfactorily”), 380 (noting at an October 1, 2010 appointment that
Plaintiff was continuing “to increase his work related activity on a week to week basis”).
It would seem, therefore, that Dr. Thompson’s opinion is inconsistent with relevant
record evidence, since Plaintiff did have sufficient ability to function appropriately at
work. See 20 C.F.R. §§ 401.1527(c)(4), 416.927(c)(4). Moreover, as discussed
previously in this section, there is sufficient discussion in the ALJ’s opinion to
demonstrate that Dr. Thompson’s opinion is inconsistent with Dr. Lucas’s opinion.
Finally, the ALJ noted that Plaintiff saw Dr. Thompson specifically for pain
management. AR at 26. See 20 C.F.R. §§ 401.1527(c)(5), 416.927(c)(5)
(“Specialization. We generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source who
is not a specialist.”).
Ultimately, the Court finds the ALJ gave “good reasons” for his decision to give
Dr. Thompson’s medical opinions “little weight.” See Mounts, 479 F. App’x at 866-67
(quotation omitted). The Court further finds that substantial evidence in the record
supports the ALJ’s findings.6 See Lax, 489 F.3d at 1084 (citation omitted).
Administrative Examining Psychologist John Koewler, Ph. D. and
Non-Examining State Agency Consultant, Renate Wewerka, Ph.D.
Plaintiff argues that ALJ Juge ignored findings from Dr. Koewler and Dr.
Wewerka. Doc. 15 at 21-25. Plaintiff makes several specific arguments regarding the
ALJ’s analysis of these two opinions. First, Plaintiff contends that “ALJ Juge’s RFC did
not include any limitations stemming from Mr. Barber’s mental impairments.” Doc. 15 at
21. Second, it appears Plaintiff disagrees with the ALJ’s reasoning for discounting the
two opinions. Doc. 15 at 21-24. Third, Plaintiff asserts that “[e]ven if it had been
permissible to reject these medical opinions, ALJ Fuge [sic] was left with no medical
opinions on which to base his ultimate findings regarding [Plaintiff’s] mental impairments
and its [sic] impact on his RFC.” Doc. 15 at 24. Finally, Plaintiff argues that the ALJ’s
reliance on the Medical-Vocational Guidelines was inappropriate without expert
vocational testimony, because Plaintiff “has nonexertional limitations that prevent him
from performing a substantial majority of the jobs within a particular exertional category .
. . .” Doc. 15 at 24.
Plaintiff mentions a December 16, 2014 Medical Assessment of Ability to Do Work-Related
Activities submitted by Dr. Thompson after the ALJ’s decision and considered by the Appeals
Council. See Doc. 15 at 19-20. The Appeals Council did not make explicit findings about the
new evidence, nor was it required to. See Martinez v. Barnhart, 444 F.3d 1201, 1207-08 (10th
Cir. 2006). The Court finds nothing in Dr. Thompson’s 2014 findings that change the Court’s
The ALJ adequately considered Plaintiff’s mental limitations in
formulating the RFC.
Plaintiff argues the ALJ failed to consider Plaintiff’s mental impairments when
determining the RFC. Doc. 15 at 21. The Court disagrees. As the Court noted
previously, the ALJ’s analysis of Plaintiff’s mental impairments at Step Two was wellreasoned and more than adequate. He summarized Plaintiff’s history of mental health
treatment, including the fact that he sought psychiatric treatment with Dr. SadzieneBessinger for opiate abuse issues, not for PTSD, anxiety, or depression. AR at 18. Dr.
Sadziene-Bessinger’s notes “reflect diagnoses of opiate dependence, depressive
disorder, and anxiety disorder, with a current Global Assessment of Functioning of 58,
which indicated moderate symptoms, or moderate difficulty in one of [either] social,
occupational, or school functioning,” as well as “a Global Assessment of Functioning of
68 in the past year, which indicated mild symptoms” or difficulty in one of the
aforementioned areas of functioning. AR at 18 (citing AR at 441-46). The ALJ noted that
Plaintiff “stopped seeing Dr. Sadziene-Bessinger after six months and stopped the
medication” she had prescribed. AR at 18 (citing AR at 543).
