Bernal v. Social Security Administration
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Gregory B. Wormuth. Objections to R&R due by 1/23/2018. (bni)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FRANK ANTHONY BERNAL,
Civ. No. 16‐1365 JAP/GBW
NANCY BERRYHILL, Acting
Commissioner of the Social
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the Court on Plaintiff’s Motion to Remand the Social
Security Agency (“SSA”) decision to deny Plaintiff Supplemental Security Income
(“SSI”). Doc. 25. For the reasons explained below, I recommend denying Plaintiff’s
motion and affirming the judgment of the SSA.
On February 6, 2013, Plaintiff filed applications for SSI and Social Security
Disability Insurance Benefits (“SSDI”), alleging a disability onset date of June 1, 1998.
Administrative Record (“AR”) at 74, 80, 204. Plaintiff alleged that he had a disability
resulting from testicular cancer and head injury. AR at 82, 105. The claims were
initially denied on December 18, 2013, and upon reconsideration on April 11, 2014. AR
at 73‐113. Thereafter, Plaintiff filed a written request for a hearing on June 3, 2014. AR
at 134‐35. An Administrative Law Judge (“ALJ”) held a hearing on October 19, 2015.
AR at 34‐70. During the hearing on his SSI and SSDI applications, Plaintiff amended his
disability onset date to February 6, 2013, which post‐dates his date last insured in 2001.
AR at 35‐36. Accordingly, Plaintiff voluntarily withdrew his request for a hearing on
his SSDI application, resulting in the dismissal of that application. AR at 36, 13.
Therefore, this appeal concerns Plaintiff’s SSI application only.
On December 1, 2015, the ALJ issued an unfavorable decision on Plaintiff’s SSI
application, concluding that Plaintiff was not disabled. AR at 13‐27. Plaintiff appealed
the denial of his application to the Appeals Council, which declined review on
November 7, 2016. AR at 1‐7. Plaintiff filed suit in this Court on December 15, 2016,
seeking review of the ALJ’s decision. Doc. 1.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a court may review a final decision of the
Commissioner only to determine whether it (1) is supported by “substantial evidence”
and (2) comports with the proper legal standards. Casias v. Sec’y of Health & Human
Servs., 933 F.2d 799, 800‐01 (10th Cir. 1991). “In reviewing the ALJ’s decision, we
neither reweigh the evidence nor substitute our judgment for that of the agency.”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotations omitted).
Substantial evidence is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Casias, 933 F.3d at 800. “The record must demonstrate that the ALJ considered all of the
evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v.
Chater, 79 F.3d 1007, 1009‐10 (10th Cir. 1996). “[I]n addition to discussing the evidence
supporting his decision, the ALJ must also discuss the uncontroverted evidence he
chooses not to rely upon, as well as significantly probative evidence he rejects.” Id. at
1010. “The possibility of drawing two inconsistent conclusions from the evidence does
not prevent [the] findings from being supported by substantial evidence.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007).
Plaintiff asserts that the ALJ committed reversible error on the grounds that the
ALJ (1) improperly determined that Plaintiff’s borderline intellectual impairment does
not meet or medically equal Listing 12.05C, for intellectual disability; (2) failed to
analyze whether Plaintiff’s borderline intellectual impairment met Listing 12.02, for
neurocognitive disorders; (3) improperly afforded only some weight to the medical
opinion of consultative psychological examiner Michael Emery, Ph.D.; and (4) did not
comport with proper legal standards in step five of the sequential disability analysis by
failing to resolve inconsistencies in the testimony of the vocational expert (“VE”). See
doc. 25 at 5‐17; doc. 28.
Defendant argues that there was no reversible error, because (1) substantial
evidence supported the ALJ’s finding that Plaintiff did not have a disabling listing‐level
mental impairment, (2) the ALJ provided proper reasons for discounting Dr. Emery’s
opinion, and (3) the ALJ comported with the applicable legal standards when
performing step five of her disability analysis, because the VE’s testimony contained no
inconsistencies. See doc. 27 at 5‐13. Ultimately, I recommend finding that the ALJ did
not commit reversible error, and that the opinion should be affirmed.