The ALJ gave a comprehensive summary of Dr. Koewler’s psychological
consultative evaluation. AR at 19. ALJ Juge then detailed Plaintiff’s self-referred visits
with Dr. Paul Mattox, Ph.D., who saw Plaintiff two times “for ‘mental stuff’ and his
disability claim.” AR at 19; see also AR at 543-47. In finding that Plaintiff’s mental
impairments are non-severe, the ALJ found it notable that Plaintiff first sought treatment
for opiate dependence, “ceased recommended treatment with medication and
medication management after approximately seven months and did not pursue
additional treatment until February 2014, just months before his disability hearing on
appeal[,]” clearly wanted Dr. Mattox “to comment on his candidacy for disability[,]” and
“elaborated or exaggerated his complaints on subsequent evaluations.” AR at 20. The
ALJ observed that Plaintiff indicated on his “self-prepared function report . . . that his
limited abilities were the result of physical impairments and pain rather than mental
impairments.” AR at 20 (citing AR at 281-88). The ALJ used the Agency’s special
technique to find that Plaintiff has “no more than mild limitations in activities of daily
living, social functioning, and concentration, persistence or pace, and no episodes of
decompensation, each of extended duration.” AR at 20; see also 20 C.F.R. §
404.1520a. Accordingly, the ALJ found Plaintiff’s mental limitations are non-severe. AR
at 21 (citing 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)).
The ALJ next assessed Plaintiff’s RFC. AR at 21-27. ALJs are required to make
“an independent step-four assessment of mental impairments found medically
determinable but non-severe at step two.” See Suttles v. Colvin, 543 F. App’x 824, 825
(10th Cir. 2013) (citing Wells v. Colvin, 727 F.3d 1061 (10th Cir. 2013)). The issue –
“how much further discussion of a non-severe impairment is required at step four?” – is
one “frequently encountered in social security disability appeals . . . .” Wells, 727 F.3d at
1064. Plaintiff believes that the ALJ failed to consider the opinions of Dr. Koewler and
Dr. Wewerka in assessing the RFC (see Doc. 15 at 21-22), but the Court finds that the
ALJ’s reference to his discussion in the previous step is sufficient evidence that he
considered the evidence from Dr. Koewler, Dr. Wewerka, Dr. Mattox, and Dr. SadzieneBessinger in making the RFC determination. See AR at 27.
As in Suttles, ALJ Juge found Plaintiff’s mental impairments non-severe at Step
Two and “recognized that a distinct mental RFC assessment was still required at step
four . . . .” 543 F. App’x at 826; see also AR at 21 (noting that the mental RFC
assessment at Steps 4 and 5 “requires a more detailed assessment”). At Step Four,
ALJ Juge specifically discussed the opinion of Dr. Wewerka, the non-examining State
medical consultant, and concluded by finding that Plaintiff’s “mental impairments are
non-severe as discussed in finding 3 . . . .” AR at 27 (citing AR at 63-64, 108-09). While
the ALJ’s Step Four analysis could have been more detailed, there is sufficient evidence
(in addition to his analysis of Dr. Wewerka’s non-examining opinion) that the ALJ
specifically considered the limitations of Plaintiff’s mental impairments: he stated that he
had considered all symptoms, objective medical evidence, other evidence, and opinion
evidence as required by the regulations; he noted Plaintiff’s Prozac prescription
“prescribed by a psychiatrist, for posttraumatic stress disorder (PTSD) and depression”;
he mentioned that Plaintiff “is on a waiting list for counseling therapy” and reported “he
had difficulty being around people due to symptoms from PTSD”; and he assessed
Plaintiff’s credibility. AR at 22, 26. Finally, the ALJ explicitly tied his “former discussion
to [his] latter conclusion.” See AR at 27 (finding that Plaintiff’s “mental impairments are
non-severe as discussed in findings 3”); see also Suttles, 543 F. App’x at 826. Plaintiff
points to no evidence to support a finding of “an improper conflation of the step-two and
step-four assessments.” Suttles, 543 F. App’x at 826 (citation omitted). The Court will
deny Plaintiff’s motion as to this issue.
The ALJ provided sufficient reasons for discounting the two
Plaintiff next disagrees with the ALJ’s decision to discount the opinions of Dr.
Koewler and Dr. Wewerka. Doc. 15 at 21-24. The ALJ gave little weight to Dr. Koewler’s
opinions “as they are not consistent with his own evaluation or with other mental health
evaluations” (i.e., those of Dr. Mattox and Dr. Sadziene-Bessinger) as the ALJ
discussed earlier in his decision. AR at 27; see also AR at 18-21. After summarizing Dr.
Wewerka’s findings, which are largely based on Dr. Koewler’s opinion (see AR at 65,
110), the ALJ found that Plaintiff’s “mental impairments are non-severe as discussed in
finding 3 and accord[ed] little weight to” Dr. Wewerka’s opinion. AR at 27.
Because there was no treating physician opinion submitted, the ALJ “must
address all of the medical opinions, using the same six factors used to analyze treating
physician’s opinions.” See Harbin v. Colvin, No. 13-CV-136-TLW, 2014 WL 2738483, at
*5 (N.D. Okla. June 17, 2014) (citing 20 C.F.R. §§ 416.927(c) and (e) (section (c)
provides that “[u]nless we give a treating source’s opinion controlling weight under
paragraph (c)(2) of this section, we consider all of the following factors in deciding the
weight we give to any medical opinion.”)). Again, the ALJ’s analysis would not provide
the gold standard for the inquiry, but the decision was sufficiently adequate for the Court
to understand the reasoning behind giving Dr. Koewler’s and Dr. Wewerka’s opinions
First, the ALJ noted that Dr. Koewler saw Plaintiff one time for a consultative
examination, and Dr. Wewerka did not see Plaintiff at all as the non-examining State
medical consultant. See AR at 19, 27 (citing AR at 63-67, 108-12, 477-81); see also 20
C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (“Length of the treatment relationship and
the frequency of examination”).
Second, the ALJ thoroughly summarized Plaintiff’s April 25, 2013 consultative
evaluation with Dr. Koewler (there was no relationship with Dr. Wewerka to summarize).
AR at 19-21 (citing AR at 478-81); see also 20 C.F.R. §§ 404.1527(c)(2)(ii),
416.927(c)(2)(ii) (“Nature and extent of the treatment relationship”). The ALJ noted that
Plaintiff “complained of depression related to his inability to work,” anxiety and feeling
overwhelmed from financial stress, an “impending eviction, and an ongoing custody
fight over his older child.” AR at 19, 478. Plaintiff “reported a bad childhood and sexual
abuse at age 6, a bad marriage, a hospitalization at age 20 for suicidal ideation, and
recent treatment with a psychiatrist for opioid addiction.” AR at 19, 479. Plaintiff “stated
he was able to avoid bad memories from his childhood and denied flashbacks and
nightmares[,]” but “he slept poorly at night and took daytime naps” and “reported poor
concentration.” AR at 19, 479. Finally, Plaintiff reported “that he spent his time sitting at
home and he did not feel like seeing his few friends.” AR at 19, 479.
The ALJ then detailed Dr. Koewler’s findings on the mental status examination:
Plaintiff exhibited pressured speech; “was overly talkative and circumstantial but . . .