A. Legal Standard
For purposes of SSI benefits, an individual is disabled 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. § 1382c(a)(3)(A). To determine whether a person satisfies these criteria, the SSA
has developed a five‐step test. See 20 C.F.R. § 416.920. If the Commissioner finds an
individual disabled at any step, the next step is not taken. Id. § 416.920(a)(4).
At the first four steps of the analysis, the claimant has the burden 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 that either (3) his impairments meet or equal
one of the “Listings” of presumptively disabling impairments; or (4) he is unable to
perform his “past relevant work.” Id. § 416.920(a)(4)(i–iv); Grogan v. Barnhart, 399 F.3d
1257, 1261 (10th Cir. 2005).
Step four of this analysis consists of three phases. Winfrey v. Chater, 92 F.3d 1017,
1023 (10th Cir. 1996). First, the ALJ determines the claimant’s residual functional
capacity (“RFC”) in light of “all of the relevant medical and other evidence.” 20 C.F.R.
§ 416.945(a)(3). A Plaintiff’s RFC is “the most [he] can still do despite [physical and
mental] limitations.” Id. § 416.945(a)(1). Second, the ALJ determines the physical and
mental demands of the claimant’s past work. “To make the necessary findings, the ALJ
must obtain adequate ‘factual information about those work demands which have a
bearing on the medically established limitations.’” Winfrey, 92 F.3d at 1024 (quoting
Social Security Ruling 82‐62 (1982)). Third, the ALJ determines whether, in light of the
RFC, the claimant is capable of meeting those demands. Id. at 1023, 1025.
If the ALJ concludes that the claimant cannot engage in past relevant work, he or
she proceeds to step five of the evaluation process. At step five, the burden of proof
shifts to the Commissioner to show that the claimant is able to perform other work in
the national economy, considering the claimant’s residual functional capacity, age,
education, and work experience. Grogan, 399 F.3d at 1257.
B. The ALJ’s Decision
On December 1, 2015, the ALJ issued a decision denying Plaintiff’s application
for SSI benefits. See AR at 13‐27. In denying Plaintiff’s application, the ALJ applied the
five‐step sequential analysis. At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since February 6, 2013, the application date and alleged
disability onset date. AR at 15. At step two, the ALJ determined that Plaintiff had the
following severe impairments: arthritis of the right knee, borderline intellectual
impairment, depression, and anxiety disorder. AR at 16. At step three, the ALJ
concluded that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity” of one of the listed impairments. AR at 17.
At step four, the ALJ determined that Plaintiff has an RFC to perform light work,
with certain limitations. AR at 19. Specifically, the ALJ determined that Plaintiff can:
lift, carry, push, and pull twenty pounds occasionally and ten pounds
frequently. The claimant is able to occasionally kneel, crawl, crouch, and
squat. The claimant is limited to performing simple, routine, and
repetitive tasks. The claimant can meet end of day goals, but is unable to
perform at a production pace. The claimant is limited to occasional
contact with supervisors and co‐workers and incidental contact with the
public. The claimant is limited to making simple, work‐related decisions
in a workplace with few changes in a routine work setting. The claimant
is limited to communicating simple information and understanding
simple, oral instructions.
AR at 19‐20.
Also at step four, the ALJ found that Plaintiff is unable to perform any past
relevant work. AR at 25. However, at step five, the ALJ found that Plaintiff could
perform jobs that exist in significant numbers in the national economy, including (1)
housekeeper (DICOT 323.687‐014, 1991 WL 672783), (2) garment sorter (DICOT 222.687‐
014, 1991 WL 672131), and (3) presser (DICOT 363.685‐022, 1991 WL 673022). AR at 27.
Consequently, the ALJ determined that Plaintiff was not disabled. Id.
A. The ALJ properly found that Plaintiff’s impairment did not meet or
medically equal Listing 12.05C at step three of her disability analysis.
Plaintiff asserts that the ALJ erred at step three when finding that Plaintiff’s
intellectual impairment did not meet or medically equal Listing 12.05C (Intellectual
Disability). Doc. 25 at 8‐10, doc. 28 at 1‐3. For the following reasons, I recommend that
the Court reject Plaintiff’s argument and find that the ALJ reasonably concluded that
Plaintiff did not have an impairment or combination of impairments that met or
medically equaled Listing 12.05C.