could provide basic information with frequent redirection”; had no apparent psychotic
thought disorder, an intense affect and anxious/depressed mood, and a strong somatic
focus; and was open and cooperative. AR at 19, 480. Plaintiff “had immediate and
delayed recall of 3/3 items[,]” “could remember seven digits forward and four backward”
(within normal limits), “made errors computing serial 7’s, but could compute serial 3’s[,]”
“could compute simple arithmetic” (he made mistakes but corrected them), had below
average knowledge of general information (but was not severely impaired), gave
responses to hypothetical problems that indicated he had “adequate common sense
reasoning ability for basic independent functioning[,]” and “could interpret simple
proverbs.” AR at 19, 480. “Dr. Koewler noted adequate insight but stated judgment
could be impaired at times” and concluded that Plaintiff had “low average to average
intelligence.” AR at 19, 480. The ALJ noted Dr. Koewler’s opinion that Plaintiff “had
chronic severe anxiety and a moderate degree of depression related to a dysfunctional
family background and ongoing stress and were exacerbated by current health
problems[,]” and “Dr. Koewler diagnosed major depression, possible bipolar disorder,
anxiety disorder not otherwise specified with panic and posttraumatic features, pain
disorder, insomnia, and opiate dependency in full remission.” AR at 19, 480-81.
The ALJ described the limitations Dr. Koewler opined: that Plaintiff’s “ability to
understand and remember very short and simple instructions and detailed or complex
instructions was moderately limited; his ability to carry out instructions was markedly
limited; his ability to attend and concentrate was moderately limited; his ability to work
without supervision was moderately limited; interaction with public, co-workers, and
supervisors was moderately limited; his ability to adapt to changes in the workplace was
moderately limited; and, use of public transportation could be moderately limited.” AR at
Third, the ALJ found that Dr. Koewler’s opinion was “not consistent with his own
evaluation[,]” which decreases its supportability. AR at 27; see also 20 C.F.R. §§
404.1527(c)(3), 416.927(c)(3) (“Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight [the ALJ] will give that opinion.”). The Secretary asserts that
“Dr. Koewler’s exam findings were disproportionate to the moderate and even marked
limitations he endorsed . . . .” See Doc. 19 at 17. It appears to the Court that the ALJ
implicitly considered this, because he repeated several of Dr. Koewler’s findings later in
his opinion when discussing his conclusion that Plaintiff’s mental impairments are nonsevere. See AR at 21. ALJ Juge found it noteworthy that Dr. Koewler remarked Plaintiff
“was open and cooperative,” “exhibited good immediate and delayed recall,” “was able
to concentrate [and] exhibited adequate common sense reasoning ability for basic
independent functioning,” “was able to interpret simple proverbs,” and “seemed to have
adequate insight but judgment could be impaired at times.” AR at 21 (citing AR at 480).
The Court agrees that these observations by Dr. Koewler could be construed as
inconsistent with his later restrictive conclusions. See AR at 480.
The ALJ made it clearer that he considered the fourth factor – consistency
between the opinions and the record evidence. See 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4) (“Consistency. Generally, the more consistent an opinion is with the
record as a whole, the more weight [the ALJ] will give to that opinion.”). ALJ Juge wrote
at length about the inconsistencies between examination notes of Dr. Koewler and Dr.
Mattox due to Plaintiff’s elaborations and exaggerations from one exam to the next. AR
at 20. The ALJ noted Dr. Mattox’s observation that Plaintiff “clearly wanted him to
comment on his candidacy for disability.” AR at 20. Plaintiff reported “hospitalization at
age 20 for suicidal ideation to Dr. Koewler[,]” and changed the story to “attempted
suicide at age 18 or 19 to Dr. Mattox . . . .” AR at 20. He revised from a report to Dr.
Koewler of “sexual molestation at age 6 . . . to sexual molestation by two men on the
same night at age 6 to Dr. Mattox . . . .” AR at 20. Finally, Plaintiff changed his “report of
not trusting people to Dr. Koewler to reports of paranoia regarding fears that people
would poison his drinks and extreme measures of setting up surveillance cameras
throughout his property to Dr. Mattox.” AR at 20.
The ALJ’s decision also implicitly considers the inconsistencies between Dr.
Wewerka’s review and the record evidence. Dr. Wewerka’s review of the record on
reconsideration is dated April 30, 2013. See AR at 112. The Court finds it significant that
Dr. Wewerka was able to review Dr. Sadziene-Bessinger’s notes and Dr. Koewler’s
evaluation, but she did not have the benefit of Dr. Mattox’s 2014 treatment notes, nor
could she see the inconsistencies and exaggerations the ALJ found important. Because
Dr. Wewerka largely based her findings on Dr. Koewler’s Mental RFC, the ALJ’s
reasoning for giving Dr. Koewler’s findings “little weight” also applies to Dr. Wewerka’s
Unrelated to these inconsistencies, the ALJ also found it notable that Plaintiff
indicated in a self-prepared function report “that his limited abilities were the result of
physical impairments and pain rather than mental impairments.” AR at 20 (citing AR at
280–88). Plaintiff described his abilities to “care for his three children and pets with
some assistance from his girlfriend, perform daily personal care, occasionally prepare
meals, perform light household chores, drive a car, go out alone, shop in stores, handle
money, watch television, spend time with his children, spend time with others once a
week, lift 40 pounds, follow spoken and written instructions, pay attention, get along with
others, handle stress and changes in routine, and he needed no reminders to take
medication or care for personal grooming.” AR at 20-21 (citing AR at 280-88). The Court
agrees that these self-reported abilities could be construed as inconsistent with Dr.
Koewler’s and Dr. Wewerka’s restrictive limitations.
Finally, there is evidence the ALJ implicitly considered the sixth deference factor
in his discussion of Plaintiff’s failure to report or disclose certain facts. See AR at 26;
see also 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6) (“Other factors. When we consider
how much weight to give to a medical opinion, we will also consider any factors you or
others bring to our attention, or of which we are aware, which tend to support or
contradict the opinion.”). In assessing Plaintiff’s RFC, the ALJ found it noteworthy that
Plaintiff failed to disclose his relevant post-injury work history or report his left shoulder
re-injury while driving an all-terrain vehicle. AR at 26. The ALJ also mentioned Plaintiff’s
“history of opioid abuse/dependence, his current abuse of prescription narcotics (taking
5 a day instead of the prescribed 4 a day), . . . and his hearing testimony that he
completed the 9th grade when in fact he reportedly obtained a GED . . . .” AR at 26
(citing AR at 479). The fact that Plaintiff was employed after his injury detracts from the
restrictive medical opinions regarding Plaintiff’s alleged marked and moderate mental
limitations. Further, Plaintiff’s questionable credibility, along with Dr. Mattox’s
observation that Plaintiff “clearly wanted him to comment about him being a candidate
for disability” and that he should “rule out malingering[,]” detract from Plaintiff’s selfreported limitations to Dr. Koewler that contributed to Dr. Koewler’s (and Dr. Wewerka’s)
restrictive limitations. See AR at 20, 26, 544.
Plaintiff offers little record evidence and no authority to establish that the weight
the ALJ assigned to either opinion was incorrect. Doc. 15 at 22-23. Plaintiff states that
Dr. Koewler found Plaintiff “had low to average intelligence, . . . chronic severe anxiety,
and a moderate degree of depression related to a dysfunctional family background and
ongoing stress and were [sic] exacerbated by current health problems. Doc. 15 at 22
(citing AR at 480). Plaintiff contends that these findings provide a basis for Dr. Koewler’s
restrictive limitations. Doc. 15 at 23 (citing AR at 480).
Plaintiff further contends the ALJ ignored the opinion of State agency
psychologist Dr. Wewerka. Doc. 15 at 21. Plaintiff argues that Dr. Wewerka’s opinion
supports a finding that Plaintiff’s “ability to perform is presumptively impaired.” Doc. 15
at 21-24. Plaintiff fails to develop this argument, however, and ignores the ALJ’s
discussion of Dr. Wewerka’s findings. Doc. 15 at 21-24; see also AR at 27.
While the issue may be a close one, the Court ultimately finds that the ALJ gave
sufficient reasons for his decision to give Dr. Koewler’s and Dr. Wewerka’s opinions little
weight, and that substantial evidence supports the ALJ’s conclusions regarding those
opinions. See Lax, 489 F.3d at 1084. As is required, “a reasonable mind might accept”
the relevant evidence to support the ALJ’s determination. See id. (quotations omitted)).