The “listings” at issue here are a list of particular impairments that the SSA has
compiled to represent those conditions “severe enough to prevent a person from doing
gainful activity, regardless of his or her age, education or work experience.” 20 C.F.R. §
416.925(a). As a result, a showing that Plaintiff’s conditions are equivalent to one or
more of these listings requires an automatic finding of disability at step three. 20 C.F.R.
§ 416.920(a)(4)(iii); see also Sullivan v. Zebley, 493 U.S. 521, 534 (1990). In order to make
such a showing, Plaintiff has the burden to prove that his impairment meets “all of the
specified medical criteria” for the listing. Id. at 530. Listing 12.05C (Intellectual
Disability) has two specified medical criteria. First, as explained in the capsule
definition of “intellectual disability,” the individual must have significantly sub‐average
general intellectual functioning with deficits in adaptive functioning that initially
manifested before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05 (2015).1 Second, a
qualifying individual under Paragraph C of the Listing must have a valid verbal,
performance, or full scale IQ score of 60 through 70 with a physical or other mental
impairment imposing an additional and significant work‐related limitation of function.
The ALJ concluded that Plaintiff failed to prove that his impairments met Listing
12.05C, because he did not prove that he met the first prong. AR at 19. Although the
ALJ acknowledged that Plaintiff had received a verbal score of 70 on an IQ test, she
noted that Plaintiff was 46 years old when Dr. Emery conducted this test in November
2014. Id. Therefore, as she explained, there is no evidence of record demonstrating that
Plaintiff’s sub‐average intellectual functioning manifested before age 22, other than
Plaintiff’s unsubstantiated claim that he received special education in school. Id. Given
the wide range of issues which can precipitate “special education,” this unconfirmed
testimony was insufficient to meet Plaintiff’s burden at step three to show that his
impairment met the criteria of Listing 12.05C.
The ALJ’s uncertainty regarding the period of development of Plaintiff’s sub‐
average intellectual functioning was exacerbated by the facts that Plaintiff, after age 22,
suffered a serious head injury after being struck by a truck in 1998, and that he has
The Listings are frequently updated, and the most recent version took effect August 22, 2017. This
citation properly refers to the version in effect at the time of the ALJ’s decision on December 1, 2015. See
Chapo v. Astrue, 682 F.3d 1285, 1291 n.5 (10th Cir. 2012).
persistently abused drugs. Id. In support of this concern, the ALJ noted that Dr. Emery,
after performing the November 2014 IQ test, determined that “it is not possible to sort
out whether [the score of 70] is native intelligence . . . or a result of the head injury or
both. There are no records.” AR at 19, 461.
Plaintiff contends that the facts that he suffered a head injury and engaged in
drug use after 22, factors that could worsen his intellectual functioning, do not prove
that he did not have sub‐average intelligence before age 22. Doc. 25 at 9; doc. 28 at 3. In
so arguing, Plaintiff misstates his burden. The ALJ could not presume Plaintiff’s
deficits in adaptive functioning developed prior to age 22 merely because they existed
at age 46. Rather, Plaintiff was required to prove the manifestation of such impairment
prior to age 22. He failed to do so. As a result, because the Plaintiff failed to meet his
burden to prove that he met the criteria required by 12.05C, the ALJ properly found that
Plaintiff’s impairment did not meet the Listing.
Plaintiff additionally argues that the ALJ erred by failing to analyze whether
Plaintiff’s impairments medically equaled Listing 12.05C. Doc. 25 at 9‐10; doc. 28 at 2‐3.
The ALJ did not err, because in order for impairment to medically equal a listed
impairment, “it must first be shown that the capsule definition of that impairment is
satisfied,” requiring a showing of significantly sub‐ average general intellectual
functioning manifested before age 22. 2 See POMS DI 24515.056(B)(1), (D)(1)(c); 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 12.05 (2015). Again, Plaintiff did not prove that his
impairment manifested before age 22. Thus, Plaintiff’s condition did not medically
equal Listing 12.05C. As a result, the ALJ’s failure to analyze whether Plaintiff’s
condition medically equaled Listing 12.05C constitutes harmless error. As a result, the
Court should reject Plaintiff’s argument on this point.