Even if Plaintiff’s argument is to be accepted and the record evidence could be
construed to also have supported contrary findings, the Court “may not ‘displace the
agenc[y's] choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo.’” Id.
(quotation omitted). Accordingly, the Court will deny Plaintiff’s motion with respect to this
The ALJ relied on other record evidence to make his ultimate
findings regarding Plaintiff’s mental impairments.
Third, Plaintiff asserts that “[e]ven if it had been permissible to reject these
medical opinions, ALJ Fuge [sic] was left with no medical opinions on which to base his
ultimate findings regarding [Plaintiff’s] mental impairments and its [sic] impact on his
RFC.” Doc. 15 at 24. While Plaintiff’s assertion is factually correct, as there is no
Medical Source Statement or other mental health evaluation prepared by a medical
source other than Dr. Koewler or Dr. Wewerka, the ALJ did have other medical
evidence in the record to rely on in making his findings: the treatment notes from
Plaintiff’s treating physicians, Dr. Mattox and Dr. Sadziene-Bessinger. See AR at 43846, 543-47.
Plaintiff cites no authority for the proposition that an ALJ is required to obtain
another consultative evaluation if he gives little weight to the one previously ordered,
nor can the Court find any such authority. Rather, the Court notes that “the burden to
prove disability in a social security case is on the claimant[,]” and “the Secretary has
broad latitude in ordering consultative examinations.” Hawkins v. Chater, 113 F.3d
1162, 1164, 1166 (10th Cir. 1997) (citing Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir.
1991) (internal citation omitted); Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774,
778 (10th Cir. 1990)).
The regulations provide that “[i]f we cannot get the information we need from
your medical sources, we may decide to purchase a consultative examination.” 20
C.F.R. § 404.1519(a). In Hawkins, the Tenth Circuit considered the issue of whether the
ALJ erred in failing to order a consultative examination at all. 113 F.3d at 1166. The
Hawkins court observed, “it is clear that, where there is a direct conflict in the medical
evidence requiring resolution, see 20 C.F.R. § 404.1519a(b)(4), or where the medical
evidence in the record is inconclusive, see Thompson v. Sullivan, 987 F.2d 1482, 1491
(10th Cir. 1993), a consultative examination is often required for proper resolution of a
disability claim.” Id.; see also Standards for Consultative Examinations and Existing
Medical Evidence, 56 Fed. Reg. 36932-01, 1991 WL 142361, at *36932 (Aug. 1, 1991)
(noting that “[w]hen the evidence in the individual’s case file is insufficient for making a
disability decision, a consultative examination is purchased, at Government expense,
from the treating source whenever possible”). It is also clear that “[i]f evidence from the
claimant’s treating doctor is inadequate to determine if the claimant is disabled, an ALJ
is required to recontact a medical source, including a treating physician, to determine if
additional needed information is readily available.” Robinson, 366 F.3d at 1084
(citations omitted); see also 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1). Plaintiff does
not argue that the remaining record evidence from Plaintiff’s treating physicians was
inconclusive, insufficient, inadequate, or conflicting. See Docs. 15, 22. Here, the ALJ
had sufficient medical evidence in the record to consider, and it is clear to the Court that
the ALJ relied on the treatment notes of both Dr. Sadziene-Bessinger and Dr. Mattox.
AR at 18-20 (detailing evidence of record from Dr. Sadziene-Bessinger and Dr. Mattox),
22 (asserting that the ALJ considered the opinion evidence). See also 20 C.F.R.
§ 404.1512. The Court will deny Plaintiff’s motion with respect to this issue.
The ALJ’s reliance on the Grids was appropriate.
As a follow-up to his argument that the ALJ failed to consider Plaintiff’s mental
impairments in assessing the RFC, Plaintiff also contends his nonexertional limitations
“prevent him from performing a substantial majority of the jobs within” the light work
exertional category – thus, the ALJ erred in relying on the Grids without expert
vocational testimony. Doc. 15 at 24 (noting that “if the claimant has nonexertional
limitations that prevent him from performing a substantial majority of the jobs within a
particular exertional category, the Grids may only be used as a framework, and expert
vocational testimony is required”) (citing Thompson, 987 F.2d at 1488). Because the
Court found that the ALJ properly considered Plaintiff’s non-severe mental impairments
in assessing the RFC, this argument also fails.
“The Grids are based on the four relevant factors contained in the Social Security
Act: physical ability, age, education, and work experience.” Holden v. Astrue, No. 11CV-096-PJC, 2012 WL 1753006, at *11 (N.D. Okla. May 16, 2012). “They provide a
‘shortcut’ of rules that determine whether jobs exist in significant numbers that a
claimant with certain characteristics can perform.” Id. (citing Daniels v. Apfel, 154 F.3d
1129, 1132 (10th Cir. 1998); Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995)). “The
grids should not be applied conclusively in a particular case . . . unless the claimant
could perform the full range of work required of that [RFC] category on a daily basis and
unless the claimant possesses the physical capacities to perform most of the jobs in
that range.” Thompson, 987 F.2d at 1488 (citations omitted); see also Holden, 2012 WL
1753006, at *2 (citing Soc. Sec. Ruling 83-11, Titles II & XVI: Capability to do Other
Work – the Exertionally Based Medical-Vocational Rules Met, 1983 WL 31252, at *2
(Jan. 1, 1983) (“the RFC required for the Grids ‘reflects an exertional capability sufficient
to allow performance of substantially all of the primary strength activities required in the
range of work existing at the specified level’”); Allen v. Barnhart, 357 F.3d 1140, 114243 (10th Cir. 2004)). “The mere presence of a nonexertional impairment does not
preclude reliance on the grids[,]” the impairment “must interfere with the ability to work.”
Thompson, 987 F.2d at 1488 (citations omitted).
Here, the ALJ determined Plaintiff is able to perform the full range of light work.
AR at 21. Plaintiff does not argue in this section of his brief that he cannot physically
perform the full range of work required. Plaintiff has advanced no argument that the use
of the Grids was improper beyond his contentions that the ALJ failed to consider either
the opinions of Dr. Koewler or Dr. Wewerka or Plaintiff’s non-severe mental limitations
in assessing the RFC. See Doc. 15 at 24-25. The Court has already ruled against
Plaintiff on those issues. In finding that Plaintiff’s mental limitations are non-severe and
he is capable of performing a full range of light work, the ALJ implicitly found that
Plaintiff’s mental impairments are not significant. See Thompson, 987 F.2d at 1488,
(holding that an ALJ may not rely “on the grids unless he finds (1) that the claimant has
no significant nonexertional impairment, (2) that the claimant can do the full range of
work at some RFC level on a daily basis, and (3) that the claimant can perform most of
the jobs in that RFC level”). The ALJ’s determination that Plaintiff was able to perform
the full range of light work was, therefore, appropriate, so the ALJ’s “use of the Grids
[was] proper, and VE testimony [was] not required.” See Holden, 2012 WL 1753006, at
*2 (citing Thompson, 987 F.2d at 1488; Gossett v. Bowen, 862 F.2d 802, 806 (10th Cir.
1989) (“Automatic application of the grids is appropriate only when a claimant’s RFC,
age, work experience, and education precisely match a grid category”) (internal citations
omitted)). The Court will deny Plaintiff’s motion on this issue.
The Court finds that the ALJ’s analysis was adequate, and substantial evidence
supports the ALJ’s findings. The Court will deny Plaintiff’s motion.
IT IS ORDERED that Plaintiff’s Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 15) is denied. A final order pursuant to Rule 58 of
the Federal Rules of Civil Procedure will issue affirming the decision of the Acting
Commissioner and dismissing this action with prejudice.
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent
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