B. The ALJ’s failure to discuss Listing 12.02 and its potential applicability
to Plaintiff does not constitute reversible error.
Plaintiff next argues that the ALJ erred by failing to consider whether Plaintiff
met Listing 12.02. Doc. 25 at 10‐11; doc. 28 at 3‐4. Specifically, Plaintiff contends that,
since the ALJ concluded Plaintiff did not meet Listing 12.05C due to Plaintiff’s failure to
show that his deficits in adaptive functioning developed prior to age 22, the ALJ was
required to consider whether Plaintiff met the criteria of Paragraphs A and B of Listing
12.02 (Organic Mental Disorders),3 which deals with “[p]sychological or behavioral
The SSA provides that, in cases of borderline intellectual functioning where the claimant ‘s conditions
may not “meet” Listing 12.05C, the claimant can show that their condition medically equals Listing
12.05C when claimant’s valid IQ scores range between 70 and 75 in prong two of the analysis, rather than
between 60 and 70, as required to “meet” Listing 12.05C. POMS DI 24515.056 (D)(1)(c).
3 Plaintiff refers to this Listing as “Neurocognitive Disorders,” which is the current title of Listing 12.02.
Doc. 25 at 10. As already noted, the most recent version of the Listings became effective August 22, 2017.
Plaintiff’s briefing refers to the title and accompanying criteria of Listing 12.02 that are contained in that
most recent version, which differ from the title and accompanying criteria contained in the version in
effect at the time of the ALJ’s decision. See id. at 10‐11; see also 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.02
(Aug. 22, 2017). The Court must apply the criteria of the governing provision that was in effect on
December 1, 2015, when the ALJ issued her unfavorable decision. See Chapo, 682 F.3d at 1291 n.5.
Accordingly, the undersigned discusses only those criteria from the “Organic Mental Disorders” Listing
that were effective between August 12, 2015 and May 23, 2016. Notably, despite the differences in the
abnormalities associated with a dysfunction of the brain” where certain medical
evidence demonstrates “the presence of a specific organic factor judged to be
etiologically related to the abnormal mental state and loss of previously acquired
functional abilities.” Id.; 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.02 (Aug. 12, 2015). To
qualify under those paragraphs, a claimant must first demonstrate that he suffers from
“a loss of specific cognitive abilities or affective changes” under Paragraph A. Id. §
12.02A. Paragraph A also requires the medically documented persistence of at least one
of the following: (1) disorientation to time and place; (2) memory impairment; (3)
perceptual or thinking disturbances; (4) change in personality; (5) disturbance in mood;
(6) emotional lability and impulse control impairment; or (7) loss of measured
intellectual ability of at least 15 IQ points from premorbid levels or overall impairment
index clearly within the severely impaired range. Id. Further, under Paragraph B, a
claimant must show that the criteria met under Paragraph A have resulted in at least
two of the following: (1) marked restriction in activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of
extended duration. Id. § 12.02B.
Although at first glance, Listing 12.05 and Listing 12.02 may seem related, they
are not as closely linked as Plaintiff contends. Rather, Listing 12.02 considers seven
titles and some of the criteria between the 2015 and 2017 versions of Listing 12.02, application of the
current version would not dispositively alter my analysis.
entirely different specified medical criteria than those considered in Listing 12.05C. 20
C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.02A(1)‐(7), 12.05C.
Most importantly, the ALJ was not required to consider Listing 12.02, because
the ALJ should “’be entitled to rely on the claimant’s counsel to structure the present
claimant’s case in a way that the claimant’s claims are adequately explored,’ and the
ALJ ‘may ordinarily require counsel to identify the issue or issues requiring further
development.’” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (quoting
Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997)). Plaintiff was represented by
counsel in the proceedings before the ALJ, and counsel did not raise Listing 12.02 as a
basis for a finding of disability before the ALJ. However, Plaintiff argues that, because
non‐examining psychologist Dr. Renate Wewerka mentions the listing in her analysis,
the ALJ should have performed a 12.02 Listing analysis in her opinion. Doc. 28 at 3. It
is not the ALJ’s responsibility to adopt counsel’s role by crafting counsel’s arguments
for them. See Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir. 2008) (“the ALJ is not
required to act as the claimant’s advocate.”). Plaintiff had the burden of presenting
evidence that established that his impairments met or equaled the listing. Fischer‐Ross v.
Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). His counsel did not so much as mention
Listing 12.02. As such, the ALJ committed no error by failing to analyze the
applicability of Listing 12.02 in her opinion.
However, even if the ALJ were required to consider Listing 12.02, her failure to
do so constitutes harmless error, because although the ALJ concluded Plaintiff failed to
prove that his sub‐average intellectual functioning developed prior to age 22,
substantial evidence similarly indicates that he failed to prove that his functioning had
declined over time. He simply provided no records providing clarity on the matter. AR
at 461. Neither determination can be unmistakably made, nor is it the ALJ’s role to
speculate. Furthermore, in her opinion, the ALJ ruled out the applicability of Listings
12.04, 12.05, and 12.06, which share some of the exact criteria needed to satisfy Listing
12.02. Specifically, as noted above, to qualify as disabled under Listing 12.02, a claimant
is required to meet the Paragraph B criteria. The Paragraph B criteria of Listing 12.02
are identical to the Paragraph B criteria of Listings 12.04 and 12.06, and to the Paragraph
D criteria of Listing 12.05, all of which the ALJ considered and explicitly found were not
met. See AR at 17‐18; see also 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.02B, 12.04B,
12.05D, 12.06B. The ALJ thoroughly discussed the evidence of record pertaining to
these criteria, and ultimately concluded that “[b]ecause [Plaintiff’s] mental impairments
do not cause at least two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’
episodes of decompensation, each of extended duration, the ‘paragraph B’ criteria [of
Listings 12.04 and 12.06] (‘paragraph D’ criteria of listing 12.05) are not satisfied.” AR at
18. As such, had the ALJ analyzed the applicability of Listing 12.02, she would have
similarly concluded that Plaintiff’s impairment did not meet or medically equal that
listing. In consideration of the foregoing, the Court should reject Plaintiff’s second
C. The ALJ properly treated the opinion evidence of Dr. Emery.
Plaintiff asserts that the ALJ committed reversible error by improperly affording
only “some weight” to the state agency examining psychologist Dr. Emery’s medical
opinion when assessing Plaintiff’s RFC. Doc. 25 at 12‐16; doc. 28 at 4‐5. For the
following reasons, the Court should find that the ALJ properly considered Dr. Emery’s
In determining a claimant’s RFC, an ALJ “is required to consider all of the
claimant’s medically determinable impairments, singly and in combination.” Salazar v.
Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). While an ALJ “need not discuss all of the
evidence in the record, he may not ignore evidence that does not support his decision,
especially when that evidence is significantly probative.” Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (quotations omitted).
Specifically, to determine what weight to give to a medical opinion, the ALJ must
consider the following factors:
(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.
Goatcher v. U.S. Depʹt of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing
20 C.F.R. § 404.1527(c)(2)‐(6)); see also Kilpatrick v. Astrue, 502 F. App’x 801, 806 (10th Cir.
In the case at bar, the ALJ properly based her reasons for only assigning “some
weight” to Dr. Emery’s opinion on “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Casias, 933 F.3d at 800. First, the ALJ
noted that Dr. Emery’s opinion that Plaintiff had marked social limitations was
inconsistent with examination notes throughout the medical record. AR at 24. For
example, the ALJ underscored that, throughout the record, Plaintiff is described as
“cooperative,” “with an appropriate mood and affect.” Id. Second, the ALJ explained
that Dr. Emery’s conclusion that Plaintiff is markedly limited in social functioning is
additionally inconsistent with Plaintiff’s daily activities, which reveal that Plaintiff has
an active social life. Id. For example, the ALJ noted that Plaintiff testified during the
hearing that he spends a lot of time with his friends, watching games, enjoying the
outdoors and the mountains, and hosting those friends at his home every other
weekend. AR at 23, 24. The ALJ, in so noting, demonstrated that she had a foundation
for believing that such activities are at odds with a finding that Plaintiff suffers from
marked social limitations. Third, the ALJ concluded that Dr. Emery’s finding that
Plaintiff suffered from markedly limited cognitive skills was inconsistent with Dr.
Emery’s own treatment notes. AR at 24. For example, the ALJ noted that Dr. Emery
had determined that Plaintiff was capable of handling his own finances independently,
an ability that requires a certain level of cognitive functioning that arguably surpasses
abilities held by those with marked cognitive limitations. Id. These three reasons
constitute substantial evidence justifying the ALJ’s decision to assign only “some
weight” to Dr. Emery’s opinion.
Although a de novo reviewer might make a different determination when looking
at the same evidence, this is not the applicable standard of review. Instead, “the
possibility of drawing two inconsistent conclusions from the evidence does not prevent
[the] findings from being supported by substantial evidence.” Lax, 489 F.3d at 1084.
Because the ALJ supported her finding with substantial evidence and comported with
proper legal standards in doing so, the Court should find that her assignment of only
“some weight” to Dr. Emery’s opinion was proper. Consequently, the Court should
reject Plaintiff’s third argument.
D. The ALJ comported with proper legal standards when performing step
five of her disability analysis.
Plaintiff next contends that the ALJ erred in step five of her disability analysis by
limiting Plaintiff to Specific Vocational Preparation (“SVP”) 2 jobs, and for failing to
“clarify” the VE’s testimony. For the following reasons, I recommend that the Court
reject Plaintiff’s argument.
The SVP is “the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average
performance in a specific job‐worker situation.” Dictionary of Occupational Titles,
App’x C (II), Components of the Definition Trailer, 1991 WL 688702. An SVP of 2
indicates that a typical worker will need up to a month to learn how to do a particular
job. Id. Plaintiff argues that the ALJ committed error by only limiting Plaintiff to an SVP
of 2 in her hypothetical posed to the VE, asserting that this SVP did not properly
accommodate Dr. Emery’s assessment that Plaintiff was moderately to markedly
limited in his ability to adapt. Doc. 25 at 16‐17; doc. 28 at 5. However, the ALJ properly
assigned only some weight to Dr. Emery’s opinion, as demonstrated above. As such,
she was not obligated to incorporate into her hypothetical a limitation that she did not
find to be supported by the evidence of record. Rather, the hypothetical that she related
to the VE properly matched the limitations later reflected in her RFC assessment. See
Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000) (rejecting a plaintiff’s challenge to
the ALJ’s hypothetical question to the VE where it merely reiterated the plaintiff’s same
challenge to the RFC determination already upheld by the court). Because the ALJ
reasonably created a hypothetical that included all the limitations that she ultimately
included in Plaintiff’s RFC, it was proper for her to rely on the VE’s answer to that
hypothetical as a basis for her disability decision. Qualls v. Apfel, 206 F.3d 1368, 1373
(10th Cir. 2000) (citing Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993)).
Further, contrary to Plaintiff’s assertion, the ALJ was not required to ask
subsequent questions or “clarify” the VE’s testimony. The ALJ specifically reminded
the VE, “if you give us an opinion which conflicts with the information in the DOT . . .
you need to advise us of the conflict and the basis for your opinion.” AR at 65. The VE
confirmed that she would abide by this duty. Id. As a result, the ALJ could properly
rely on the VE’s confirmation that her testimony was consistent with the DOT. See
Thompson v. Colvin, 551 F. App’x 944, 949 (10th Cir. 2014) (unpublished) (no duty to
resolve conflict where “the VE testified that the jobs he identified were consistent with a
hypothetical person with [the claimant’s] impairments and the DOT”). Therefore, the
ALJ comported with proper legal standards during her step five disability analysis and
was not required to do anything further. Thus, the Court should reject Plaintiff’s
argument on this point.
For the foregoing reasons, I recommend finding that Plaintiff has failed to
demonstrate that the ALJ committed reversible error. Therefore, I recommend that
Plaintiff’s Motion to Reverse and Remand (doc. 25) be DENIED and the Commissioner’s
decision be AFFIRMED.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must
file any objections with the Clerk of the District Court within the fourteen‐day period 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.
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